U.S. DEPARTMENT OF LABOR DBA/DBRA COMPLIANCE 

PREVAILING WAGE RESOURCE BOOK 2010 PRINCIPLES

 DBA/DBRA 

COMPLIANCE 

 PRINCIPLES
U.S. DEPARTMENT OF LABOR DBA/DBRA COMPLIANCE 

PREVAILING WAGE RESOURCE BOOK 2010 PRINCIPLES

LABORERS AND MECHANICS 

SITE OF THE WORK 

TRUCK DRIVERS 

APPRENTICES AND TRAINEES 

HELPERS

AREA PRACTICE 

FRINGE BENEFITS 

CWHSSA/OVERTIME PAY
U.S. DEPARTMENT OF LABOR DBA/DBRA COMPLIANCE 

PREVAILING WAGE RESOURCE BOOK 2010 PRINCIPLES

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DBA/DBRA 

Coverage and Compliance Principles

 This section provides basic information regarding major aspects of compliance with the 

Davis-Bacon labor standards and CWHSSA overtime requirements. It addresses 

frequently asked questions such as: 

◊ Who are the “laborers and mechanics” to whom the Davis-Bacon prevailing 

wage requirements apply? 

◊ What is the “site of the work” where workers are covered by Davis-Bacon 

wage requirements? 

◊ How are truck drivers affected by the “site of the work” limit on DavisBacon coverage? 

◊ When can apprentices or trainees work on a Davis-Bacon project at less 

than the wages listed in the Davis-Bacon wage determination? 

◊ Can helper classifications be used on Davis-Bacon covered projects? 

◊ What happens if there is a dispute over how a worker should be classified? 

◊ Does the Davis-Bacon prevailing wage include fringe benefits? 

◊ How can a contractor’s fringe benefits costs count towards Davis-Bacon 

prevailing wages? 

◊ How do you compute overtime pay if CWHSSA applies to a Davis-Bacon 

job? 
U.S. DEPARTMENT OF LABOR DBA/DBRA COMPLIANCE 

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LABORERS AND MECHANICS 

Definition 29 C.F.R. § 5.2(m). 

◊ The term “laborer and mechanic” includes those workers whose duties are 

manual or physical in nature (including those workers who use tools or who are 

performing the work of a trade), as distinguished from mental or managerial 

duties. 

 The term includes: 

 ◊◊ Apprentices 

 ◊◊ Trainees 

 ◊◊ Helpers 

 For overtime coverage under CWHSSA, also: 

 ◊◊ Guards and watchmen 

 Note: Although guards and watchmen are not considered laborers or 

mechanics under DBA/DBRA, they are covered by CWHSSA by 

virtue of its express statutory language. 

◊ The term laborer or mechanic does not include workers whose duties are 

primarily administrative, executive, or clerical, rather than manual. 

◊ Categories of workers considered not to be laborers or mechanics when, in the 

course of their duties, they perform no manual or physical work on the 

construction project are: 

 ◊◊ Architects and engineers 

 ◊◊ Timekeepers 

 ◊◊ Inspectors 

Coverage of laborers and mechanics

◊ The DBA requires the payment of the applicable prevailing wage rates to all 

laborers and mechanics “regardless of any contractual relationship which may be 

alleged to exist.” 
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◊ Non-exempt working foremen who devote more than 20 percent of their time 

during a workweek to mechanic or laborer duties, and who do not meet the 

exemption criteria of 29 C.F.R. Part 541, are laborers and mechanics for the time 

so spent. The working foreman is due the rate listed in the contract wage 

determination for the hours spent as a laborer or mechanic. 

◊ Persons employed in a bona fide executive, administrative, or professional 

capacity as defined in 29 C.F.R. Part 541 are not deemed to be laborers or 

mechanics. 

◊ In considering whether a business owner is an exempt, see 29 C.F.R. Part 541, 

Subparts B and H, along with 29 C.F.R. § 5.2(m). 
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SITE OF THE WORK 

Definition 29 C.F.R. § 5.2(l).

◊ 5.2(l)(1) – “Site of the work” is the physical place or places where the building or 

work called for in the contract will remain, and any other site where a significant 

portion of the building or work is constructed, provided that such site is 

established specifically for the performance of the contract or project. 

 For example: 

 ◊◊ If a small office building is being erected, the “site of work” will normally 

include no more than the building itself and its grounds. 

 ◊◊ In the case of larger contracts, such as for airports, highways, or dams, the 

“site of work” is necessarily more extensive and may include the whole 

area in which the construction activity will take place. 

 ◊◊ Where a very large segment of the dam is constructed up-river and floated 

downstream to be affixed onto a support structure, the secondary 

construction site would be within the meaning of “site of the work” for 

Davis-Bacon purposes if it was established for and dedicated to the dam 

construction project. 

◊ 5.2(l)(2) - Except as provided in paragraph 5.2(l)(3), batch plants, borrow pits, 

job headquarters, tool yards, etc., are part of the “site”, provided they are 

dedicated exclusively, or nearly so, to the contract or project, and are adjacent or 

virtually adjacent to the site of the work as defined in paragraph 5.2(l)(1). 

◊ 5.2(l)(3) - Not included in the “site of work” are permanent home offices, branch 

plant establishments, fabrication plants, tool yards, etc., of a contractor or 

subcontractor whose location and continuance in operation are determined wholly 

without regard to a particular federal or federally assisted project. 

 Also excluded from the “site of work” are fabrication plants, batch plants, borrow 

pits, job headquarters, tool yards, etc., of a commercial or material supplier which 

are established by a supplier of materials for the project before opening of bids

and not on the site of the work as stated in paragraph 5.2(l)(1), even where such 

operations for a period of time may be dedicated exclusively, or nearly so, to the 

performance of a contract. 

