AGC Represents Contractors at Wage and Hour Division Stakeholder Forum

On Friday, May 21, 2010, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) held a Stakeholder Forum to discuss some of the issues and regulations that fall under their purview.  AGC attended the event and participated in sessions that addressed topics with a potential effect on the construction industry.  The Wage and Hour Division is using the theme of "Plan, Prevent, and Protect" to become a more effective enforcement agency.  Success will be measured by baseline investigations in industries where they believe violations are most likely to occur.  Construction is listed as one of the top industries on which they will focus.   A WHD official expressed that while there are no numerical targets for enforcement, results will be measured on an ongoing basis. The Deputy Administrator, Nancy J. Leppink, began the plenary session by giving an overview of the day as well as the mission of the department.   The overall theme of her remarks echoed many others at DOL under the Obama Administration, including labor secretary Hilda Solis, that enforcement is their top priority.  Driving home the point, she recognized the agency's accomplishments of hiring 250 new investigators in 2009, with 100 more new hires expected in 2010.  She also acknowledged the agency's new public service campaign, "We Can Help," which educates workers on their workplace rights while encouraging them to report employers that are violating those rights, and the new focus on the use of administrative interpretations instead of opinion letters, which she says is a "better use of agency resources" by addressing issues more broadly. Prevailing Wages & Wage Determinations Branch Chief of Construction Wage Determinations, Vanessa Shaw-Jennings, shared WHD's new goal to survey every state at least once every three years in an effort to improve the quality and timeliness of wage determinations as regulated by the Davis-Bacon and Related Acts.  Some ways that WHD is working to accomplish this goal is by collecting and reviewing certified payrolls for highway work in order to obtain accurate and up-to-date wage determinations.  In addition, WHD will work more with state agencies to gather prevailing wage rates more frequently for building and highway projects.  Currently, the adoption of prevailing wage rates from state agencies is used for highway projects only.  Keeping in line with the agency's focus on enforcement, Clarence Strain and Joseph Monticone of the government contracts enforcement and policy division discussed project investigations, particularly investigations of projects funded in-whole or in-part by the American Recovery and Reinvestment Act of 2009.  According to WHD data, there were four patterns of violations identified among contractors during those investigations including underpayments, journeymen-apprentice ratio violations, independent contractor misuse, and falsified certified payroll records. Enforcement goals for 2011 include more directed Davis-Bacon compliance investigations, prioritizing Davis-Bacon complaints and conducting prevailing wage conferences, depending on enforcement results and requests. Worker Misclassification As part of the record-keeping requirements mentioned in DOL's 2010 Regulatory Agenda, WHD is considering a proposed rule that will require employers to notify workers of their classification status and provide those workers with a summary of the analysis that led to the classification decision. In addition, Jennifer Marion, special assistant to the deputy administrator, discussed WHD's misclassification initiative, which emphasizes the detection of misclassified employees as independent contractors and involves coordinating with other DOL agencies and the U.S. Department of Treasury.  Of particular significance, she stated that all investigations related to the Fair Labor Standards Act will soon begin with an analysis of whether or not the worker has been properly classified as an employee.  For the remainder of this year and beginning in 2011, Ms. Marion described the two main worker misclassification initiatives: janitorial services and residential construction.  She also provided information on an upcoming "state forum," where DOL will meet with many state agencies in order to learn from their experiences of enforcing worker misclassification issues.  AGC has several resources available to help members comply with federal prevailing wage laws as well as worker misclassification issues.  For prevailing wage compliance, such resources include AGC's three-part webinar series on the Davis-Bacon & Related Acts and AGC's Davis-Bacon Manual on Labor Standards for Federal and Federally-Assisted Construction Contracts, which is written in a contractor-friendly manner and will be available in a revised format this fall.  DOL's Prevailing Wage Resource Book is a good tool to use along with the AGC manual.  For assistance with worker misclassification issues, AGC's webinar series, "Advanced Issues about Worker Misclassifications: What Every Contractor Needs to Know" will help to guide employers through the process of correctly identifying workers as employees or independent contractors as well as exempt or non-exempt.  This webinar will be available mid-June in the AGC Bookstore. For more information, contact Tamika C. Carter at (703) 837-5382 or cartert@agc.org.