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DOL Returns to Prior Davis-Bacon Act Wage Definition for Construction Industry

By Elizabeth N. Hall on August 9, 2023
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Continuing with the White House’s push to revamp the employment landscape, the Department of Labor’s (“DOL”) proposed regulations for federally funded construction projects will return to the definition of “prevailing wage” that was last used in 1983.  The agency’s proposed changes to the regulations that implement the Davis-Bacon Act are intended to speed up prevailing wage updates and will increase wages for construction workers over time.

The Davis-Bacon Act sets a floor for construction workers’ wages on public works projects and requires federal contractors and subcontractors to pay construction workers the same prevailing wages and benefits depending on the location.  Prevailing wages in different locations vary based on the area’s cost of living.  The wage is calculated through surveys of the area. 

Under the current regulations, if a majority of the workers in the area are not paid the same rate, the determination of the prevailing wage uses a “weighted average” method.  This requires a survey of the prevailing wages paid to workers of a particular classification in a majority (greater than 50%) of the areas.  Total wages are divided by the number of workers in a particular classification to determine an average wage.  Under the proposed regulation, returning to a standard that had been used from 1935 to 1983, only 30% of the wages paid to workers in a particular classification in a particular area must be surveyed.  

The proposed rule contains other provisions that is meant to keep prevailing wages on pace with actual wages, grants broad authority to adopt state or local wage determinations in certain circumstances, and allows for supplemental rates if no survey data exists for a key job classification.  It also contains an anti-retaliation provision to protect workers who raise complaints.

The DOL issued its proposed rule more than a year ago and received more than 40,000 comments during a public comment period.  The new rule will go into effect 60 days after publication in the Federal Register and a court challenge is likely. 

Photo of Elizabeth N. Hall Elizabeth N. Hall

Elizabeth N. Hall is a Shareholder in the firm’s Labor and Employment practice area and serves as the Chicago office chair of the firm’s women’s affinity group, “Women at Vedder Empowering Success” (WAVES).

Ms. Hall represents a wide range of employers before state

…

Elizabeth N. Hall is a Shareholder in the firm’s Labor and Employment practice area and serves as the Chicago office chair of the firm’s women’s affinity group, “Women at Vedder Empowering Success” (WAVES).

Ms. Hall represents a wide range of employers before state and federal courts and administrative agencies, as well as in arbitral forums, defending them against various claims, including single plaintiff and class allegations of employment discrimination, failure to accommodate disabilities, sexual harassment, wrongful and retaliatory discharge, breach of contract and violations of the FMLA and wage and hour laws. Ms. Hall has successfully argued procedural and employment discrimination issues in the U.S. Court of Appeals for the Seventh Circuit and has particular expertise in managing electronic discovery teams in complex litigation.

A significant portion of Ms. Hall’s daily practice involves providing practical advice to employers regarding risk management; effective employee discipline and discharge; conducting workplace investigations; accommodating disabilities and pregnancy; workplace violence; managing leaves of absence and complying with FMLA and state leave requirements; workforce reductions; drafting and reviewing employment, recruitment and staffing agreements; policy and handbook development; wage and hour compliance; and state and federal employment laws. She frequently trains clients and employer groups on many of these topics.  Ms. Hall also has extensive experience drafting and negotiating severance, settlement and conciliation agreements on behalf of employer clients.

In 2017 and 2018, Ms. Hall was recommended by The Legal 500 United States for the Labor and Employment Disputes (including collective actions): Defense category. In 2018, she was named to the Crain’s Custom Media “Chicago Notable Women Lawyers” list. She also was selected as an Emerging Lawyer, an affiliate of Leading Lawyers, from 2015 to 2019. From 2010 to 2015, Ms. Hall was selected for inclusion as an Illinois Rising Star, and Super Lawyers named her one of the “Top Women Attorneys in Illinois” in the “Rising Star” category in 2013 and 2014.

Read more about Elizabeth N. HallEmail
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  • Posted in:
    Employment & Labor
  • Blog:
    Vedder Works
  • Organization:
    Vedder Price PC
  • Article: View Original Source

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