The Davis-Bacon Act and its companion acts require all contractors and subcontractors performing work on federal or District of Columbia construction contracts or federally assisted contracts in excess of $2,000 to pay their laborers and mechanics not less than the “prevailing wage” for corresponding classes of laborers and mechanics employed on similar projects in the area. The “prevailing wage” is the combination of the basic hourly rate and any fringe benefits listed in a Davis-Bacon wage determination.
On a Davis-Bacon project, the default rule is that every worker performing “covered work” must be paid at the rate set forth in the wage determination for the work that they perform. While there are limited exceptions for “trainees” and “apprentices,” the exceptions are very limited and using apprentices on federal projects presents several traps for unwary contractors, which are outlined below.
Special Rules for “Trainees” and “Apprentices”
As an initial matter, the definitions of “trainees” and “apprentices” are narrow and the burden is on the contractor to show that the definition applies to a particular worker.
An “apprentice” is a worker who is either: (a) individually registered as part of a “bona fide apprenticeship program” or (b) a “probationary apprentice” who has been certified by OA or a state apprenticeship agency (as appropriate) to be eligible for probationary employment as an apprentice. DOL Handbook § 15e01(a). DOL guidance provides that “[a]ll apprentices other than probationary apprentices must be individually registered in the approved program” and “an apprentice will perform for the appropriate period of time all levels of work, from the lowest unskilled laborer’s work to the highest skilled or craft work of the finished mechanic, under the supervision of the journeyworker.” DOL Handbook § 15e01(a). A “trainee” is defined as a person registered in a construction occupation under a program which has been approved in advance by the U.S. Department of Labor, Employment and Training Administration, as meeting its standards for on-the-job training programs and which have been so certified by that Administration. DOL Handbook § 15e02. The proper wage rates to be paid to apprentices and trainees are those specified by the particular program in which they are enrolled, expressed as a percentage of the journeyman rate on the wage determination.
In the event employees reported as “apprentices” or “trainees” on a covered project have not been properly registered within the meaning of the DOL regulations and the contract stipulations, or are utilized at the job site in excess of the ratio to journeymen permitted under the approved program, they must be paid the applicable wage rates for laborers and mechanics employed on the project performing in the classification of work they actually performed. This applies regardless of work classifications which may be listed on the submitted payrolls and regardless of their level of skill.
“Pre-Apprentices” are Not Recognized
“Pre-apprentices” (also called “unregistered apprentices”) are not recognized under Davis-Bacon and cannot be paid a lesser wage than what is specified in the wage determination for the work that the pre-apprentice “actually performed”: DOL Handbook § 15e01(e).
(e) Unregistered apprentices
29 CFR 5.5(a)(4)(i) says any employee listed on a payroll at an apprentice wage rate who is not a bona fide registered or probationary apprentice must be paid the wage rate for the classification of work actually performed. But the fact that a worker is listed on the payroll as an apprentice in a particular craft and paid an apprentice wage rate for that craft does not, in itself, mean that person performed only the work of, or used only the tools of, the craft in which the person is an unregistered apprentice, and it does not mean that the worker must be compensated only at the contract rate for that craft classification. Such an employee may actually be performing work as a laborer, and must receive at least the rate applicable for the classification(s) of work actually performed.
As noted above, however, the definition of “apprentice” does include “probationary apprentices.” The definition of “probationary apprentices” is limited to workers who are: (a) in the first 90 days of probationary employment and (b) have been “certified by OA or a state apprenticeship agency (as appropriate) to be eligible for probationary employment as an apprentice.” DOL Handbook § 15e01(a).
“Helpers” May Be Listed on the Wage Determination
“Helpers” is a classification that is recognized in some localities, but the DOL rules make clear that the classification must be listed in the wage determination in order to be utilized by the contractor:
The term helper is defined in 29 CFR 5.2(n)(4). Helpers are permitted on a DBRA contract only if the helper classifications are specified in the applicable wage determination or conformed rates are approved pursuant to 29 CFR 5.5(a)(1)(ii). Helper classifications will be issued or approved only where the helper classification in question constitutes a separate and distinct class of worker whose use is prevailing in the area, and whose scope of duties does not overlap those of another classification (journeyworker or laborer). A helper may not be used as an informal apprentice or trainee, and it is not permissible for helpers to use tools of the trade in assisting a journeyworker. See 65 FR 69674, November 20, 2000. DOL Handbook § 15e05.
As you can see, there are several pitfalls to utilizing apprentices on Davis-Bacon projects. Contractors should be aware of the relevant rules and retain documentation relating to each apprentice. Specifically, a contractor would be wise to maintain a copy of the bona fide apprenticeship program and individual registration documents for each apprentice working on a Davis-Bacon project.
Should you have any questions related to the Davis-Bacon process, please contact the SMACNA Labor Relations Department.
Grant Collins is an MSBA-certified specialist in traditional labor law and employment law at Felhaber Larson. He advises employers on their rights and obligations under collective bargaining agreements and the NLRA and represents employers in unfair labor practice charges. Reach him at firstname.lastname@example.org.