Labor standards applicability regarding of “site of the work”

◊ DBA applies only to those laborers and mechanics employed by a contractor or 

subcontractor on the “site of the work”. 
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◊ In 2000, DOL revised the regulatory definitions of the terms “site of the work” 

and “construction, prosecution, completion, or repair” to clarify the regulatory 

requirements in to reflect three U.S. appellate court decisions concerning the 

statutory limit on DBA coverage to workers employed ‘‘directly upon the site of 

the work,’’ and to address situations that were not contemplated when the earlier 

regulations were promulgated. 

 For a full discussion of the revisions made to the regulatory definition of the “site 

of the work” in 2000, see the final rule published in the Federal Register on 

December 20, 2000, 65 Fed. Reg. 80,268-80,278. (See Building and 

Construction Trades Department, AFL-CIO v. United States Department of 

Labor Wage Appeals Board, 932 F.2d 985 (D.C. Cir 1991) (Midway), Ball, Ball 

and Brosamer v. Reich (D.C. Cir. 1994), and Cavett Company v. U.S. 

Department of Labor 101 F.3d 1111 (6th Cir. 1996). The revised regulations took 

effect on January 19, 2001. The December 20, 2000, final rule is available at: 

http://www.dol.gov/_sec/regs/fedreg/final/2000032436.pdf. 

◊ Contracting agencies should consult the WHD when confronted with “site of 

work” issues. 

◊ CWHSSA has no site of work limitation. An employee performing part of the 

contract work under a construction contract at the job site who then continues 

contract work at a shop or other facility located elsewhere is subject to CWHSSA 

overtime pay for all the hours worked at both locations and travel time between 

them. (Different wage rates might be paid, as the Davis-Bacon prevailing wage 

requirements would apply only to activities performed on “the site of the work”.) 
U.S. DEPARTMENT OF LABOR DBA/DBRA COMPLIANCE 

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TRUCK DRIVERS 

Definition 29 C.F.R. § 5.2(j). 

◊ The terms “construction, prosecution, completion, or repair” mean all types of 

work done on a particular building or work at the site (including work at a facility 

deemed part of the “site of the work”) by laborers and mechanics of a 

construction contractor or construction subcontractor including without 

limitation: 

 ◊◊ Altering, remodeling, installation (where appropriate) on the site of the 

work of items fabricated off-site. 

 ◊◊ Painting and decorating. 

 ◊◊ The manufacturing or furnishing of materials, articles, supplies or 

equipment on the site of the building or work. 

 ◊◊ Transportation between the “site of the work” (within the meaning of 29 

C.F.R. § 5.2(l)) and a facility which is dedicated to the construction of the 

building or work and deemed a part of the “site of the work” (within the 

meaning of 29 C.F.R. § 5.2(l)). 

Coverage of truck drivers

◊ Truck drivers are covered by Davis-Bacon in the following circumstances: 

 ◊◊ Drivers of a contractor or subcontractor for time spent working on the site 

of the work. 

 ◊◊ Drivers of a contractor or subcontractor for time spent loading and/or 

unloading materials and supplies on the site of the work, if such time is not 

de minimis. 

 ◊◊ Truck drivers transporting materials or supplies between a facility that is 

deemed part of the site of the work and the actual construction site. 

 ◊◊ Truck drivers transporting portion(s) of the building or work between a site 

established specifically for the performance of the contract or project where 

a significant portion of such building or work is constructed and the 

physical place(s) where the building or work called for in the contract(s) 

will remain. 
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◊ Truck drivers are not covered in the following instances: 

 ◊◊ Material delivery truck drivers while off “the site of the work”. 

 ◊◊ Drivers of a contractor or subcontractor traveling between a Davis-Bacon 

job and a commercial supply facility while they are off the “site of the 

work.” 

 ◊◊ Truck drivers whose time spent on the site of the work is de minimis, such 

as only a few minutes at a time merely to pick up or drop off materials or 

supplies. 

◊ DOL has an enforcement position with respect to bona fide owner-operators of 

trucks who own and drive their own trucks. Certified payrolls including the 

names of such owner-operators do not need to show the hours worked or rates 

paid, only the notation “owner-operator”. This position does not apply to owneroperators of other equipment such as bulldozers, backhoes, cranes, welding 

machines, etc. 

◊ Overtime pay requirements under CWHSSA apply to truck drivers regardless of 

whether the hours worked on the contract are on or off the site of the work. 

Rulemaking background regarding material delivery truck drivers

◊ Three U.S. appellate court decisions in the 1990’s led DOL to reexamine and 

revise the regulatory definition of “construction, prosecution, completion, or 

repair” as it applies to transportation. In view of three appellate court decisions 

that had concluded that DOL’s application of the related regulatory definitions 

was at odds with the language of the Davis-Bacon Act that limits coverage to 

workers employed “directly upon the site of the work,” revisions to the regulatory 

definitions were issued in 2000 to clarify the regulatory requirements. 

◊ The rulemaking in 2000 addressed the application of Davis-Bacon prevailing 

wage requirements to material delivery truck drivers. 

 ◊◊ The regulatory definition of “construction, ... ” has been changed to 

provide that the off-site transportation of materials supplies, tools, etc., is 

not covered unless such transportation occurs between the construction 

work site and a dedicated facility located “adjacent or virtually adjacent” to 

the work site. 

 ◊◊ Also, as indicated in the rulemaking, as a practical matter, since generally 

the great bulk of the time spent by material delivery truck drivers is off-site 

beyond the scope of Davis-Bacon coverage, while the time spent on-site is 

relatively brief, DOL chooses to use a rule of reason and will not apply the 

Act’s prevailing wage requirements with respect to the amount of time 
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spent on-site, unless it is more than “de minimis.” Under this policy, the 

Department does not assert coverage for material delivery truck drivers who 

come onto the site of the work for only a few minutes at a time merely to 

drop off construction materials. 

◊◊ For a full discussion of the regulatory changes, see the final rule 

published in the Federal Register on December 20, 2000, 65 Fed. Reg. 

