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PREVAILING WAGE ISSUES

 

Under prevailing wage laws, i.e., those that require payment at prevailing wage rates for labor on federal, state, or other governmental projects, there is no choice but to pay at those levels. Some non-governmental projects involve prevailing wage rates as well, such as projects using union employees, or projects in which a contractor has to offer prevailing wage rates in order to attract enough qualified workers to complete the job. Paying prevailing wage to employees in those latter categories is a matter of contract and supply and demand, while paying at prevailing wage rates for governmental contract work is a non-discretionary statutory obligation. Prevailing wage laws generally specify that all work done on the project must be paid at such rates, and that the obligation to pay prevailing wage applies to subcontractors and contractors alike, regardless of whether the contractor specifies such rates in its contracts with subcontractors (contractors should do that). Thus, a company working under a general contractor on a federal building project of some kind can pretty well assume that the prevailing wage laws will apply.

 

Under 40 U.S.C. § 3141(2) of the Davis-Bacon Act, the term "wages" includes the regular hourly rate of pay plus optional fringe benefits paid to the employee. In calculating overtime pay, the cash payment for fringe benefits is excluded from the regular rate (see 29 C.F.R. § 5.32 and the examples in the Davis-Bacon Act compliance handbook at http://www.dol.gov/whd/recovery/pwrb/Tab16DBCompliance.pdf#page=27), and the weighted-average method of computing overtime pay is used (see the same compliance handbook, pages 27-29).

 

Travel time on a government-contract prevailing wage job must be paid at the prevailing wage rate associated with that particular job. Travel time on a job not covered by prevailing wage laws may be by agreement, i.e., either at the regular hourly rate of pay, or at a different rate, in which case the weighted-average method of computing overtime pay would be used for any overtime arising from such work.

 

Employers paying prevailing wage rates are generally required to maintain what are called certified payroll records in order to prove compliance with the prevailing wage laws. While Texas law does not specifically define "certified payroll records", Section 2258.024 of the Government Code provides that contractors must keep records showing that all employees working on public projects have been and are being paid at least the prevailing wage rate for all time worked on the project. Such records are essentially the same as those that would be required under the Davis- Bacon Act, the Service Contract Act, or similar law requiring payment of prevailing wage on public projects. Even though a public works contract might not specifically state that certified payroll records are required, it is a good idea to keep them because the Government Code also gives municipalities the right to inspect a company's records when auditing a contractor for compliance with prevailing wage laws. In addition, the Fair Labor Standards Act requires an employer to keep exact records of all time worked, all wages paid, all wage deductions, and other things - see "Recordkeeping Requirements for Non-Exempt Employees". Regarding certified payroll records themselves, while there is no specific state-mandated form for such purposes, it is likely that the optional certified payroll record form available through the U.S. Department of Labor for Davis-Bacon Act and Service Contract Act compliance purposes would suffice - see this link for DOL Form WH-347: http://www.dol.gov/whd/forms/wh347.pdf. That form contains a link to the instructions for the form. It would be a good idea for any contractor on a public project to check with its public partner on the contract regarding specific recordkeeping requirements for the project. Most cities have contract compliance specialists who can easily help an employer stay up with the rules.

 

The Texas statute, Government Code § 2258.021, only requires payment of the prevailing wage for similar work in the same locality. The next provision, § 2258.022, provides that the prevailing wage is determined by using a survey of wages paid for similar work in the locality, or by using the rate determined by the U.S. Department of Labor to be the prevailing wage under the corresponding federal law, the Davis-Bacon Act. An employer may call the U.S. Department of Labor at 1-866-487-9243 for assistance in obtaining an appropriate prevailing wage decision for that area. TWC has developed a guide for determining the prevailing wage rate for purposes of Skills Development Fund applications - that guide is online at http://www.twc.state.tx.us/svcs/funds/sdf_pwdr_instruct.pdf.

 

None of the statutes contain specific restrictions on wage deductions. It is clear that the prevailing wage laws require only that the wage rates be the same as those prevailing for similar work in a particular locality. There is nothing special about prevailing wage levels that would subject them to different rules for wage deductions than those that apply to non-prevailing wages. In other words, the wages of both employees who are paid at prevailing wage levels and those who are paid at other levels are subject to the same rules on deductions for payroll taxes, wage garnishments, wage attachments, voluntary wage assignments, and other types of deductions. Those rules for wage deductions are found in Part 531 of the U.S. Department of Labor's wage and hour regulations (limitations on deductions from minimum wage), Part 870 (restrictions on wage garnishments), Section 61.018 of the Texas Payday Law, and Texas Workforce Commission Texas Payday Law Rule § 821.28 (40 T.A.C. § 821.28).

 

Thus, even if an employee is paid a prevailing wage, the employer is still entitled to make deductions from the prevailing wages that comply with all of the applicable guidelines in those statutes and regulations. The subject of federal and state wage deduction issues is covered in detail in the article "Texas Payday Law - Basic Issues" in this book - see the following topics in particular: "Deductions from Pay - General", "Deduction Problems under the Texas Payday Law", and "Texas Payday Law Deduction Summary".

 

The DOL's resources on the Service Contract Act and the Davis-Bacon Act are found at http://www.dol.gov/whd/contracts/sca.htm and http://www.dol.gov/whd/contracts/dbra.htm. The Prevailing Wage Resource Book linked from those pages has many parts with helpful explanations and examples for federal contractors - see http://www.dol.gov/whd/recovery/pwrb/toc.htm. The SCA Compliance Principles handbook there (#10) has the specific overtime calculation information on page 21 for SCA-project employees. The same information for employees covered by the Davis-Bacon Act is in the compliance principles handbook for that law (# 16) at http://www.dol.gov/whd/recovery/pwrb/Tab16DBCompliance.pdf#page=27.

 

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