Contractor's_Info_Guide_to_Compliance_w_Davis_Bacon_Act.pdf

2/15/2013

A CONTRACTOR’S INFORMATIONAL GUIDE TO

COMPLIANCE WITH THE

DAVIS-BACON ACT

AIR FORCE LABOR ADVISORS OFFICE

(SAF/AQC)

July 2005

July 2005 Air Force Labor Advisors Office -- Davis-Bacon Act Contractor’s Guide 2

INTRODUCTION

This informational guide covers Davis-Bacon Act (DBA) compliance methods for Air Force contractors. Basic compliance procedures will be the same on any contract subject to the DBA, but some forms and administrative procedures will vary by contracting agency. The guide is divided into three sections: laws, compliance requirements, and enforcement. This publication is intended as a general informational guide, does not replace or modify contract clauses or regulations, and is not intended as an authoritative source of Department of Labor (DOL) enforcement positions.

SECTION I: LAWS, REGULATIONS, AND RESPONSIBILITIES

(Note – Dollar thresholds apply to the government contract with the prime contractor)

The Davis-Bacon Act (DBA). The Davis-Bacon Act requires the payment of prevailing wage rates determined by the U.S. Department of Labor to all laborers and mechanics on federal construction projects in excess of $2,000. Construction includes alteration and/or repair, including painting and decorating, of public buildings or public works.

The Contract Work Hours and Safety Standards Act (CWHSSA). CWHSSA requires time and one-half payment on the basic hourly rate of pay for overtime hours worked (over 40 in any workweek) on a covered project. The CWHSSA applies to both direct Federal contracts and to indirect Federally-assisted contracts except where the assistance is solely in the nature of a loan guarantee or insurance. CWHSSA violations carry a liquidated damages penalty ($10/day per violation). CWHSSA does not apply to contracts of $100,000 or less.

The Copeland Anti-Kickback Act. The Copeland Act makes it a crime for anyone to require any laborer or mechanic (employed on a Federal or Federally-assisted project) to kickback any part of their wages. This includes reduction of wages through payroll deduction other than those specifically permitted by the Copeland regulations. The Copeland Act also requires every employer (contractor and subcontractor at any tier) to submit weekly certified payroll reports.

The Fair Labor Standards Act (FLSA). The FLSA contains Federal minimum wage rates and overtime requirements. These requirements generally apply to any labor performed and may be pre-empted by other Federal standards such as the DBA prevailing wage requirements and CWHSSA provisions. Only DOL has the authority to administer and enforce the FLSA, however, many FLSA principles (such as compensation for all hours worked) apply to DBA and CWHSSA requirements as well.

DAVIS-BACON ACT REGULATIONS. The U.S. Department of Labor has published rules and instructions concerning the DBA and other labor laws in the Code of Federal Regulations (CFR). These regulations can be found in Title 29 CFR Parts 1, 3, 4, 5, 6 and 7. Part 1 explains how the DOL develops and publishes DBA wage decisions and provides instructions on how to use those wage decisions. Part 3 describes Copeland Act requirements for payroll deductions and the submission of weekly certified payroll reports. Part 4 establishes Service Contract Act regulations primarily, however, it also contains important information on “non-construction” contracts that involve “some construction work” subject to DBA. Part 5 covers the DBA contract http://www.dol.gov/dol/allcfr/ESA/Title_29/toc.htm

July 2005 Air Force Labor Advisors Office -- Davis-Bacon Act Contractor’s Guide 3 labor standards provisions relating to DBA wage rates and the responsibilities of contractors and contracting agencies to administer and enforce the provisions. Part 6 provides for administrative proceedings enforcing Federal labor standards on construction and service contracts. Part 7 sets parameters for practice before DOL’s Administrative Review Board.

These regulations are used as the basis for administering and enforcing the laws.

CONSTRUCTION CONTRACT PROVISIONS. Each contract subject to federal DBA labor standards requirements will contain labor standards clauses and a DBA wage determination (also referred to as a wage decision).