80,268-80,278. A section focused on “Coverage of Transportation – 

§ 5.2(j)” appears on pages 80,275-6.) The December 20, 2000, final 

rule is available at: 

www.dol.gov/_sec/regs/fedreg/final/2000032436.pdf.
U.S. DEPARTMENT OF LABOR DBA/DBRA COMPLIANCE 

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APPRENTICES AND TRAINEES 

Definition (29 C.F.R. § 5.2(j)). 

◊ Apprentices are those persons employed and individually registered in a bona 

fide apprenticeship program registered with the U.S. Department of Labor, 

Employment and Training Administration (ETA), Office of Apprenticeship (OA), 

or with a state apprenticeship agency recognized by ETA, or persons in the first 

90 days of probationary employment as an apprentice in such an apprenticeship 

program, who is not individually registered in the program, but who has been 

certified by the BAT or a state apprenticeship agency (where appropriate) to be 

eligible for probationary employment as an apprentice. 

◊ The Step-Up program is an apprenticeship program designed to enable lowincome persons, particularly those living in HUD-assisted housing, to enter jobs 

and training in the construction and maintenance fields. This program combines 

formal apprenticeship with preparatory educational and life skills training, to 

encourage participants to gain the education, skills and work experience that they 

need to successfully enter and complete an apprenticeship (or to pursue other 

career training and employment). The program is called Step-Up. Apprentices 

enrolled in step-up programs must meet the same regulatory criteria as all other 

apprentices to receive less than the prevailing wage rate. 

◊ Trainees are persons registered and receiving on-the-job training in a 

construction occupation under a program 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 has been so certified by that 

administration. 

Coverage of apprentices and trainees

◊ Apprentices and trainees are laborers and mechanics but are not listed on a wage 

determination. These classifications are permitted to work on DBA/DBRA 

covered projects only under very controlled circumstances, as follows. 

◊ Apprentices and trainees may be used on DBA/DBRA covered projects and paid 

less than the specified journeyman rate for the work performed if: 

 1. The apprentice or trainee is individually registered in an approved

apprenticeship or training program. 

 ◊◊ The apprenticeship program has to be approved by the ETA/OA or 

by a state apprenticeship agency recognized by the ETA/OA. 
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 ◊◊ The registration requirements do not apply to apprentices and trainees 

performing on highway construction projects funded by the FederalAid Highway Act and enrolled in programs certified by the U.S. 

Department of Transportation. 

 2. The apprentices/trainees must be paid the percentage (%) of the basic 

hourly rate required or fringe benefits specified in the approved 

apprenticeship program and in accordance with their level of 

progression. 

 3. The contractor is limited in the number of apprentices/trainees permitted on 

the DBA/DBRA job site based on the allowable ratio of apprentices/ 

trainees to journeymen specified in the approved program. 

 ◊◊ The ratio is determined on a daily, not weekly basis. 

 ◊◊ The use of “fraction thereof” in computing apprenticeship ratios is not 

permitted unless specified in the approved apprenticeship program. 

 4. Fringe benefits should be paid to apprentices/trainees in accordance with 

the provisions of the apprenticeship/trainee program. If the program is 

silent on the payment of fringes, the apprentices/trainees are to receive the 

full amount of the fringe benefits stipulated on the wage decision unless it is 

determined that a different practice prevails for the applicable 

apprentice/trainee classification. 

 5. When the contractor has exceeded the allowable ratio of apprentices/ 

 trainees, the legal apprentices/trainees are those who first came to work at 

the DBA/DBRA job site. Individuals who are employed in excess of the 

allowable ratio must be paid the full wage determination rate for the 

classification of work performed. 
U.S. DEPARTMENT OF LABOR DBA/DBRA COMPLIANCE 

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HELPERS 

Definition 29 CRR 5.2(n)(4).

◊ A distinct classification of “helper” will be issued in Davis-Bacon wage 

determinations only where all of the following conditions are met: 

 ◊◊ The duties of the helper are clearly defined and distinct from those of any 

other classification on the wage determination; 

 ◊◊ The use of such helpers is an established prevailing practice in the area; and 

 ◊◊ The helper is not employed as a trainee in an informal training program. 

 A “helper” classification will be added to wage determinations pursuant to 

§ 5.5(a)(1)(ii)(A) only where, in addition, the work to be performed by the helper 

is not performed by a classification in the wage determination. 

Note: Helpers may be employed on a DBA/DBRA covered construction project only if 

the helper classification is listed in the Davis-Bacon wage determination in the 

contract or the classification is added with approval by DOL. Helper classes are 

issued or approved only where they are within the scope of the definition stated 

above. 

Background information regarding “helpers”

◊ On November 20, 2000, DOL amended regulatory provisions concerning helpers. 

(See the Federal Register notice published on November 20, 2000, 65 Fed. Reg. 

69,674-69,693.) 

◊ DOL regulations that were in effect during early 1991 and much of 1992 and 

1993, had defined “helpers” as semi-skilled workers who worked under the 

direction of and assisted journeymen who, under the journeymen’s supervision 

and direction, could perform a variety of duties including those requiring them to 

use the tools of the trade, and whose duties could vary according to area practice. 

Effective on October 21, 1993, the regulations implementing that definition of 

helpers were formally suspended. (See the Federal Register notices published on 

November 5, 1993 and December 30, 1996.) 

◊ The regulatory changes issued on November 20, 2000, amended the regulations 

replaced the suspended definition of “helpers” to with a new regulatory definition 

in 29 C.F.R. § 5.2(n)(4) that incorporate the WHD’s longstanding policy of 

recognizing helper classifications and wage rates only where certain specified 

conditions are met. The revised regulatory definition explicitly states that a 
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“helper” classification will be added to wage determinations by the conformance 

process, pursuant to the contract clause at 29 C.F.R. § Sec. 5.5(a)(1)(ii)(A), only 

where the work to be performed by the helper is not performed by a classification 

in the wage determination. 

