Federal court blocks prevailing wages rule for truckers on construction gigs
A federal court blocked a new Department of Labor rule expanding the Davis-Bacon Act that would have required a prevailing wage for truck drivers providing work on federal construction projects.
Senior District Judge Sam Cummings of the Northern District of Texas federal court has granted the Associated General Contractors of America’s motion to block several amendments to the Davis-Bacon Act, which requires construction contractors to pay certain employees local prevailing wages. Among the amendments was a provision adding truck drivers to the list of qualified workers.
The court agreed with the contractor association’s argument that the DOL overstepped its authority with the amendment. Specifically, Congress never authorized the agency to include truck drivers in the Davis-Bacon Act.
Davis-Bacon Act
The Associated General Contractors of America’s lawsuit challenges the DOL’s recent final rule updating the Davis-Bacon Act.
Enacted in 1931, the act requires minimum prevailing wages for “mechanics and laborers employed directly on the site of the work” on federal construction projects. The law has remained mostly untouched, with changes to how prevailing wages are calculated made by the Reagan administration.
In August 2023, the DOL published a final rule that made sweeping changes to the Davis-Bacon Act. More than 50 changes to the act were made in the single rulemaking, including adding truck drivers to the list of workers covered.
Previously, only “mechanics and laborers” performing “construction, alteration or repair, including painting and decorating,” were entitled to prevailing wages. The updated rule adds “covered transportation” to that list, which includes truck drivers moving materials or supplies, such as loading, unloading or waiting for materials to be loaded or unloaded.
Under the update, those truckers are entitled to prevailing wages so long as onsite time related to offsite delivery is not “de minimis,” or too trivial. What constitutes a de minimis amount of time is not defined under the final rule.
Changes to Davis-Bacon Act unconstitutional
The Associated General Contractors of America immediately filed a lawsuit challenging a handful of the changes to the Davis-Bacon Act, including the addition of truck drivers to covered workers.
In its amended complaint, the contractor association points out that Congress used precise language when enacting the Davis-Bacon Act. Specifically, the law applies to only “mechanics and laborers.” Adding truck drivers to the law requires an act of Congress, the lawsuit argues, and cannot be unilaterally executed by the DOL.
“The amendment is neither a clarification nor an updating of the act that a president or his agencies can lawfully undertake,” the lawsuit states. “It is a fundamental change to the act by adding ‘transportation’ as a category of work covered by (the Davis-Bacon Act), contrary to the congressional limitations of (the Davis-Bacon Act) to covering only mechanics and laborers employed directly on the site of work.”
Judge Cummings agreed.
In his preliminary injunction order, Cummings found that the contractor association presented sufficient evidence to show it will likely prevail in its lawsuit.
“(The DOL) did not merely interpret or administer the statute that Congress enacted. Instead, they created substantive requirements wholly untethered to the statutory text,” Cummings states in the order. “They accomplished this through and by the means of issuing ambiguous regulations … By engaging in legislative activity from the executive branch, (the DOL) violated Article I, Section I and the separation of powers required therein.”
Regarding threat of irreparable harm, the court pointed to the uncertainty of what is considered de minimis time. Without a clear definition, contractors would have to pay truck drivers prevailing wages and complete payroll records for the entire time the driver is on site to assure compliance. Consequently, this would increase bids and could cost an employer a contract, considering the thin margins in the construction industry.
Cummings ordered a nationwide injunction enjoining the DOL from implementing the truck driver provision in the Davis-Bacon Act while the lawsuit is pending. The injunction also applies to a provision dealing with material suppliers and an “operation of law” provision. All other changes to the act remain intact.
“Our concern remains that the (DOL) is expanding the scope of the rule well beyond what Congress ever intended,” Associated General Construction CEO Jeffrey Shoaf said in a statement. “This injunction restores the original intention of the Davis-Bacon Act.” LL
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