The Labor Standards Clauses. See FAR 22.407. The labor standards clauses describe the responsibilities of the contractor concerning DBA wages and obligate the contractor to comply with the labor requirements. The labor standards clauses also provide for remedies in the event of violations, including withholding from payments due to the contractor to ensure the payment of wages and/or liquidated damages that may be found due. In addition, contractors may be suspended/debarred for up to three years for DBA violations.

Davis-Bacon Act Wage Determinations. The DBA wage determination is a listing of various construction work classifications such as Carpenter, Plumber, Electrician, etc. Each determination lists the minimum hourly wage rates and fringe benefits (where prevailing) that employees performing work in those classifications must be paid for hours worked on that contract.

CONTRACT ADMINISTRATOR RESPONSIBILITY. The contract administrator is responsible for the proper administration and enforcement of the Federal Labor Standards provisions on contracts covered by DBA requirements. The contract administrator’s duties include monitoring labor standards compliance by conducting interviews of construction workers at the job site and reviewing payroll reports, and taking any enforcement actions that may be required.

PRIME CONTRACTOR RESPONSIBILITY. The prime contractor is responsible for the full compliance with the labor standards provisions applicable to the project by all employers (the contractor and subcontractors) at any tier. The prime contractor is required to obtain a fully executed Statement and Acknowledgement SF1413 from every subcontractor on the project and submit it to the Contracting Agency. Because of the contractual relationship between a prime contractor and all subcontractors, questions regarding subcontractors should always be channeled through the prime contractor.

THE DAVIS-BACON ACT (DBA) applies to contracts over $2,000.00 for:

CONSTRUCTION, ALTERATION AND REPAIR

(INCLUDING PAINTING AND DECORATING)

OF

'PUBLIC BUILDINGS' AND 'PUBLIC WORKS'

http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/22.htm#P445_93407 http://www.gsa.gov/Portal/gsa/ep/formslibrary.do?viewType=DETAIL&formId=70B4872D16EE95A785256A26004F7EA8

July 2005 Air Force Labor Advisors Office -- Davis-Bacon Act Contractor’s Guide 4

SECTION I I: COMPLIANCE WITH THE DAVIS-BACON ACT

THE WAGE DETERMINATION

The wage determination included in the contract lists the minimum wages for the various construction work classifications. Minimum fringe benefits are also listed, if they prevail in the area for the craft. The general footnotes following the entire listing of classifications apply to all classifications. However, some classifications list footnotes that apply only to that specific classification noted.

Posting the Wage Determination. The prime contractor is responsible for posting a copy of the wage determination and a copy of the DBA poster titled “Notice to All Employees Working on Federal or Federally Financed Construction Projects” at the job site in a place that is easily accessible to all of the construction workers employed at the project. Posters are available on the DOL homepage at: http://www.dol.gov/esa/regs/compliance/posters/davis.htm

CONFORMANCE OF ADDITIONAL CLASSIFICATIONS

Conformance is required when the contract wage determination does not list all laborer and mechanic classifications needed by the contractor for performance. The conformance process establishes an enforceable minimum wage rate and fringe benefits for unlisted classes.

PROCEDURE: The contractor initiates the request after award, no more than 30 days after the classification is used on the contract. Use of the SF1444 is required.

The contractor completes blocks 2-15 of the SF1444. Each employee in the classification (or their union or legal representative, if any) must complete block 16 or an attachment with the same information. Additional information on proper conformance procedures is found on each wage determination and also at FAR 22.406-3 and FAR 52.222-6(b). The contractor submits the conformance request to the contracting officer who indicates agreement or disagreement and forwards it to the Department of Labor.

NOT CONFORMABLE:

Primary duties are covered by classification(s) already listed on the WD – Regardless of job title.

Subordinate Classifications-- If the WD lists a 'Mason', a 'Junior Mason' may not be conformed at a lower rate.

Helpers-- Helpers may only be used if the contract WD lists a helper classification for the type of work involved.