◊ In issuing the final rule published on November 20, 2000, the Department pointed 

out that: 

 ◊◊ It is not intended that a helper classification never be issued on a DavisBacon wage determination simply because some workers in another 

classification occasionally perform the work in question, 

 ◊◊ The Department intends to issue helper classifications where the duties in 

question are not routinely performed by another classification on the wage 

determination and it is the prevailing practice in the area for helpers/tenders 

to perform the work in question, provided the other criteria of the regulation 

are met. 
U.S. DEPARTMENT OF LABOR DBA/DBRA COMPLIANCE 

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AREA PRACTICE

To determine the proper classification for work performed on a Davis-Bacon covered 

project, it may be necessary to examine local area practice. 

◊ There are no nationwide standard classification definitions under the DBA. (This 

differs from the SCA, as SCA classifications are defined in the SCA Directory of 

Classifications.) 

 Note: The Dictionary of Occupational Titles, published by the Department’s 

Employment and Training Administration, cannot be relied on for making 

Davis-Bacon determinations regarding proper employee classification. 

◊ The Wage Appeals Board ruled in Fry Brothers Corp. (WAB Case No. 76-6, 6/14/77)

that the proper classification of work performed by laborers and mechanics is that 

classification used by firms whose wage rates were found to be prevailing in the 

area and incorporated in the applicable Davis-Bacon wage determination. 

◊ Questions as to the proper classification for the work performed by a laborer or 

mechanic are resolved in accordance with prevailing local area practice. An 

“area practice survey” may be conducted by the WHD or by the contracting 

agency to determine proper classification of workers. 

For advice regarding proper classification of workers and for guidance on the need to 

conduct an area practice survey to determine proper classification of laborers and mechanics 

on DBRA covered projects, consultation with the WHD Regional Wage Specialist is 

appropriate. (See http://www.dol.gov/whd/programs/dbra/regions.htm.) 

Basic Principles for Conducting Surveys to Determine 

Prevailing Local Area Practice 

◊ In accord with Fry Brothers Corp., information to be considered in the area 

practice survey is from firms whose wage rates were found to be prevailing in the 

area and incorporated in the applicable wage determination. 

 ◊◊ If, in the applicable wage determination, the rates listed for all the 

classifications that may perform the work in question are non-union rates, 

the dispute will be resolved by examining the practice(s) of non-union 

contractors in classifying workers who have been performing the duties in 

question in the area. 

 ◊◊ If, in the applicable wage determination, the rates listed for all the 

classifications that may perform the work in question are union rates, the 
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dispute will be resolved by examining the practice(s) of union contractors in 

classifying workers who have been performing the duties in question in the 

area. 

 ◊◊ If a combination of union and non-union rates are listed in the wage 

determination for the classifications that may have performed the work in 

the area, the dispute will be resolved based on the combined information 

from: 

 ◊◊◊ union contractors for the classification(s) for which union 

 rate(s) are listed, 

and 

 ◊◊◊ non-union contractors for the classification(s) for which 

non-union rate(s) are listed. 

◊ Proper classification of the laborers or mechanics performing the work in 

question will be resolved by examining the classification practice(s) of 

contractors who performed the work in question on: 

 ◊◊ similar construction projects (building construction, residential 

construction, highway construction, heavy construction), 

 ◊◊ in progress in the same area (normally the same county), 

 ◊◊ during the year preceding the wage determination lock-in date for the 

contract in question (as discussed below; see 29 C.F.R. § 1.6(c)). 

 ◊◊◊ In the case of contracts entered into pursuant to competitive 

bidding procedures (as contrasted with contracting by 

negotiation), the year prior to bid opening; 

 ◊◊◊ The year prior to contract award in the case of contracts entered 

into pursuant to contracting by negotiation (such as contracts 

arrived at through requests for proposals (RFPs) or similar 

contracting methods; 

 ◊◊◊ In the case of projects assisted under the National Housing Act, 

the year prior to beginning of construction or the date the 

mortgage was initially endorsed, whichever occurred first; or, 

 ◊◊◊ In the case of projects to receive housing assistance payments 

under section 8 of the U.S. Housing Act of 1937, the year prior 

to beginning of construction or the date the agreement to enter a 

housing assistance payments contract was executed, whichever 

was first. 
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◊ The extent of the information required for making area practice determinations 

will depend on the facts in each case. For example: 

 ◊◊ If, in gathering preliminary data, all of the parties agree as to the proper 

classification, the area practice is thus established (i.e., a “limited” area 

practice survey). 

 ◊◊ However, if all parties do not agree (i.e., jurisdictional dispute between two 

unions, or management does not agree with the union, or where non-union 

rate(s) in the wage determination may apply and the practice among nonunion contractors in the area varies), it will be necessary to determine by a 

“full” area practice survey which classification actually performed the work 

in question. 

Preliminary Steps for Conducting Surveys to Determine 

Prevailing Local Area Practice

 1. Develop a clear description of the specific work for which a determination on 

proper classification is needed. (Examples: tying reinforcing rods for highway 

construction on a bridge, installation of process piping in a treatment plant, 

installing the metal roof on a building.) 

 2. Note the local area (generally the county) where the area practice issue is to be 

resolved, and the type of construction (building, residential, highway, or heavy) 

on which the work in question is to be performed. 

 3. Identify the area practice survey timeframe. (What is relevant is contractors’ 

classification practices prior to award (or other applicable lock-in date) for the 

project on which the question of proper classification is to be resolved.) 

 4. Determine what classifications listed in the applicable contract wage 

determination (same county and type of construction) might perform the work 

duties in question. 

 5. Examine the “identifiers” for each such classification and determine whether the 

rate for each reflects a union negotiated or non-union wage rate. 

 ◊ Non-union rates in a Davis-Bacon wage determination are normally 

listed in a wage rate block that has an “SU” identifier, and appear in 

alphabetical order in the list of classifications in the wage 

determination. See the “Wage Determinations” section of this 

Resource Book for further information. 

