Investigation Procedures Under DBA/DBRA/CWHSSA

2. Investigation ProceduresUnder DBA/DBRA/CWHSSA

3. Davis-BaconInvestigation Procedures • Reorganization Plan No. 14 of 1950. • Davis-Bacon (DB) Labor Standards Contract Stipulations. • Specific Steps in Conducting DBA/DBRA/CWHSSA Investigations. • Conclusion of Investigation. • Report Writing. • The Hearing Process.

4. Reorganization Plan No. 14 of 1950 • DOL Functions/Responsibilities: • Determining “prevailing wages”; • Issuing regulations and standards to be observed by contracting agencies; and • Perform oversight function and has independent authority to conduct investigations. • In addition to including the contract stipulations and correct wage determinations, contracting agencies also have the authority to conduct investigations

5. Regulatory Provisions 29 CFR 5.6(b) • “The Administrator shall cause to be made such investigations as deemed necessary, in order to obtain compliance with the labor standards provisions of the applicable statutes listed in §5.1 ... Federal agencies, contractors, subcontractors, sponsors, applicants, or owners shall cooperate with any authorized representative of the Department of Labor in the inspection of records, in interviews with workers, and in all other aspects of the investigations.”

6. Why Are Employers Investigated? • WHD conducts investigations for a variety of reasons, and generally does not disclose the reason during the investigation. • Many investigations are the result of complaints, but all complaints are confidential, and investigators may not even disclose whether one has been received. • WHD also conducts investigations of business or industries for a variety of other reasons, such as high violation rates, employment of vulnerable workers, or rapid changes in the industry.

7. Preliminary Steps in Conducting Investigations • Obtain the following information: • Copy of labor standards clauses in contract; • Copy of Davis-Bacon WD in contract, including any instructions for multiple schedules; • Copies of certified payrolls; and • Employer identification number.

8. The Investigation Process • Initial conference with employer. • Examine certified payrolls. • Examine basic payroll records. • Check for compliance with apprenticeship and/or trainee requirements. • Tour site of work

9. The Investigation Process • Interview employees • Determine if a conformance is necessary. • Compute back wages and liquidated damages, if any • Final conference with employer to discuss results of the investigation

10. Initial Conference • Investigators will meet with the contractor at the beginning of the investigation to explain the laws enforced by WHD, describe the investigation procedures, and obtain information about the business, the work performed, and timekeeping and payroll procedures. • Although investigators will frequently contact the contractor prior to opening the investigation to schedule the initial conference, the investigator is not required to do so, and may conduct unannounced investigations if deemed more appropriate. • Investigators will collect information to determine which laws or exemptions apply, as well as to determine compliance.

11. Examining Records • The contractor or subcontractor shall make the records required available for inspection, copying, or transcription by authorized representatives of the contracting agency or the Department of Labor. Failure to do so may result in suspension of payment or debarment – 29 CFR 5.5(a)(3)(iii) • Information from an employer’s records will not be revealed to unauthorized persons.

12. Employee Interviews • Are essential to the investigation. • Information provided is confidential. • Interview statements should contain: • Place and date of interview; • Name and address of employer/employee; • Employment status and classification; and • Alleged violations.

13. Area Practice Surveys • There are no nationwide standard classification definitions under the DBA. • To determine proper classifications for workers employed on a Davis-Bacon covered project, it may be necessary to examine localarea practice.

14. Area Practice Surveys (cont’d) • Proper classification of the laborers or mechanics performing the work in question will be resolved by examining the classification practice(s) of contractors who performed the work in question: • On similar construction projects (building construction, residential construction, highway construction, heavy construction); • In progress in the same area (normally the same county); • During the year preceding the wage determination lock-in date for the contract in question.

15. Fry Brothers Corp.WAB Case No. 76-6, 6/14/77 • In accord with the Wage Appeals Board decision in Fry Brothers Corp., information to be considered in the area practice survey is from firms in the sector (union or non-union) whose wage rates were found to be prevailing in the area and incorporated in the applicable wage determination for each classification listed in the wage determination that may perform the work in question.

16. Area Practice Surveys - Principles • If, in the applicable wage determination, the rates listed for all the classifications that may perform the work in question are union rates: • the dispute will be resolved by examining the practice(s) of union contractors in classifying workers who have been performing the duties in question in the area. • If, in the applicable wage determination, the rates listed for all the classifications that may perform the work in question are non-union rates: • the dispute will be resolved by examining the practice(s) of non-union contractors in classifying workers who have been performing the duties in question in the area.

17. Area Practice Surveys - Principles • If a combination of union and non-union rates are listed in the wage determination for the classifications that may have performed the work in the area, the dispute will be resolved based on the combined information from: • union contractors for the classification(s) for which union rate(s) are listed; and • non-union contractors for the classification(s) for which non‑union rate(s) are listed.

18. Limited or Full Area Practice Survey • A Limited Area Practice survey is acceptable when the prevailing practice is clear based upon preliminary data. • If, in gathering preliminary data, all relevant parties contacted agree on the proper classification, the area practice is thus established (i.e., a “limited” area practice survey). • A Full Area Practice Survey is necessary when preliminary data indicate varied classification practices.

19. Full Area Practice Survey • Data documenting the numbers of workers who have performed the work in question in the area on similar construction in the specified time period determine the proper classification of the workers: • Only union sector data can be used to support a union classification and rate on the WD. • Only open shop sector data can support use of non-union classification and rate on WD. • The classification with clear majority (60%) is proper (local prevailing) classification for the work.

20. Determining Compliance • Determine compliance with prevailing wages, including FB’s. • Determine compliance with CWHSSA. • Compute any back wages and liquidated damages.

21. Computing Back Wages(40-hour workweek) Contractor employs an Electrician on the site of the work 40 hours a week. WD calls for a prevailing wage of $14.50 ($12 + $2.50 in FB’s). Employee paid $13 ($10.00 plus $3.00 in FB’s), which is the WD prevailing wage for Painters. Prevailing Wage $14.50 X 40 hours = $587.00 Employee paid $13.00 X 40 hours = $527.00 Back wages per employee $ 60.00

22. Computing Liquidated Damages under CWHSSA Liquidated damages are computed at $10 per day per CWHSSA violation. Example: S M T W T F S TOTALS Regular Time 0 10 12 13 9 8 3 55 15 weekly hours of overtime were worked on three calendar days (Thursday, Friday, Saturday) without the payment of overtime. Liquidated damages computed @ $30.

23. Conclusion of Investigation • Final Conference Procedure: • Inform contractor of investigation findings; • Detail steps to eliminate violations; • Consider additional evidence that may impact on findings (e.g., conformance); and • Request payment of back wages and any liquidated damages under CWHSSA. • Contact WHD if no agreement.

24. Disclaimer • This presentation is intended as general information only and does not carry the force of legal opinion. • The Department of Labor is providing this information as a public service. This information and related materials are presented to give the public access to information on Department of Labor programs. You should be aware that, while we try to keep the information timely and accurate, there will often be a delay between official publications of the materials and the modification of these pages. Therefore, we make no express or implied guarantees. The Federal Register and the Code of Federal Regulations remain the official source for regulatory information published by the Department of Labor. We will make every effort to keep this information current and to correct errors brought to our attention.