I have handled numerous prevailing wage cases, both Davis Bacon Act and State laws, and have come to understand that it often is a gray issue whether materials delivery and any concomitant work performed is/is not prevailing wage work. The correct answer, either way, means a great deal to the employers that are involved. A recent case illustrates the parameters of this dilemma. The case is entitled In the Matter of: Disputes concerning Payment of prevailing wage Rates by E.T. Simonds Construction Company and issued from the Administrative Review Board (ARB).
The Company was engaged in a construction project and hired a subcontractor (Basler Excavating) to supply truck drivers to haul waste materials. The Company did not pay prevailing wage; the USDOL audited, found underpayments and the Company took the matter before an Administrative Law Judge who found that because the men spent time driving on the construction worksite, they were entitled to Davis-Bacon prevailing wages. The Company appealed to the Administrative Review Board.
Under DBA principles, the “site of the work” is the actual location where the work is done and may include off-site locations that are dedicated to the project. Time spent at a dedicated facility and travel between that facility and the construction is also DBA work. The USDOL has adopted a so-called “rule of reason” on this issue. If the time spent on the site is de minimis, the prevailing wage need not be paid. The Company challenged this concept asserting it will lead to inconsistent results and difficult to enforce or administer.
The ALJ ruled that the drivers spent more than de minimis time on the worksite, a finding affirmed by the ARB. The Judge found that the drivers went back and forth from the site many times and spent a quarter of their time during the day at the job site. Thus, there was no issue of material fact on this issue; the record amply supported the ALJ’s conclusions.
Furthermore, the ALJ’s decision to grant summary judgment on whether material transportation drivers are covered by the Davis-Bacon Act (DBA) was affirmed. This decision highlights the need to determine whether material drivers are performing “construction work” when they deliver goods or products to a construction site and do not immediately depart the site. In other words, in this case, the ARB found that the main job of the drivers was construction, rather than transportation of materials to the construction site.
There is a fine line here. Those truck drivers who only deliver materials to a job site, drop them off, and leave, are not covered by prevailing wage rates. If the drivers spend a de minimis amount of time on the site, whatever that means, they are not covered. When the drivers become components of the construction work being done at the site and are moving materials around the site so the materials can be worked on and become part of the project, then the drivers are covered by PW rates. Similarly, if the drivers spend a fair amount of time on the project, their hours are also covered. It is drawing that fine line between de minimis and coverage that remains the employer’s decision, and dilemma.