 ◊ Union rates are listed under identifiers that refer to the union whose 

rates are reflected in a given wage rate block in the Davis-Bacon wage 
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determination. A list of identifiers used to designate various craft 

unions appears in the “Wage Determinations” section of this book; 

usually the local union number follows that designation. 

How to conduct a limited area practice survey to determine 

the proper classification of work

If the applicable wage determination reflects union rates for the all classifications 

involved:

 6. Contact the unions that may have jurisdiction over the work in question to 

determine whether the union workers performed the work on similar projects in 

the county in the year prior to the wage determination lock-in date (contract 

award date, or other date, as described above) for the project at issue. 

 ◊ Note the following criteria for usable data:

 a. Similar projects (same type of construction). 

 b. In the same county as the project in question. 

 c. Usable time frame is one year prior to the wage 

determination lock-in date for the contract in question, as 

established by 29 CFR 1.6(c). 

 If union contractors performed the work, each union should be asked how the 

individuals who performed the work in question were classified. 

 If no union workers performed any of the work in question in the county during 

the survey timeframe, Wage and Hour should be contacted for further guidance. 

 7. The information provided by the unions should be confirmed with collective 

bargaining representatives of management, i.e., the contractor representatives. 

 ◊ These would include contractors' associations such as: 

 Local chapters of the Associated General Contractors of 

America (AGC) 

 The National Electrical Contractors Association (NECA) 

 Local contractor associations that bargain with the unions 

 (If, in response to the limited area practice survey, specific contractors who may 

have performed the work in question are identified, they may be contacted to 

confirm whether they have been performing the work in question in the area.) 
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If all parties agree as to the proper classification for the work in question, the area 

practice is established. 

 If a contracting agency encounters a situation where two unions are engaged in a 

jurisdictional dispute over a specific type of work and both have performed the work in 

question during the applicable time period, the contracting officer should contact Wage 

and Hour for further guidance. 

If the applicable wage determination reflects non-union rates for all the classifications 

involved: 

 6. Contact open shop contractors (many are members of the Associated Builders 

and Contractors of America (ABC)) and ask whether they performed the work in 

question on similar projects underway in the county during the survey timeframe. 

 ◊ If so, these contractors should be asked how the employees who 

performed this work were classified. 

 ◊ If all contractors agree, or if a clear majority of the contractors agree, 

the area practice is established. 

 ◊ If no open shop contractor performed the work at issue in the county 

during the survey timeframe, contact Wage and Hour for further 

guidance. 

If the applicable wage determination reflects a mix of union and non-union rates for the 

classifications involved:

 6. Contact the unions, and contact union and open shop contractors (and/or their 

associations) to determine who performed the work at issue on similar projects 

during the survey timeframe. 

 ◊ If all parties agree, or if a clear majority of the parties agree on the 

classification, the area practice is established. 

 ◊ Wage and Hour should be contacted if no work of the type at issue 

was performed in the county during the applicable time frame 

discussed above. 
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For any type of wage determination (whether based on union rates, non-union rates, or 

a mixed schedule): 

◊ If the parties contacted in the limited area practice survey do not agree (i.e., 

jurisdictional dispute between the unions, management does not agree with 

union, or disagreement between the open shop contractors), or if there is no 

clear majority in agreement, then it is necessary to conduct a full area 

practice survey. When a full area practice survey is needed, the contracting 

agency should contact the Wage and Hour Regional Wage Specialist for 

assistance, guidance and coordination in the conduct of the survey. 

How to conduct a full area practice survey to determine 

 the proper classification of work

 6. Identify similar projects in the same geographical area as the project under 

investigation (usually the county) which were in progress during the period one 

year prior to the wage determination lock-in date of the contract involved in the 

dispute/investigation. 

 ◊ If no similar projects were built in the area during that time frame, 

contact Wage and Hour for advice in expanding the survey's 

geographic scope and/or its time frame. 

 7. Identify firms that performed the work in question on these projects and 

determine those from which data should be collected – according to whether the 

relevant classifications in question in the wage determination are either non-union 

rates, union rates, or both. (For example, only non-union wage rates in the wage 

determination are involved, information from union contractors is not relevant; if 

only union rates are involved, information from open shop contractors is not 

relevant.) 

 8. For each project, obtain data from the week in which the greatest number of 

employees performed the work in question, and record how many performed such 

work on each project and how such employees were classified and paid. 

 9. Compile all relevant information received and total the number of employees 

who performed the work in question in each classification reported. 

 ◊ The classification which has the clear majority of employees 

performing the work in question is the proper classification.

 ◊ If the data does not show that at least 60% of the workers who 

performed the duties in question were classified in the same 

classification, contact Wage and Hour for further guidance. 
U.S. DEPARTMENT OF LABOR DBA/DBRA COMPLIANCE 

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FRINGE BENEFITS 

Definition 29 C.F.R. § 5.2(p). 

◊ Under the Davis-Bacon Act, the terms “wages,” “scale of wages,” “wage rates,” and 

"prevailing wages" include: 

◊◊ The basic hourly rate of pay, 

◊◊ Any contribution irrevocably made by a contractor or subcontractor to a trustee or 

third party pursuant to a bona fide fringe benefit fund, plan or program, and 

◊◊ The rate of costs to the contractor or subcontractor which may be reasonably 

anticipated in providing bona fide fringe benefits pursuant to an enforceable 

commitment to carry out a financially responsible plan or program, which was 

communicated to the employees in writing. 

◊ The statutory language of the Davis Bacon Act regarding fringe benefits is found at 40 

U.S.C. § 3141, and is reiterated at 29 C.F.R. § 5.23.

In practice

◊ The Davis-Bacon “prevailing wage” is made up of two interchangeable components – a 

basic hourly rate and fringe benefits that have been found prevailing in an area and 

published in a Davis-Bacon wage determination. Along with the basic hourly rate 

listed on the wage determination, a fringe benefit will be listed for any classification for 

which fringe benefits were found prevailing. The total, including any fringe benefits 

listed, comprises the Davis-Bacon “prevailing wage” requirement. 