Exempt classes-- Contractor employees not performing as “laborers or mechanics” are not subject to DBA nor is a “conformance” needed or allowed.

http://www.dol.gov/esa/regs/compliance/posters/davis.htm http://www.dol.gov/esa/regs/compliance/posters/davis.htm http://www.gsa.gov/Portal/gsa/ep/formslibrary.do?viewType=DETAIL&formId=BD4C92A05177FD9C85256A2600553378

July 2005 Air Force Labor Advisors Office -- Davis-Bacon Act Contractor’s Guide 5

DOL RESPONSE: Pending a response from DOL, the contractor may pay the rate proposed. A copy of the DOL response will be furnished to the prime contractor when received. The rate set by DOL is retroactive to the date any employees first worked on the contract in the conformed classification(s). No adjustment is made to contract price. The contractor must either furnish a response copy to employees affected or post the response with the WD at the worksite.

GENERAL WAGE DETERMINATIONS

The majority of contracts are covered by published General Wage Determinations (GWDs). All current GWDs are now available on the Internet at: WDOL.GOV (Wage Determinations on Line).

REMEMBER: Contractors are obligated to the wage determination(s) contained in the specific contract for the work performed on that contract. Subsequent modifications of a wage determination DO NOT effect the rate required for employees working on the contract. If any future wage determination update applies to the contract, the contract will be modified to include it.

DOL publishes a new GWD set early each calendar year to replace the previous set. The new GWDs may include changes other than the WD numbers, and must be treated as superseding modifications. Sample GWD numbers: CA060039; UT060013; AZ060003. (Two letter state abbreviation followed by two numbers indicating the year; the final four numbers designate the specific geographic area and construction type.)

The Davis-Bacon Act requires all laborers and mechanics working on the site of work to be paid the minimum wages and fringe benefits for the work performed.

LABORERS AND MECHANICS are those persons performing manual or physical labor, including the skilled trades and apprentices. The term includes:

Working Foremen who do not meet the criteria for DOL’s “white collar” exemptions and who perform as a laborer or mechanic, must be paid in compliance with the DBA and the wage determination. The exemption criteria can be found in Title 29, Part 541 of the Code of Federal Regulations. For those that do not meet the exemption criteria, only those hours spent working as a laborer or mechanic are DBA-covered. Those hours must be compensated at the proper wage determination rate and listed on the certified payroll.

Truck Drivers working for the prime contractor or subcontractor, who are not “materialmen” or “delivery men” working for a supplier, and who spend more than incidental time hauling materials, supplies, debris and/or equipment in-and-around the job site and/or to and from the job site are subject to the DBA rates for all time spent driving at the site of work. DBA prevailing wage standards are not required for driving time away from the site of work.

Subcontractor ”Owners’ and ‘Partners” working on the site as “laborers or mechanics” are generally considered to be subject to the DBA requirements. The regulation states that the DBA rates apply to “Every person performing the duties of a laborer or mechanic...regardless of any contractual relationship which may be alleged to exist”. However, DOL’s 29 CFR Part 541 regulations must also be considered and any “executive” that meets the criteria as a “business http://www.wdol.gov/ http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_541/toc.htm http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_541/toc.htm http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_541/toc.htm

July 2005 Air Force Labor Advisors Office -- Davis-Bacon Act Contractor’s Guide 6 owner” (29 CFR 541.101) and is also engaged in “management” (29 CFR 541.102) may be exempt from the DBA requirements.

SITE OF WORK for DBA purposes is where the building or work will remain when the project is completed. The site includes batch plants, fabrication yards, job headquarters, tool yards, etc.

only if they are adjacent or virtually adjacent to the site of work. Work performed off the “site of work” is not subject to DBA. Note: DOL may include as part of the site of work other locations where a “significant portion” of the building or work is constructed. (Questions on the definition of “significant portion” should be referred to DOL.)

CLASSIFICATION: Employees must be classified by the work performed, regardless of their skill at that work or any private agreement between the contractor and employee. All DBA-covered employees must be classified in accordance with DBA ‘prevailing area practice’.

If DOL has determined that union rates are prevailing in the wage determination area for a particular craft, the employees must be classified as union firms in the area would classify employees for that work. The opposite is also true -- If the wage determination rates are not based on union rates for a particular craft, the open-shop (non-union) classification practice applies.

