Punching In: DOL Launches Wage Seminars for Federal Contractors

Monday morning musings for workplace watchers.

New DOL Information Sessions|Safety Commissioner Vacancies

Rebecca Rainey: The US Department of Labor wants future federal contractors and the public to study up on new prevailing-wage rules that are likely to come into play as the Biden administration continues to fuel infrastructure projects around the country.

The agency will host seminars on Feb. 27, May 15, and Aug. 29 covering requirements under the Davis-Bacon Act, the Service Contract Act, and other laws that require contractors and subcontractors on certain federally funded projects to pay laborers, mechanics, and service workers the local prevailing wage and fringe benefits.

“Prevailing wage laws empower workers by ensuring that construction and service jobs on federally funded projects across the country are good jobs with fair wages and benefits,” Wage and Hour Administrator Jessica Looman said in a statement on the seminars. “The Biden-Harris administration’s historic investments in our nation’s infrastructure provide the Wage and Hour Division an opportunity to educate employers as they compete for new federal contract opportunities that put skilled employees to work in communities across America.”

The outreach follows several large enforcement actions announced by the agency in recent months against companies that failed to follow certain requirements and pay proper wages under the Davis-Bacon Act and similar statutes.

Last week, the DOL announced that a contractor who provided temporary housing and other services to Afghan refugees at a New Jersey military base from 2021 to 2022 had paid $16 million in back wages and nearly 25,000 hours of sick leave time after the agency found it failed to provide prevailing wages to more than 2,800 workers in accordance with the Davis-Bacon Act and other federal laws.

Another DOL investigation made public in November found construction workers on a housing development project in Wisconsin were shortchanged $1.2 million when their contractor, McShane Construction Company LLC, failed to “provide subcontractors with accurate information on wage rates to pay workers in certain job classifications” as required under the Davis-Bacon law.

The education opportunities also come as the agency’s recent regulation updating how it calculates prevailing wages required by various laws is starting to have an impact.

To determine if a rate is “prevailing,” the Wage and Hour Division uses a survey process that looks at specific occupations and geographic locations. The idea behind setting a prevailing wage is to ensure that government contracts aren’t undercutting local economies by offering a lower rate of pay than the local standard.

For the first time in 40 years, the DOL issued a rule last August tweaking the formula it uses to determine whether a wage is “prevailing.” Those changes will start applying in the coming months as the Wage and Hour Division conducts new surveys to set those wage rates.

In the meantime, business groups have been fighting the rule in court, arguing that it favors union bidders and will increase the cost of federal projects.

That case is currently pending in the US District Court for the Eastern District of Texas.

READ MORE:

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• Biden’s Prevailing Wage Rule Hit With Lawsuit Targeting Julie Su
• Labor Rule Challengers Add Congressional Resolutions to Arsenal
• Clean Energy Credit Questions Linger Ahead of Labor Rules

Signage is displayed outside the U.S. Labor Department building in Washington.

Erin Scott/Bloomberg

Bruce Rolfsen: President Joe Biden and Democratic senators have been working overtime to fill open federal court judgeships—more than 170 appointments so far.

But there hasn’t been a similar push to fill two vacant posts on the independent three-member panel that hears appeals of worker safety citations, the US Occupational Safety and Health Review Commission.

The panel requires at least two commissioners to constitute a quorum that can consider appeals and issue decisions. As of Feb. 2, there were 24 cases awaiting decisions, and the oldest are two appeals referred to commissioners in October 2021.

One commission slot has been empty for nearly three years, while the other post has been vacant since April 2023. The confirmation of one commission candidate is pending in the US Senate, while there isn’t a current nominee for the other.

The commissioner drought began in March 2021 with the departure of James Sullivan, who was an employer-side attorney before his appointment.

Biden nominated Susan Harthill, a former US Department of Labor attorney, in October 2021 to fill the seat, but her nomination was withdrawn in April 2022. A month later she became chief judge and chair of the Labor Department’s Administrative Review Board.

Since then, Biden hasn’t nominated anyone else for the post.

The filled commissioner positions fell to one in April 2023 when Amanda Wood Laihow’s term expired—leaving Commission Chair Cynthia Attwood as the lone member. Attwood joined the commission in 2010 and was reappointed twice. Her term expires in April 2025.

Biden nominated Laihow for a second term in July 2023 and the nomination was approved unanimously by the Senate Health, Education, Labor and Pensions Committee in October. Her term would end in April 2029.

The full Senate hasn’t taken up Laihow’s nomination. One hurdle for her confirmation could be that she served as a Senate Republican staff member and worked for employer trade associations, giving some the perception that she’s more open to employers’ arguments contesting citations than an attorney with a labor-friendly background.

Evidence against that broad assumption, however, is the common ground Laihow and Attwood found to issue final orders for cases in 2022 and 2023.

Laihow’s confirmation could ultimately rest on whether and when Biden nominates a third commissioner to fill the 2021 vacancy. Biden’s new nominee would be expected to have a worker rights-oriented background, in theory giving employees a 2-1 edge on the commission at least until 2025, when Attwood’s term ends.

We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.