◊◊ This obligation may be met by any combination of cash wages and creditable 

“bona fide” fringe benefits provided by the employer: 

 ◊◊◊ The total, including any fringe benefits listed for the classification, may be 

paid entirely as cash wages; 

 ◊◊◊ Payments made or costs incurred by the contractor for “bona fide” fringe 

benefits may be creditable towards fulfilling the requirement; or 

 ◊◊◊ A combination of cash wages paid and “bona fide” fringe benefits may be 

used together to meet the total required prevailing wage. 

◊◊ Fringe benefits for DBRA must be paid for all hours worked – both straight time 

and overtime hours. 
U.S. DEPARTMENT OF LABOR DBA/DBRA COMPLIANCE 

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◊◊ Under DBRA, each classification stands alone and each laborer and mechanic is 

due the full prevailing wage, including fringe benefits, if listed for the 

classification, for all hours worked. 

 Example:

 A Davis-Bacon wage determination requires: 

 Basic hourly rate $10.00 

 Fringe benefit 1.00

 Total prevailing rate $11.00 

 The contractor can comply by paying: 

 1. $11.00 in cash wages; 

 2. $10.00 plus $1.00 in pension contributions or other “bona fide” fringe 

benefits; or 

 3. $9.00 plus $2.00 in pension contributions or any combination of 

“bona fide” fringe benefits. (In this case, to compute the minimum 

overtime rate under CWHSSA, half the basic rate listed, i.e. $5.00 

must be added to the full $11,00 straight time “prevailing wage.” 

Thus, under CWHSSA, the overtime rate would be $16.) 

 Note: Under DBA/DBRA monetary wages paid in excess of the basic 

hourly rate may be used as an offset or credit to satisfy fringe 

benefit obligations, and vice versa. 

Application to all hours worked

◊ Under Davis-Bacon, fringe benefits must be paid for all hours worked, including 

overtime hours. However, the fringe benefit amounts listed in the applicable wage 

determination may be excluded from the half-time premium due as overtime 

compensation. 

For example: 

 An employee worked 44 hours as an electrician. The wage determination rate 

was $12.00 (basic hourly rate) plus $2.50 in fringe benefits. The electrician 

would be due: 

 44 hours x $14.50 = $638.00 - (straight time pay) 

 4 hours x 1⁄2 of $12.00 = 24.00 - (overtime pay) 

 $662.00 

Crediting fringe benefit contributions to meet DBA/DBRA requirements
U.S. DEPARTMENT OF LABOR DBA/DBRA COMPLIANCE 

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◊ The Davis-Bacon Act (and 29 C.F.R. § 5.23), list fringe benefits to be considered. 

Examples: 

 Life insurance 

 Health insurance 

 Pension 

 Vacation 

 Holidays 

 Sick leave 

◊ The use of a truck is not a fringe benefit; a Thanksgiving turkey or Christmas bonus is 

not a fringe benefit. (See Cody-Zeigler, Inc., WAB Case No. 89-19, April 30. 1991.) 

◊ No credit may be taken for any benefit required by federal, state or local law, such as: 

 Workers compensation 

 Unemployment compensation 

 Social security contributions 

Funded fringe benefit plans

◊ The contractor’s fringe benefit contributions made irrevocably to a trustee or 

third party pursuant to a fund, plan or program, can be credited toward meeting 

the prevailing wage requirement, without prior DOL approval. For example: 

 ◊◊ Contractor pays for health insurance monthly premiums. 

 ◊◊ Contractor makes quarterly contributions to retirement plan trust. 

◊ The amount of contributions for fringe benefits must be paid irrevocably to the 

trustee or third party. 

◊ Contributions to fringe benefit plans must be made regularly, not less often than 

quarterly. (This requirement is specified in the standard Davis-Bacon contract 

clauses at 29 C.F.R. § 5.5(a)(1)(i).) 
U.S. DEPARTMENT OF LABOR DBA/DBRA COMPLIANCE 

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◊◊ Annual contributions into a plan do not meet this requirement. While profit 

sharing plans are bona fide within the meaning of the Act, profits are not 

determined until the end of the year. Therefore, the DOL requires contractors to 

escrow money at least quarterly on the basis of what the profit is expected to be. 

◊ The contractor must make payments or incur costs in the amount specified by the 

applicable wage decision with respect to each individual laborer or mechanic. 

Thus, the amount contributed for each employee must be determined separately, and 

credit taken accordingly towards the prevailing wage requirement for each individual. 

(It is not permissible to take credit based on the average premium paid or average 

contribution made per employee.) 

◊ Credit may not be taken for fringe benefit contributions made on behalf of employees 

who are not eligible to participate in the plan (e.g., those excluded due to age or parttime employment). 

◊◊ Some plans provide that contributions and allocations under the plan will only be 

made on behalf of participants who are employed on the last day of the plan year. 

No credit is permitted for such participants for whom no contribution is made or 

for contributions made for employees whose accounts receive no allocation solely 

because they are not employed on the last day of the plan year. 

◊◊ On the other hand, it is not required that all employees participating in a fringe 

benefit plan be entitled to receive benefits from the plan at all times. For 

example, an employee who is eligible to participate in an insurance plan may be 

prohibited from receiving benefits from the plan during a 30-day waiting period. 

Contributions made on behalf of these employees would be creditable against the 

contractor's fringe benefit obligations. 

◊ A pension plan that meets the Employment Retirement Income Security Act (ERISA) 

requirements may be considered “bona fide” for DBA/DBRA purposes. 

◊ Some pension plans contain “vesting” requirements. Where an employer contributes to 

the plan, employees may be required to complete a certain length of service before they 

have a nonforfeitable right to benefits based on the employer’s contributions to the 

plan. Thus, an employee who leaves employment before completing the specified 

length of service may forfeit all or part of the accrued benefit. 

◊◊ Such forfeitures are permitted, provided the plan is a bona fide plan that meets 

applicable requirements under ERISA, including minimum vesting requirements. 

