Department of Labor defends prevailing wage rule for construction site truck drivers

The Department of Labor is trying to revive a regulation that guarantees truck drivers working on federally funded construction sites are paid a prevailing wage under the Davis-Bacon Act.

In a brief recently submitted to the Fifth Circuit Court of Appeals, the Department of Labor defended a new rule that went into effect last year that adds truck drivers as laborers protected under the Davis-Bacon Act. In June, a federal court in Lubbock, Texas, blocked the rule in a lawsuit filed by the Associated General Contractors of America and the Lubbock Chamber of Commerce.

Enacted in 1931, the Davis-Bacon Act is a minimum wage law for construction workers performing work in projects at least partially funded by the federal government. Specifically, “all mechanics and laborers employed directly on the site of the work” must be paid prevailing wages in the relevant locality for the relevant job type as determined by the Department of Labor.

Truck drivers are not explicitly included in the Davis-Bacon Act. In 2016, the Department of Labor issued an enforcement guidance handbook, which clarified that the act applies to truck drivers. However, prevailing wages only apply to on-site time, e.g. loading, unloading and waiting. Time spent off-site, such as driving to and from the site, does not qualify.

An exemption also applies to truck drivers whose time spent on-site is “de minimis.” What is considered de minimis is not clearly defined. Rather, the handbook states it could be “only a few minutes at a time merely to pick up or drop off materials or supplies.”

Through the proper rulemaking process, the Department of Labor made sweeping changes to the Davis-Bacon Act last year. One of those changes included formally codifying the 2016 handbook’s inclusion of truck drivers.

The Associated General Contractors of America sued the department, claiming it overstepped its authority with the truck driver amendment. The association argued that Congress never authorized the agency to include truck drivers in the Davis-Bacon Act. A federal district court agreed and ordered a nationwide injunction enjoining the Department of Labor from implementing the truck driver provision while the lawsuit is pending.

In the district court’s order, Senior District Judge Sam Cummings found that the truck driver provision is neither a clarification nor an update. Rather, “it is a fundamental change to the Act by adding ‘transportation’ as a category of work covered.”

In its appeal, the Department of Labor argues that by nearly every definition of the word, truck drivers are considered “laborers,” who are covered by the Davis-Bacon Act.

As the new rule explicitly explains, the act of driving away from the worksite is exempt.

“The regulation thus does not add ‘transportation’ to the list of activities covered by the statute, as the district court mistakenly concluded,” the Department of Labor stated in its brief. “It instead does almost exactly the opposite, since it excludes from its coverage those activities that drivers undertake to transport materials to and from the work site.”

Judge Cummings also found that the trucking regulation was arbitrary and capricious because there was ambiguity about precisely which activities fall under the regulation’s “de minimis” exception. The Department of Labor argues that there is nothing arbitrary about “a rule that may not provide perfect certainty about its meaning for every conceivable application.”

“If a contractor is uncertain about what precisely qualifies as de minimis onsite activity, the contractor is always free to err on the side of caution and either not take advantage of the de minimis exception at all, or only take advantage of it when the contractor is confident that it applies,” the Department of Labor argues. “But it is hardly arbitrary and capricious for the agency to have given contractors that flexibility.”

Addressing the irreparable harm that the de minimis exemption may cause employers, the Department of Labor pointed out that the provision predates the new rule with the 2016 guidance.

Even if it is arbitrary, the Department of Labor argues that the court threw the baby out with the bathwater by enjoining the entire trucking regulation rather than just the de minimis exception itself.

As of Thursday, Dec. 5, only one amicus brief had been filed. The North America’s Building Trades Unions filed its brief in support of the Department of Labor and the truck driver rule. Among its many arguments, the labor organization pointed out that the Associated General Contractors of America challenged the rule seven months after it was announced and five months after it went into effect, undermining the association’s claim that contractors are being irreparably harmed.

“It is also worth noting that the evidentiary hearing before the district court took place in June 2024 – eight months after the rule went into effect – and not one witness could point to a project on which they were harmed by the truck driver or material supplier provisions,” the union states in its amicus brief. LL