Labor Compliance Newsletter - January 2009

This is the third issue of the Labor Compliance newsletter.  This quarterly newsletter is intended to achieve greater compliance and consistency throughout the State in our Federal Aid requirements, primarily with respect to payroll and payroll reporting issues.  Florida Department of Transportation (FDOT) Secretary Kopelousos has established a goal of "One FDOT - We are one agency, united. Central Office and Districts, including Turnpike, we are one DOT working together."  To help make this happen, operational consistency between Districts is essential.  This newsletter was established as a common communication tool to all of the stakeholders striving to comply with our Federal Aid requirements - those within FDOT, the consultant community and our contracting partners.  It is our common goal to fully comply with applicable Federal Aid requirements and to do so in a manner that is consistent in application, effective in achieving compliance, and efficient in administration.  Hopefully, this newsletter will promote these ideals.

 

 

 

 Changes to Payroll Reporting Requirements                                                                                    Back to Top

As many of you might already be aware, the US Department of Labor revised its regulations to better protect the privacy of workers whose information is reported on certified payrolls.  On December 19, 2008, the Federal Register reported a change to the Title 29 of the Code of Federal Regulations, Parts 3.3 and 5.5.   The change to reporting requirements no longer requires that employees' full Social Security numbers and addresses be reported on the certified payrolls; the payrolls need only include an individually identifying number for each employee (for example, the last four digits of the Social Security number) rather than the full Social Security number.  There is no change to the records required to be kept by the employer.  The effective date of this change was stated to be for contracts entered into after January 18, 2009.
 

For FDOT work, the requirements for payroll records and payroll reporting are included in the contract documents in the form FHWA-1273, and adherence to these requirements is prescribed by Special Provision 7-1.1 of the FDOT contract.  The FHWA-1273 requires that all subcontracts and purchase orders include the Required Contract Provisions contained in the document, and specifically prohibits incorporation by reference in the subcontracts (i.e., the text of the FHWA-1273 must be included).  For your reference, the FHWA-1273 may be accessed by clicking the following: FHWA 1273.pdf

 

At this point, the FHWA has not revised their contract provisions, so the FDOT must continue to use the 1994 version.  Preliminary guidance from the USDOL says that, "...we are required to apply the labor standards clauses contained in the contract."  What this means is that we must continue to require the submission of Social Security numbers and addresses on all existing contracts as well as those entered into after this date with the 1994 version of the FHWA-1273.  Any changes to this guidance will be communicated as soon as it becomes known.
 

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Revisions to Contract Compliance Workbook                                                                                    Back to Top

The Department maintains a Contract Compliance Workbook on our EEO website to promote and facilitate compliance with EEO regulations and payroll requirements.  The Workbook is a guide intended to assist contractors in complying with the regulations - it does not add or modify any requirements.  The Workbook is updated annually in January.  Chapter 6 of the Workbook addresses wages and payroll requirements and included relatively minor changes this year.  All Workbook changes are summarized in a "Change Summary" included on the website.  All chapters of the Workbook and the Change Summary may be accessed at the following website: http://www.fdot.gov/equalopportunity/ContractComplianceWorkbook.shtm

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USDOL Wage Survey                                                                                                                                      Back to Top

In January, 2009, the USDOL initiated a wage survey to update the highway wage tables in Florida.  As part of this survey, USDOL has asked that Florida DOT collect and submit one payroll for each contractor for each project each month.  We may be contacting contractors and subcontractors for clarification on such issues as type of equipment operated, type of truck, type of fringe benefits provided, union or non-union employees, etc.  The USDOL may also contact the employers directly.  Hopefully, the updated wage tables will include a more complete array of classifications and reduce the need for additional classification requests.  This survey will continue through December 2009.

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Warranty Work                                                                                                                                                  Back to Top

In June of 2008, the FHWA issued a memorandum addressing the applicability of Prevailing Wage Rate Requirements to Federal Aid Projects.  One of the issues included in the memorandum was warranty work.  The memo stated, in part:

23 U.S.C. 113 applies to warranty or repair work if this work is required in the original construction contract. This is true regardless of whether there is a pay item for the warranty work. If an employee spends more than 20 percent of his/her time in a work week engaged in such activities on the site of the original work, he/she is covered for all time spent on the site. The original contract prevailing wage rates apply regardless of when the warranty work is done. This is consistent with the DOL Wage and Hour Division Opinion Letter dated March 9, 1973, that concluded Davis-Bacon Related Act requirements applied to warranty/repair work for the construction of prefabricated housing units. The DOL determined that such work was covered because it took place at the site of the construction work and involved more than an incidental amount of construction activity.

 

This means that prevailing wages and certified payrolls are required if warranty work is performed on a job that originally included these requirements if employees spend more than 20% of his/her time in a work week on the site of work.  Any questions regarding the applicability of this provision or the specifics of payroll submittal should be directed to the District Contract Compliance Manager.

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 Economic Stimulus Package                                                                                                                       Back to Top

Although Congress has not yet passed the economic stimulus package requested by President Obama, it appears that the bill will include Federal funding for many new road projects.  Indications are that transportation projects will be a major part of the package, and that all such projects will include the standard requirements for Federal-aid jobs - including prevailing wage and certified payrolls.  Early projections have Florida receiving over $1 billion.  Indications are that the funds will be required to be obligated within 180 days or awarded within 120 days.  If this comes to fruition, it will be a very busy year for those of us dealing with compliance issues.

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Equipment                                                                                                                                                          Back to Top

Many (if not most) of our projects require that the contractor sweep or vacuum the roadway.  This is generally required after milling of asphalt, profiling of concrete, or in preparation for paving.  However, none of the Highway wage tables include an equipment operator classification for Mechanical Sweeper or Vacuum Truck.  When the sweeping is performed with an attachment to a utility tractor, the operator may be classified under the existing equipment operator classification of "Tractor - Light" or "Tractor."  If the debris removal is done with a Mechanical Sweeper or Vacuum Truck, an Additional Classification Request must be submitted.  We recommend that the classification be labeled as "Sweeper Operator", as this will afford the contractor greater flexibility in the equipment to be used.  Hopefully, the new round of surveys will result in the inclusion of this classification in the new Highway wage tables.

 

Pictured below are examples of the Mechanical Sweeper and Vacuum Truck, along with a photo of the attachment on a tractor.