Determination is craft-by-craft, and may vary by craft, WD schedule, and geographic area. For example: union rates and practices may be prevailing for building project carpenters, but not for residential carpenters in the same geographic area.

Union dominance is indicated on WDs by a four-character abbreviation at the beginning of a separate “block” for that craft. For example, union dominance Carpenters rates would be listed under CARPXXXX (Xs may indicate union local number or other number internal to DOL—not significant). Classes that are not subject to union dominance are listed under the designation “SUZZ….”; with ZZ being the state name abbreviation. For example “SUND2009A 05/04/2000” indicates survey rates in North Dakota, followed by internal DOL numbers and the date of survey.

MINIMUM COMPENSATION--GENERAL: DBA work must be compensated at no less than the applicable wage determination wages and fringe benefits (FBs). A contractor may elect to pay some or all of any required FBs in “cash” (as an addition to wages), or some of the wages as FBs. In short, a contractor can comply with DBA by paying any acceptable combination of wages and FBs that equal or exceed the combined total listed on the WD. For example, if the minimum wage is listed as $15.00 per hour and the fringe benefit is listed as $3.00 per hour; the contractor must make payments equal to or exceeding the combined total of $18.00 per hour.

WAGES: Generally, wages include only the amount paid for work performed. Wages do not include any payments for lodging, meals, or employee-furnished vehicles, gas, tools, or materials. These payments are considered reimbursements for company business expenses.

Regardless of whether such payments are made to the worker or to the provider of the item, no credit is given to the employer toward the satisfaction of DBA wage/benefit rates.

July 2005 Air Force Labor Advisors Office -- Davis-Bacon Act Contractor’s Guide 7

Piecework payment is permitted if the average hourly rate in each week meets or exceeds the DBA wage and fringe benefit minimum. Overtime must be paid at 1 1/2 times the actual average hourly rate, or the contractor may establish a straight time piece rate and an overtime piece rate. An accurate record of all hours worked must be maintained for piecework employees. A common error made by contractors using this pay method is failure to maintain such a record -- this leaves them in a weak position to adequately document that their company has met the minimum rates of pay required by the DBA WD.

Apprentices and trainees must receive the percentage of the basic wage rate according to their level of progress in their apprenticeship or training program. To be paid at an apprentice or trainee rate they must be individually enrolled in a program approved by DOL’s Office of Apprenticeship Training, Employer and Labor Services (OATELS) or Employment Training Administration (ETA) or approved state program -- and be working within the stated ratio and other terms of the approved program. Contractors must submit proof of individual apprentice or trainee registration and the parts of the applicable plan showing required rates and ratios to the contracting officer. .Note: OATELS was formerly the Bureau of Apprenticeship and Training (BAT).

Helpers are allowed on Davis-Bacon Act projects ONLY if the classification appears on the WD, and then only for the craft listed. DOL has implemented helper regulations to define when that classification may be used. If DOL finds that the use of helpers is prevailing for a trade in the area, the wage determination will show the classification and wage rate. The

Helper classification cannot be used if it does not appear on the wage determination.

FRINGE BENEFITS include: “cash” (addition to wages) payments in lieu of FBs’ and irrevocable contributions (made at least quarterly) to bona fide fringe benefit plans or programs (pension funds, health plans, etc.).

Benefits stated as a % are almost always computed as a % of the hourly wage rate. Example:

Min. wage = $20.00, min. FBs =”4.00 + 3%”. Computation: 3% X 20.00 = .60, + 20.00 + 4.00 = $24.60.

Benefits contained in WD footnotes are listed within the ‘block’ covering that particular craft, and apply only to classifications listed in the same block.

Apprentices receive full fringe benefits unless the approved apprenticeship program specifically states otherwise.

OVERTIME COMPENSATION is required for all hours worked over 40 per week. No overtime premium is required for night, weekend, or holiday work. The overtime rate is 1 1/2 times the basic wage rate. Example: WD wage = $18.00. OT rate is $27.00 (1 1/2 X $18.00). The same FBs, if any, are required for straight time and overtime hours (no OT premium on benefits).

