New York Employment Lawyer Blog

The Davis-Bacon Act ("Act") applies to contractors and subcontractors working on federally funded or assisted contracts in excess of $2,000 for the construction, alteration, or repair (including painting and decorating) of public buildings or public works.

All contractors and subcontractors covered by the Act must pay their workers employed under the contract no less than the locally "prevailing wages" and fringe benefits for corresponding work on similar projects in the area. The "prevailing wage" is the combination of the basic hourly rate and fringe benefits, and is published on the Wage Determinations OnLine website for contracting agencies to incorporate them into covered contracts.

Furthermore, contractors and subcontractors are required to pay covered workers weekly as well as submit weekly-certified payroll records to the contracting agency. In fact, payments to construction companies doing federal work are expressly contingent upon this weekly certification.

Pursuant to the Act, the prime contractor is responsible for ensuring that all employees of all subcontractors are paid the applicable prevailing wage, and will be liable for a subcontractor's failure to do so. See 29 C.F.R. § 5.5(a)(3)(ii)(A)("The prime contractor is responsible for the submission of copies of payrolls by all subcontractors."); 29 C.F.R. § 5.5(a)(6)("The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5."); 29 C.F.R. § 5.5(b)(4)("The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (b)(1) through (4) of this section.")

Furthermore, the regulations explicitly state that, "In the event of any violation of the clause set forth in paragraph (b)(1) of this section, the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages." 29 C.F.R. § 5.5(b)(2).

If you are working under a federally funded or assisted contract for the construction of a public building, and are not receiving the correct "prevailing wage," we recommend consulting with a New York City employment attorney as soon as possible.

The Office of Federal Contract Compliance Programs (OFCCP) is an agency within the United States Department of Labor. The OFCCP is responsible for ensuring that all employers doing business with the Federal government comply with the mandated anti-discrimination laws and regulations. Specifically, the OFCCP administers and enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, as well as the Vietnam Era Veterans' Readjustment Assistance Act.

Executive Order 11246 prohibits Federal contractors and subcontractors, who do over $10,000 in government business in one year, from engaging in workplace employment discrimination on the basis of race, color, religion, sex, or national origin. It also requires these contractors to take affirmative action to ensure that applicants and employees are treated equally, without regard to their race, color, religion, sex or national origin. Section 503 of the Rehabilitation Act of 1973 prohibits discrimination against qualified individuals with disabilities, and the Vietnam Era Veterans' Readjustment Assistance Act requires that employers with Federal contracts or subcontracts of $25,000 or more provide equal opportunity and affirmative action for Vietnam era veterans and special disabled veterans.

The OFCCP routinely conducts compliance evaluations to determine whether a Federal contractor is complying with its obligation to maintain a non-discriminatory workplace. The OFCCP also investigates complaints filed against a Federal contractor that allege discrimination against a group of individuals or discrimination that is systemic in nature. Although the OFCCP is primarily focused on Federal contractors that have shown a pattern of discrimination in the past, any complaint filed by a current or former employee is given proper consideration and can lead to a complete review.

If your company does business with the Federal government, you should speak with an OFCCP attorney to make sure that the business is in full compliance with all OFCCP requirements.