◊◊ Forfeited Davis-Bacon contributions may not revert to the employer, but should 

be distributed among the remaining plan participants. 
U.S. DEPARTMENT OF LABOR DBA/DBRA COMPLIANCE 

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Unfunded plans

◊ A fringe benefit plan or program under which the cost a contractor may reasonably 

anticipate in providing benefits that will be paid from the general assets of the 

contractor (rather than funded by payments to a trustee or third party) is generally 

referred to as an unfunded plan. These generally include: 

 ◊◊ Holiday plans 

 ◊◊ Vacation plans 

 ◊◊ Sick pay plans 

◊ No type of fringe benefit is eligible for consideration as an unfunded plan unless it 

meets the following criteria: 

 1. It can be reasonably anticipated to provide benefits described in the DavisBacon Act; 

 2. It represents a commitment that can be legally enforced; 

 3. It is carried out under a financially responsible plan or program; and 

 4. The plan or program has been communicated in writing to the laborers and 

mechanics affected. 

◊ To insure that such plans are not used to avoid compliance with the Act, the DOL 

directs the contractor to set aside, in an account, no less often than quarterly, sufficient 

assets to meet the future obligation of the plan. 

Annualization:

◊ Davis-Bacon credit for contributions made to fringe benefit plans are allowed based on 

the effective annual rate of contributions for all hours worked during the year by an 

employee. 

◊ Examples: 

 ◊◊ For a defined benefit pension plan, or for a defined contribution pension 

plan which does not provide for immediate or essentially immediate 

vesting, if a contractor wishes to receive $2.00 per hour credit for a pension 

contribution, the contractor must contribute at this same rate for all hours 

worked during the year. If this is not done, the credit for Davis-Bacon 

purposes would have to be revised accordingly. 

 ◊◊ If the firm’s contribution for the pension benefit was computed to be $2,000 

a year for a particular employee, the employee worked 1,500 hours of the 
U.S. DEPARTMENT OF LABOR DBA/DBRA COMPLIANCE 

PREVAILING WAGE RESOURCE BOOK 2010 PRINCIPLES

24

year on a Davis-Bacon covered project and 500 hours of the year on other 

jobs not covered by the Davis-Bacon provisions, only $1,500 or $1.00 per 

hour would be creditable towards meeting the firm’s obligation to pay the 

prevailing wage on the Davis-Bacon project. (Annual contribution – 

$2,000, divided by total hours worked – 1,500+500 = 2000; i.e. 

$2,000/2000hours = $1.00 per hour.) 

◊ For contributions made to defined contribution pension plans which provide for 

immediate participation and immediate or essentially immediate vesting schedules

(100% vesting after an employee works 500 or fewer hours), and certain approved 

supplemental unemployment benefit plans, a contractor may take Davis-Bacon credit 

at the hourly rate specified by the plan. Under such plans, contributions are 

irrevocably made by the contractor, most, if not all, of the workers will become fully 

vested in the plan, and the higher contributions made during Davis-Bacon work result 

in an increase in the value of the individual employee’s account. The amount of 

contributions to such plans should be in conformance with any limitations imposed by 

the Internal Revenue Code. 

◊ Example: An employee works as an electrician where the wage determination rate is 

$12.00 (basic hourly rate) plus $2.50 in fringe benefits. 

 ◊◊ Where the employer provides the electrician with medical insurance in the 

amount of $200 per month ($2,400 per year), the employer would divide 

the total annual cost of the benefit by 2,080 hours (40 hours x 52 weeks) to 

arrive at the allowable fringe benefit credit. 

 ($200 x 12 months) divided by 2080 hours = $1.15 per hour. 

 ◊◊ If the employee in this example receives no other “bona fide” fringe 

benefits, then for each hour worked on a covered contract the individual is 

due $12.00 (basic hourly rate) plus $1.35 paid as cash (the difference 

between the $2.50 per hour fringe benefit required under the applicable 

wage determination and the credit allowed for the provision of medical 

insurance.) Thus, 

Basic hourly rate $12.00 

Medical insurance benefit 1.15 

Additional cash due 1.35

Total due per hour $14.50 ($12.00+$2.50) 
U.S. DEPARTMENT OF LABOR DBA/DBRA COMPLIANCE 

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CWHSSA/OVERTIME PAY 

◊ CWHSSA applies to laborers, mechanics, guards and watchmen for the time 

spent on covered contract work only. 

 ◊◊ Total up all time each employee spent working on covered 

contracts – off-site as well as on site on DBRA projects; 

 ◊◊ Exclude all commercial, non-government work. 

◊ CWHSSA requires the payment of time and one-half the basic rate of pay for all 

hours worked in excess of 40 hours in a week. (The daily overtime requirement 

under CWHSSA was repealed in 1986.) 

◊ The basic rate of pay under CWHSSA is the straight time hourly rate and can not 

be less than the basic hourly rate required in an applicable wage determination. 

Under DBRA, amounts paid to fulfill the fringe benefit portion of the prevailing 

wages listed in the wage determination – both contributions to bona fide benefit 

plans and cash payments made to meet wage determination fringe benefits 

requirements – are excluded in computing overtime obligations under CWHSSA. 

◊ If in a single workweek an employee works in more than one classification for 

which different non-overtime rates of pay have been established, the overtime 

pay may be computed based on the weekly average rate (or “regular rate”) – the 

total straight time pay for work (at all such rates) during the week, divided by the 

total number of hours worked at all jobs worked in the workweek. (An employee 

who performs work in two or more classifications for which different straight 

time hourly rates are established may agree in advance of performing the work, to 

be paid during the overtime hours at a rate not less than one and one-half times 

the non-overtime rate established for the type of work he performs during such 

overtime hours.) 29 C.F.R. § 778.6, 778.115, and 778.415-419. 

