Davis-Bacon Update - Potential Impact on Land Surveying Crews
ACEC/MA will update this page as more information becomes available.
Update as of 10/10/2023:
Summary of Issue:
The Department of Labor issued its final rule and FAQs to update the Davis-Bacon regulations in August and the changes take effect on October 23. ACEC National worked with outside counsel – Andy Martone of Hesse Martone, who is an employment law expert and counsel to ACEC-Illinois – on the attached Davis-Bacon memorandum.
The memorandum covers questions related to survey crews, inspectors, and material testers. It also provides general guidelines for whether Davis-Bacon covers employees.
Andy Martone will present a webinar for ACEC on the Davis-Bacon rule on November 8, 2023 and ACEC National will circulate a promo and registration link soon.
On August 8, 2023, the United States Department of Labor published its long-awaited Davis Bacon rule.
The DOL’s 812 pages of rule justifications and explanations contain many substantial changes which will both expand the scope of work covered by Davis Bacon and which will change the way that the DOL administers the Act. Unless blocked by legal action, the new rule will take effect around October 23, 2023.
Many land surveying workers would be covered by Davis Bacon, especially people working on survey crews directly for the construction contractor. The new rule attempts to resolve the long-standing dispute as to whether or not survey workers are “laborers and mechanics” covered by Davis Bacon. Noting much disagreement on this subject, the Department concluded that “whether or not a specific survey crew member is covered by Davis Bacon is a question of fact which takes into account the actual duties performed by the worker and whether the duties are manual or physical in nature, including the use of tools or work of a trade”. A survey crew member who spends most of their time taking or assisting in taking measurements would likely be covered by Davis Bacon (if they do not meet the test for an exempt professional) if their work is performed on site, immediately prior to or during construction, and in direct support of construction crews. Given the broad definition of subcontractor, it does not seem to matter whether they are performing these duties as an employee of a construction contractor or as the employee of an engineering or land surveying firm.
Unless blocked by a federal court, the new Davis Bacon rule will go into effect on or about October 23, 2023. However, it is likely that several interested parties will challenge various aspects of this new rule in court. As part of these challenges, the challengers will ask the federal court to enjoin (or block) the enforcement all or part of the new rule until the court processes are resolved.
In the normal litigation process, the affected parties would file a lawsuit in federal district court challenging the Department of Labor’s authority to make the new rule, arguing that the DOL exceeded its authority by changing the scope and coverage of Davis Bacon, which only Congress has the power to do. The federal court would hear evidence, review legal briefs and filings, and issue a decision.
Following the decision of the federal district court, the matter would move up to the appellate court when the party that did not prevail before the district court files an appeal. After the appellate court has reached a decision, the matter will probably come before the United States Supreme Court for final decision.