A U.S. Department of Labor administrative law judge (ALJ) has held that the employer, not the workers, primarily benefited from lodging used by itinerant workers hired to work on a federal dredging project away from their home communities. As a result, the employer was required under the Davis-Bacon Act to cover the full cost of the employees’ lodging expenses.
The ALJ issued the decision in the closely watched Weeks Marine case on remand from a 2015 decision by the Department’s Administrative Review Board (ARB). As previously reported, the ARB held that a “balancing of benefits” or “primary benefits” test applies to determine whether lodging expenses of employees working at a jobsite beyond commuting distance of their homes. If the lodging is primarily for the benefit and convenience of the employer, then the employer must cover the cost. More specifically, the employer must cover the actual cost, not just a reasonable cost of lodging. The employer is not required to cover the cost if the lodging is primarily for the benefit and convenience of the workers, and either the company regularly furnishes such lodging to all of its workers or such lodging is customarily furnished by other employers in the same type of business. The ARB remanded the case back to the ALJ to determine whether the facts in the present case established that the lodging primarily benefited the employer or the workers.
In finding that the lodging primarily benefited the employer, the ALJ noted that Weeks Marine needed to rely on out-of-town workers because the local workforce lacked the qualifications to perform the specialized work involved. She also considered the fact that the company paid for part of the workers’ travel-related expenses by providing transportation and subsistence allowances (in accordance with the terms of its collective bargaining agreement) to support the finding. In addition, she considered “secondary benefits” that accrued to the company because local lodging allowed the employees to work longer shifts that enabled timely completion of the project. The ALJ disregarded various evidence establishing how the lodging benefited the workers as well as evidence that the workers, consistent with the itinerant nature of work in the dredging industry, expected to be responsible for their lodging costs beyond the subsistence allowance.
Weeks Marine intends to seek review by the ARB again. AGC will continue to monitor the case and to report on significant developments. AGC is also continuing to explore opportunities to shape Davis-Bacon reform on this issue and numerous others.
For more info, contact Denise Gold, Associate General Counsel, at firstname.lastname@example.org or (703) 837-5326.