DEDUCTIONS FROM WAGES: To guard against ”kickbacks”, deductions from employees wages are allowed only for certain purposes (if unauthorized deductions reduce employees compensation below DBA requirements). Only federal, state, local income taxes and FICA/Medicare taxes may be unilaterally withheld by the contractor under 29 CFR Part 3.

July 2005 Air Force Labor Advisors Office -- Davis-Bacon Act Contractor’s Guide 8

Additional deductions may be withheld if they are voluntarily authorized in advance and in writing by the individual employee(s) or are part of a court ordered mandate such as a garnishment or a child support order. Such employee authorized deductions often include union dues; employee FB plans (pension, health, vacation, etc.). Advance written employee authorization) is always required for deductions to repay an employer for a company loan, a pay advance, or any deduction listed in the “Other” column of the payroll (unless compensation meets or exceeds minimum rates after the deduction is taken from gross pay, prior to authorized deductions).

CERTIFIED PAYROLL REPORTS

Certified payroll reports are required beginning with the first week that a contractor works on the project and for every week afterward until that firm has completed its work. Number the payroll reports beginning with #1 and clearly mark the last payroll for the project "Final”. “No work performed” certified payrolls may be submitted for any weeks during which no work on the contract/project was performed.

Payroll Formats. The easiest form to use is DOL's WH-347, Payroll Form, but its use is not mandatory. It is acceptable to use another type of payroll format, such as computerized payrolls, as long as it contains all of the information that is required on the WH-347.

Payroll Certifications. The weekly payrolls are called certified because each payroll is signed and contains language certifying that the information is true and correct. The payroll must be signed by the contractor, or subcontractor, or his/her agent who pays or supervises the payment to the laborers or mechanics. The payroll certification language is on the reverse side of the WH-347. Contractors who do not use Department of Labor Form WH 347, or its equivalent, must submit a DD879, Statement of Compliance, with each payroll report.

Payroll Review and Submission. The prime contractor should review each subcontractor's payroll reports for compliance prior to submitting the reports to the contract administrator. The Prime contractor is responsible for the full compliance of all subcontractors on the contract and will be held accountable for any wage restitution that may be found due to any laborer or mechanic that is underpaid and for any liquidated damages that may be assessed for overtime violations. All payroll reports must be submitted to the contract administrator through the prime contractor no later than the seven calendar days after the regular payment date of the payroll week covered. If the contractor or subcontractors fail to submit required records or certified payrolls, the contracting officer may, after written notice to the prime contract, suspend any further contract payments pending correction by the contractor/subcontractors. FAR 52.222-8.

Payroll Retention. Every contractor and subcontractor must keep a complete set of their own payrolls and other basic records for at least 3 years after the project is completed. The prime contractor must keep a complete set of the payrolls for every subcontractor for at least 3 years after completion of the project.

Payroll Inspection. In addition to submitting payrolls to the contract administrator, every contractor and subcontractor must make their own copy of the payrolls available for review or copying by any authorized representative from the contracting agency or from DOL.

http://www.dol.gov/esa/forms/whd/wh347instr.htm http://www.dtic.mil/whs/directives/infomgt/forms/forminfo/forminfopage2153.html http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/52_220.htm#P77_14593

July 2005 Air Force Labor Advisors Office -- Davis-Bacon Act Contractor’s Guide 9

COMPLETING A PAYROLL REPORT:

Project and Contractor/Subcontractor Information. Each payroll must show the contractor or subcontractor's name and address, the project name and number, the certified payroll number, and the week ending date. Indicate the information in the spaces provided.

Employee Information. The first payroll on which each employee appears must contain the employee's name, address and Social Security Account Number (SSAN). Subsequent payrolls may omit the address and SSAN unless that information has changed.

Work Classification. Each employee must be classified in accordance with the wage determination based on the type of work they actually perform.

1) Apprentices or Trainees. The first payroll on which any apprentice or trainee appears must be accompanied by a copy of their registration in an approved program and those portions of the approved program pertaining to allowable ratio of apprentices to journeymen and the wage rate progression.

