DOL Reduces Information Required on Davis-Bacon Certified Payroll Records

The U.S. Department of Labor (DOL) has issued a final rule eliminating the requirement that contractors covered by the Davis-Bacon and Related Acts include employees' home addresses and Social Security numbers (SSNs) on weekly certified payroll records submitted to contracting agencies or DOL's Wage and Hour Division.  DOL issued the rule "to better protect the personal privacy of laborers and mechanics employed on covered construction projects."  The effective date of the rule is January 18, 2009.  This means that, for covered contracts entered into as the result of an invitation for bids issued, or negotiations concluded, on or after January 18, contractors should not include in weekly transmittals employees' home addresses or full SSNs.  Instead of the SSN, contractors should provide an "individually identifying number" for each covered employee.  The purpose of the "individually identifying number" is to avoid confusion when more than one employee has the same name, and it may be the last four digits of the employee's SSN.  For covered contracts entered into previously, contractors should continue to follow the prior rule and include home addresses and full SSNs.  For those contractors using DOL Form WH-347 to submit payroll information, DOL now offers on its Web site both the old form and instructions, as well as a revised form and instructions.  The appropriate form to use depends on the timing of contract execution. In comments to the proposed rule submitted in November, AGC expressed support for the change, agreeing with DOL that the eliminating submission of such employee information is consistent with statutory mandates and helps to fulfill legitimate policy objectives, including reducing the risk of identity theft.  However, AGC noted that the proposed rule could be interpreted as prohibiting subcontractors from providing such information in weekly payrolls submitted to prime contractors, which raises concerns about a prime contractor's ability to make restitution and to avoid unfair withholdings in cases of subcontractor underpayment of wages.  In the final rule, DOL adopted AGC's suggestion to clarify that prime contractors may continue to require subcontractors to provide such employee information to the prime contractor without submission to the government.  The rule does not change the requirement that employers maintain records of the addresses and SSNs of covered workers and make the information available to government investigators upon request. The rule includes revised language for standard contractual provisions reflecting these changes.  Click here to view the complete final rule.