◊ CWHSSA does not have a site of work limitation on coverage. All hours worked 

on covered contracts (even at a fabrication shop away from the site) are combined 

for determining CWHSSA compliance. (For example: if an employee starts the 

day performing covered work at the fabrication shop and then travels to the work 

site, the time at the fabrication shop and the travel time between the fabrication 

shop and the work site is hours worked covered by CWHSSA.) 

◊ The following examples reflect the correct computations under DBRA and 

CWHSSA for an employee who worked 44 hours on a covered contract as an 

electrician, where the wage determination rate for an electrician is $12.00 (basic 

hourly rate) plus $2.50 in fringe benefits. 

 ◊◊ If the employer paid $12.00 in cash wages and $2.50 in fringe benefits, the 

electrician would receive: 
U.S. DEPARTMENT OF LABOR DBA/DBRA COMPLIANCE 

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 44 hours x $12.00 = $528.00 for cash wages 

 44 hours x $ 2.50 = $110.00 in fringe benefits 

 4 hours x 1⁄2 x $12.00 = $ 24.00 for CWHSSA earnings 

 $662.00 

 ◊◊ If the employer paid $10.00 in cash wages and $4.50 in fringe benefits: 

 44 hours x $10.00 = $440.00 in cash wages 

 44 hours x $ 4.50 = $198.00 in fringe benefits 

 4 hours x 1⁄2 x $12.00 = $ 24.00 in CWHSSA earnings 

 $662.00 

 ◊◊ If the employer paid $14.00 in cash wages and $0.50 in fringe benefits: 

 44 hours x $14.00 = $616.00 in cash wages 

 44 hours x $ 0.50 = $ 22.00 in fringe benefits 

 4 hours x 1⁄2 x $12.00 = $ 24.00 in CWHSSA earnings 

 $662.00 

◊ The following examples provide two methods for the computation of overtime

premium pay required under CWHSSA and/or FLSA for an employee who 

worked in different job classifications and at different rates of pay in the same 

work week. 

 An employee is hired to perform work on a covered construction contract in 

two job classifications: painter and electrician. The wage determination 

rate for an electrician is $12.00 (basic hourly rate) plus $2.50 in fringe 

benefits. The wage determination rate for a painter is $10.00 (basic hourly 

rate) plus $3.00 in fringe benefits. The payroll shows that the worker 

performed painting and electrical duties as follows: 

 S M T W T F S 

 Painter hours 10 10 10 

 Electrician hours 10 8 

 Method 1: Computation of the overtime premium based on the weekly average 

“regular rate” for the work week. 

 Step 1: Determine the straight time wages due – excluding fringe benefits 

 30 hours at the painter’s rate of $10.00 = $300.00 

 18 hours at the electrician’s rate of $12.00 = 216.00

 Total straight time wages = $516.00 
U.S. DEPARTMENT OF LABOR DBA/DBRA COMPLIANCE 

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 Step 2: Calculate the “regular rate” 

 ($516.00 / 48 hours worked)= $10.75 “regular rate” 

 Step 3: Compute the overtime premium due 

 1⁄2($10.75) x 8 overtime hours worked = $43.00 

 Method 2: Computation of the overtime premium based on the “rate in effect” 

when the overtime hours were worked. 

 In this example the eight overtime hours occurred on a Saturday. 

 The overtime premium could be computed as follows: 

 1⁄2($12.00) x 8 = $48 (established rate). 

 Note: In some cases, a question arises over whether a cash payment made to a 

laborer or mechanic is paid in lieu of a fringe benefit contribution or 

whether it is simply part of the individual’s normal straight time wages. 

In the latter situation, the cash payment is not excludable in computing the 

overtime pay obligation. 

Overtime requirements under the Fair Labor Standards Act (FLSA), as amended

◊ On contracts to which CWHSSA does not apply (prime contract $100,000 or 

less) overtime pay requirements may apply under other laws. On contracts to 

which CWHSSA does apply, the overtime pay requirements of other laws may 

also apply. 

◊ Laborers and mechanics performing DBA/DBRA work may be subject to 

overtime compensation provisions of other laws which may apply concurrently to 

them, including the Fair Labor Standards Act. 29 C.F.R. § 778.6. 

◊ As a general standard, Section 7(a) of the Fair Labor Standards Act, as amended, 

provides that an employer shall not employ any employee to work in excess of 40 

hours in a workweek unless such employee receives compensation for his or her 

employment in excess of the hours above specified at a rate not less than one and 

one-half times the regular rate at which her or she is employed. 29 C.F.R. 

§ 778.101. 

◊ Unless specifically exempted from FLSA overtime pay requirements, an 

employee who performs work on both federally funded/federally financed 

projects and commercial work in the same workweek must receive an overtime 

premium for hours worked in excess of 40 in the workweek. 29 C.F.R. § 778. 
U.S. DEPARTMENT OF LABOR DBA/DBRA COMPLIANCE 

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(Note: 29 C.F.R. §§ 5.32 and 778.6 discuss dual application of Davis-Bacon and 

FLSA overtime requirements.) 

◊ CWHSSA requires the payment of an overtime premium only if the laborer or 

mechanic works in excess of 40 hours in a work week on covered contract(s). 

Overtime hours worked, which are not subject to CHWSSA, may be subject to 

FLSA overtime pay. 

◊ Where questions arise concerning overtime pay obligations under the FLSA, 

consultation with the local WHD office is appropriate. The Department of Labor 

(DOL) developed the elaws Advisors to help employees and employers 

understand their rights and responsibilities under numerous Federal employment 

laws. The Fair Labor Standards Act elaws Advisor is available at 

http://www.dol.gov/elaws/flsa.htm. 

State and Local Wage and Hour Laws

◊ Federal laws regarding minimum wages and overtime pay do not preempt the 

requirements of similar State and local laws. These laws set minimum 

requirements and can apply concurrently. Thus, compliance with each applicable 

law is appropriate, in accord with the requirements of each. Where questions 

arise regarding wage and overtime pay requirements under State (or local) law, 

the appropriate State (or local) government agency should be consulted regarding 

compliance with the non-federal requirements.