2) Split Classifications. For employees working in two or more classifications, list the employees once for each classification, distribute the hours of work accordingly, and reflect the rate of pay and gross earnings for each classification. Deductions and net pay may be based upon the total gross amount earned for all classifications.

Hours Worked. The payroll should show ONLY the regular and overtime hours worked on a specific contract or project. Show both the daily and total weekly hours for each employee. If an employee performs work at job sites other than the project for which the payroll is prepared, those "other job" hours should not be reported on the payroll.

Rate of Pay. Show the basic hourly rate of pay for each employee for this project. If the wage determination includes a fringe benefit and you do not participate in approved fringe benefit programs, add the fringe benefit rate to the basic hourly rate of pay. Also list the overtime rate if overtime hours were worked.

Wages Earned. Show the gross amount of wages earned for work performed on this project.

Note: For employees with work hours and earnings on other projects, you may show gross wages for this project over gross earnings for all projects (for example, $425.40/$764.85) and base deductions and net pay on the "all projects" earnings.

Deductions. Show the amounts of any deductions from the gross earnings. "Other" deductions must be specifically identified. Documentation may be required for “other” deductions as discussed above on page 7.

Net Pay. Show the net amount of wages paid.

Statement of Compliance. The Statement of Compliance is the certification. It is located on the reverse side of a standard payroll form (WH-347), on form WH-348 or on form DD 879 (optional use on contracts with military agencies). Complete the identifying information at the top, especially if attaching the Statement of Compliance to an alternate payroll form such as a computer payroll. Also, check 4(a), 4(b) or 4(c) if the wage decision contains a fringe benefit

July 2005 Air Force Labor Advisors Office -- Davis-Bacon Act Contractor’s Guide 10 requirement. Checking 4(a) indicates payment of required fringe benefits is made to approved plans or programs; 4(b) indicates that required fringe benefit amounts have been paid directly to the employees by adding the fringe benefit rate to the basic hourly rate of pay; and 4(c) indicates “other” or “exceptional” handling that needs a more detailed explanation by the contractor. If a portion of the required fringe benefit is paid to programs and the balance directly to the employee, explain those differences in box 4(c).

Signature. Make sure the payroll is signed with an original signature. The payroll must be signed by the contractor or by an authorized agent (a person authorized by a principal in writing to sign the payroll reports). Signature authorization (for persons other than a principal) should be submitted with the first payroll signed by such an agent.

SECTION III: ENFORCEMENT

COMPLIANCE REVIEWS. The contract administrator or other inspector will visit the project site and interview a number of the workers concerning their employment on the project. In addition, the contract administrator will periodically review payrolls and related submissions, comparing the interview information to the payrolls, to ensure that the labor standards requirements have been met. The contract administrator will notify the prime contractor if these reviews find any discrepancies or errors and inform the contractor of what steps must be taken to correct problems.

On-Site Compliance Checks. Every prime contractor and subcontractor must make their employees available during working hours for confidential interview at the job site with the contract administrator, other agency representative or DOL representative. Employees will be asked about the kind of work they perform, their rate of pay, hours of work, and fringe benefits provided (if applicable). Every effort is made to ensure that these interviews cause as little disruption as possible to the on-going work. Proper posting of the DBA poster (WH1321) and the contract wage determination will also be verified at this time.

Project Payroll Reviews. The contract administrator will compare the information on the interview forms to the corresponding payrolls to ensure that the workers are properly listed on the payrolls for the days, work classification and rate of pay. The contract administrator will also review the payroll submissions to make certain: the payrolls are complete and signed;

employees are paid no less than the wage rate for the work classification shown; and that apprentice and trainee certification and other documentation is submitted (where needed); etc.

When deemed necessary, the contractor/subcontractor may be required to submit documentation of bona fide contributions/payments to fringe benefit plans.

TYPICAL PAYROLL ERRORS AND REQUIRED CORRECTIONS:

Inadequate Payroll Information. If the alternate payroll (such as a computer payroll) does not contain all of the information that would be on the optional form WH-347, the employer will be asked to resubmit the payrolls in an acceptable format and to include all required data.

Missing Addresses and Social Security Numbers. If the first payroll on which an employee appears does not contain the employee's address and Social Security Number (SSN), the contractor will be required to furnish the missing information.

