October 29, 2024
Via Email (WHDPRAComments@dol.gov)
Jessica Looman
Administrator
Wage and Hour Division
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, D.C. 20210
Re: Comments in response to U.S. DOL’s proposal to update Form WH-347
Control No. 1235-0008
The Foundation for Fair Contracting – Mid-Atlantic Region (“FFC”) submits these comments in response to the U.S. Department of Labor’s (“DOL”) proposal to update the Davis-Bacon certified payroll form (“Form WH-347”). 89 Fed. Reg. 70,670 (Aug. 30, 2024).
FFC is a nonprofit labor-management organization dedicated to promoting contractor compliance with federal, state, and local prevailing wage requirements, particularly in the District of Columbia and Maryland. FFC works with several contractor associations such as the National Electrical Contractors Association Chapters of Washington, D.C. and Maryland, the Ironworkers Employers Association of Washington, D.C., Maryland, and Virginia, the Mechanical Contractors Associations of Metropolitan Washington and Maryland, the Sheet Metal & Air Conditioning Contractors National Association Mid-Atlantic Chapter, and with several labor organizations - all of whom share an interest in preserving area labor standards for the benefit of workers and their families, and ensuring a level playing field for contractors.
FFC has an especially keen interest in the proposed improvements to Form WH-347, which also serves as guidance for states that have their own prevailing wage laws and reporting requirements. FFC monitors compliance with prevailing wage laws by, among other things, using the Freedom of Information Act, 5 U.S.C. § 552, to obtain certified payroll reports (“CPRs”) from government contracting agencies to ensure that contractors and government contracting officers comply with their statutory and regulatory obligations. FFC also interviews workers to verify the accuracy of the information in CPRs and counsels those workers on how best to recover what they are owed. There is no other public interest organization in the District of Columbia, Maryland, or Virginia dedicated to monitoring public construction projects for prevailing wage law violations and finding ways to remedy those violations. To date, FFC has helped workers recover $4.5 million in back wages.
FFC fully supports and adopts the comments and recommendations of North America’s Building Trades Unions (“NABTU”) concerning improvements to Form WH-347. FFC understands that certified payrolls are important to any investigation concerning prevailing wage compliance, and most of the cases that FFC has investigated involve CPR review.
For example, through certified payroll review, FFC helped DOL uncover prevailing wage violations on an affordable housing project in the District of Columbia. FFC initiated its investigation by submitting a Freedom of Information Act request to the contracting agency – the D.C. Department of Housing and Community Development – for certified payrolls from contractors on the housing project. FFC detected inconsistencies with respect to various items reported on the certified payrolls, including the withholding tax deductions. Based on those inconsistencies and worker interviews, FFC submitted a complaint to DOL, alleging that the sheet metal subcontractor on that project – Big G Sheet Metal Work, Inc. (“Big G”) – was not paying workers the proper prevailing wage rates, and that it had falsified information on its CPRs. DOL agreed, and the case was ultimately settled when Brothers Mechanical, Inc. – Big G’s upper tier contractor – agreed to pay over $190,000 in back wages. See In the Matter of Brothers Mechanical, Inc. et al., OALJ Case No. 2018-DBA-0004 (July 8, 2019).
Similarly, through another certified payroll review, FFC helped uncover prevailing wage violations on a school construction project in Baltimore, Maryland. FFC initiated its investigation by submitting a Public Information Act request to the contracting agency – the Maryland Stadium Authority (“MSA”) – for CPRs from contractors on the project. FFC detected inconsistencies with respect to items reported on the certified payrolls, including repeat check numbers listed. Based on those inconsistencies and worker interviews, FFC submitted a complaint to MSA, alleging that a drywall subcontractor on the project – JP Superior Contractor, Inc. (“JP”) – had not paid workers the proper prevailing wage rates, and that it had falsified information on its CPRs. MSA agreed, and the agency’s investigation was ultimately settled June 11, 2018, when J&G Building Group – JP’s upper-tier contractor – issued payment of over $59,000 in back wages to six drywall workers on behalf of JP.
Certified payrolls can also enhance compliance by empowering third-party whistleblowers to initiate False Claims Act actions against unscrupulous contractors. FFC has initiated several actions under the Maryland False Claims Act that are currently under review by the state.
If adopted, DOL and NABTU’s proposed updates to Form WH-347 will go a long way toward deterring lawless contracting in federal and federally assisted construction, and ensuring that prevailing wage projects create good, family-supporting construction jobs.
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