DOL Plans to Update Rules for Public Works Contractors

Author: Michael Cardman, XpertHR Legal Editor

June 15, 2021

The US Department of Labor (DOL) intends to "update and modernize" its rules for federal contractors who work on public works projects.

In its semiannual regulatory agenda released June 11, the DOL projected it would propose new Davis-Bacon Act (DBA) regulations in November of this year. (These projections are notoriously unreliable but give an indication of the DOL's regulatory priorities for the near future.)

The DBA establishes minimum wages and working conditions for workers on federal contracts of $2,000 or more for the construction, alteration or repair of public buildings and public works.

Many of the DBA regulations have not been updated since 1983.

Other Rules in the Works

Some other noteworthy times on the DOL's spring agenda include:

  • A rule to implement President Biden's recent executive order requiring most federal contractors to pay their workers a minimum wage of $15;
  • A rule to protect employees from airborne infectious diseases; and
  • A rule for determining when a tipped employee is employed in dual jobs, which will likely limit how much time wait staff, bartenders and others may spend on sidework such as cleaning tables or making coffee.

The DOL also plans to withdraw several Trump administration rules - including a rule on labor standards in apprenticeship - because of what it called "deleterious effects on the lives of working people."

Overtime Salary Threshold Under Review

In related news, the DOL also plans to revisit the Fair Labor Standards Act (FLSA) overtime regulations.

In 2016, under the Obama administration, the DOL issued a rule that would have raised the minimum salary for most overtime-exempt employees to $47,476 per year. However, a federal district court in Texas invalidated the rule before it could take effect.

In 2020, under the Trump administration, the DOL raised the minimum salary threshold to $35,568.

When asked if that threshold is too low during a House Committee on Education and Labor hearing last week, Labor Secretary Marty Walsh replied, "Yes, definitely."

Walsh also said the DOL is considering automatic and regular updates as part of its review. Under the 2016 rule, the minimum salary level would have been automatically adjusted every three years based on the 40th percentile of full-time salaried workers nationwide.

The DOL is not likely to propose a new rule this year, however. The overtime rule is notably absent from the 2021 agenda, but can be found on its list of long-term actions on which the DOL does not expect to take action within the next 12 months.