July 2005 Air Force Labor Advisors Office -- Davis-Bacon Act Contractor’s Guide 11

Incomplete Payrolls. If the information on the payroll is not complete (for example, if work classifications or rates of pay are missing), the employer will be asked to submit a corrected payroll.

Classifications. If the payrolls show work classifications that do not appear on the wage determination, the contractor will be required to either properly classify the employees in accordance with the wage determination or request an additional classification and wage rate (See Conformance Procedures). If reclassification results in underpayment (the wage rate paid on the payroll is less than the rate required for the new classification), the employer will be required to pay wage restitution to all employees affected. A corrected or supplemental certified payroll must be submitted after such payments.

Wage Rates. If the wage rates on the payroll are less than the wage rates on the wage decision for the work classification reported, the employer will be required to pay wage restitution to all employees affected. Corrected or supplemental certified payroll must be submitted after such payments.

Apprentices and Trainees. If a copy of the employee registration or approved program ratio and wage schedule information is not submitted with the first payroll on which an apprentice or trainee appears, the employer will be asked to submit the missing documentation. If the ratio of apprentices or trainees to journeymen on the payroll is greater than the ratio permitted by the approved program, the employer will be asked to pay wage restitution to all apprentices or trainees deemed “out of ratio”. Also, any apprentice or trainee that is not registered in an approved program must receive the full journeyman wage rate for the classification of work performed.

Overtime. If the employees did not receive at least time and one-half for any overtime hours worked on the project, the following will occur:

1) If the project is subject to CWHSSA overtime requirements, the employer will be asked to pay wage restitution for all overtime hours worked on the project. The employer may also be liable to the government for liquidated damages computed at $10 per day per individual employee paid in violation.

Or,

2) If the project is not subject to CWHSSA, the employer will be notified of the possible FLSA overtime violations. Also, the issue may be referred to the DOL for further review.

Computations. If the payroll computations show frequent errors, the contractor will be required to submit corrected payrolls. Wage restitution will be required if underpayments resulted from the errors.

Deductions. If any "Other" deductions are not identified, or if there are any unusual deductions, the contractor will be asked to identify the deductions, provide employee authorization and/or explain unusual deductions. As with any other underpayments, any unauthorized deductions may require back wage restitution to the affected employees and submission of corrected or supplemental certified payroll.

Fringe Benefits. If the wage determination contains fringe benefits but the payroll does not indicate how fringe benefits were paid [neither 4(a), 4(b) nor 4(c) is marked on the payroll form], the contractor may be asked to submit corrected payrolls and will be required to pay wage

July 2005 Air Force Labor Advisors Office -- Davis-Bacon Act Contractor’s Guide 12 restitution if underpayments occurred. Verification of bona fide payments to any and all fringe benefit plans may be required to confirm that payments have actually been made. However, if the basic hourly rates for the employees are at least as much as the total minimum wage rate on the wage determination (basic hourly rate plus the fringe benefit rate), no correction will be necessary.

Signature. If the payroll Statement of Compliance is either not signed or is missing, the contractor will be asked to submit a signed Statement of Compliance for each payroll affected.

On-Site Interview Comparisons. If the comparison of on-site interviews to the payrolls indicates any discrepancies (for example, the employee does not appear on the payroll for the date of the interview or the classification listed on the payroll is different from the duties observed by the on-site interviewer), the contractor will be asked to explain the discrepancies, make any necessary restitution and submit a corrected payroll report.

RESTITUTION OF WAGES and/or BENEFITS. Where underpayments of wages and/or benefits has occurred, the contractor will be required to pay restitution to the affected employees. Restitution must be paid promptly in the full amounts due, less permissible deductions.

Remember: PRIME AND SUBCONTRACTOR RESPONSIBILITY -- When properly placed in any subcontract, the employing subcontractor is responsible for compliance with the DBA regulations and wage determination(s). In the event of unresolved violations by subcontractors, the prime contractor is responsible and will be held liable for any wage restitution that is due to any worker employed in the construction of the project, including workers employed by subcontractors at any tier.