Online: Davis-Bacon Misapplied
Online Only Articles - Online Only 2013
The Political Surveyor - Davis-Bacon Misapplied
by John "JB" Byrd
The surveying community is facing the most serious threat to its professional image in decades. The U.S. Department of Labor—without consultation with the community, public notice, or opportunity for public comment—issued an order on March 22 declaring that members of survey crews are “laborers and mechanics” subject to the controversial Davis-Bacon Act. Since then, I’ve spent considerable time developing and implementing a strategy and engaging in lobbying to affect a reversal of that policy.
The Davis-Bacon Act is a controversial Depression-era law, with a highly racial origin, that requires the payment of the local “prevailing wage” to “laborers and mechanics” on federally funded construction projects. It applies to prime contractors and subcontractors on direct federal contracts, as well as to state and local governments expending funds through a federal grant or loan.
This prevailing rate of wages is above the minimum wage provided in the Fair Labor Standards Act. One of the controversies over implementation of the Davis-Bacon Act is that while it calls for the “prevailing” wage, how those wages are calculated is not reliable, with allegations by many that the Labor Department imposes the “union wage” rather than a real market-based wage. The nonpartisan Government Accountability Office, the watchdog agency of Congress, has long recommended that Davis-Bacon be repealed.
When issuing its new rule in March, the Labor Department reversed more than 50 years of policy. Since 1955, survey crews have been considered largely exempt. Arthur Goldberg, then-secretary of labor under President John F. Kennedy issued an opinion in 1962 stating that members of survey crews were exempt from Davis-Bacon, except to the extent to which they “perform manual work, such as clearing brush and sharpening stakes,” which he said “are not commonplace.”
The March 2013 ruling came at the urging of the International Union of Operating Engineers. Ironically, very few survey crew members belong to a union, and even fewer are members of the Operating Engineers. There has been no legislation, court ruling, comptroller general decision, or other governmental action that changed Secretary Goldberg’s interpretation.
NSPS has strongly objected to the Labor Department classification of members of survey crews as laborers and mechanics, stating it’s “an affront to the surveying profession” and “detrimental to our profession and an inappropriate demotion of valued and skilled employees.”
There are many substantive reasons the Labor Department’s new policy is erroneous. NSPS administers a “Certified Survey Technician” (CST) program for employees of surveying firms, including those who perform field survey functions. The classification of members of survey crews as “laborers and mechanics” is inconsistent with the CST program and the standard in the surveying community.
Moreover, classification as laborers and mechanics is in direct contrast with the treatment of such workers promulgated elsewhere in the Department of Labor, including the Occupational Employment Statistics, the Occupational Outlook Handbook, and the Occupational Information Network. The Office of Personnel Management General Schedule Qualification Standard for GS 817 surveying technicians employed by the federal government also considers such workers at a scale well above “laborers and mechanics.”
Some people might ask why NSPS would oppose higher wages for survey technicians. In testimony before Congress in a hearing held on June 18, Curtis Sumner, LS, executive director of NSPS, said, “There is no evidence that members of survey crews are paid substandard wages and no demonstrated need for including such workers in a ‘prevailing wage’ law, based on Bureau of Labor Statistics data.” That Labor Department data shows the mean annual wage for a surveying technician is $42,680, while the mean annual wage for all occupations in the United States workforce is $45,790, both figures exclusive of fringe benefits. Surveying technicians’ earnings are not substandard, but virtually in the middle range of all United States’ workers. The premise of the Davis-Bacon Act—to prevent construction firms from bidding low to win contracts through substandard wages—is not found in the surveying community.
Sumner also informed Congress that implementation of Davis-Bacon “will be an administrative nightmare for surveying firms, contracting agencies, and the Labor Department. The order itself is vague with regard to which members of survey crews, and which activities, and at what phase in a project the surveying service is being provided. This will result in confusion and costly compliance issues.” He said that a letter the Labor Department sent to the Operating Engineers Union suggests the Davis-Bacon Act applies to “work immediately prior to or during construction which involves laying off distances and angles to locate construction lines and other layout measurements. This includes the setting of stakes, the determination of grades and levels and other work which is performed as an aid to the crafts which are engaged in the actual physical construction of projects … The chainmen and rodmen whose work is largely of a physical nature such as clearing brush, sharpening and setting stakes, handling the rod and tape and other comparable activities are laborers and mechanics…”
The act triggers application to a “laborer and mechanic” when more than 20% of the workweek is in the performance of such services on a covered site. Sumner said, “Survey crews are not like construction workers. A survey crew member may be on a construction site a few hours a day, one day a week, and otherwise on a sporadic and intermittent basis, but rarely an entire 40-hour work week. Some work may be preliminary to construction, post-construction, or not related to construction at all. Documenting what every survey crew member is doing every hour of the work day, determining whether an activity is covered or not covered, construction-related or not, is an expensive, time-consuming and counter-productive burden. The payroll administration required for compliance for a surveying profession dominated by very small businesses is extraordinary.”
He said, “The described activities are outdated and irrelevant to today’s surveying. The Labor Department attempts to distinguish between licensed professional surveyors, party chiefs, and technicians, such as rodmen and chainmen. However, with today’s computerized data collectors, survey crews can commonly consist of one person. That individual is certainly exercising judgment and working in a supervisory capacity. Today’s surveying technicians are performing services that are mental and managerial in nature and are not ‘apprentices, trainees, helpers, and, in the case of contracts subject to the Contract Work Hours and Safety Standards Act.’ Therefore, they do not meet the criteria for a laborer or mechanic.”
In addition to formally writing the secretary of labor asking that the ruling be repealed, NSPS was successful in securing the June 18 congressional hearing at which it testified. The surveyors’ society has led a multipronged strategy to restore classification of survey technicians as an important support cast to the surveying profession. After the hearing, three members of Congress wrote to the Labor Department demanding documents related to the expansion of Davis-Bacon to survey crews. Professional Surveyor Magazine has filed a request for documents under the Freedom of Information Act. A coalition of 13 taxpayer and free market organizations wrote the Secretary of Labor in opposition to the ruling, as did five design and construction organizations.
The issue is not pay, but prestige. NSPS is currently scheduling a meeting with Labor Department officials to press its case for proper classification of valued technicians who support the profession of surveying.
John “JB” Byrd is the government affairs manager for John M. Palatiello & Associates, a public affairs, association management, and consulting firm in Reston, VA. He has more than 10 years of public-policy experience. He is the registered lobbyist for the National Society of Professional Surveyors (NSPS) and the government affairs manager for MAPPS, the national association for private-sector geospatial firms.
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