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Special Report: Executive Summary of Department of Labor Amended Regulation Concerning the Use of Helpers, December 2000

Dear Member:

The Department of Labor's Wage and Hour Division, Employment Standards Administration, has issued a new final rule concerning the use of "helpers" on federally-financed and assisted construction contracts subject to the prevailing wage standards of the Davis-Bacon Act.

The new rule essentially tightens the definition of a helper by recognizing helpers only "where their duties are clearly defined and distinct from those of journeyworker and laborer classifications," and makes it clear that a "helper" is not the same as a "trainee" in an informal training program.

The new rule is effective Jan. 19, 2001.

The Department of Labor did conduct an economic impact analysis of the new rule, as it is required to do under the Small Business Regulatory Enforcement Fairness Act, and concluded that the economic impact would be "relatively modest" on small businesses.

We have enclosed a copy of the new rule for your information, as well as a brief executive summary of the rule. Please note in particular that roofers are used as part of an illustration of how the rule will be applied (page 69689 of the rule).

As always, please feel free to call with your questions or comments.

Sincerely,

William A. Good, CAE
Executive Vice President

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December 2000

On Nov. 20, 2000, the Department of Labor's Wage and Hour Division, Employment Standards Division issued as a final rule an amendment to the regulations that govern the employment of "helpers" on federally financed and assisted construction contracts subject to the prevailing wage standards of the Davis-Bacon Act and related acts. The new rule is effective Jan. 19, 2001.

Background

In 1982, the Department of Labor revised its prevailing wage regulations to expand the use of helpers on Davis-Bacon projects. The 1982 regulations have been the subject of litigation by organized labor and by some trade associations. In 1992, a federal appeals court invalidated a section of the regulations limiting the use of helpers to a ratio of two helpers for every three "journeyworkers." The Clinton Administration's Department of Labor subsequently suspended the 1982 regulations.

Key Provisions

• The definition of "helper" is amended as follows:



"A distinct classification of 'helper' will be issued in wage determinations applicable to work performed on construction projects covered by the labor standards provisions of the Davis-Bacon and Related Acts only where:


1. The duties of the helper are clearly defined and distinct from those of any other classification on the wage determination;



2. The use of such helpers is an established prevailing practice in the area; and



3. The helper is not employed as a trainee in an informal training program.


• A helper classification will be added to wage determinations only where, in addition, the work to be performed by the helper is not performed by a classification in the wage determination.

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Discussion

The Department of Labor cited three reasons for arriving at the new rule:

1. The department believes that there is currently no good definition of a helper, making it more difficult for both contractors and the department to make fair determinations.



2. The use of helpers, according to the department, is not very widespread.



3. The department is concerned that the use of helpers might work against the goal of increased training, especially at the apprentice level.

In addition, the department noted that it had considered—and rejected—the idea of establishing helper-to-journeyworker ratios for Davis-Bacon work, preferring to rely on area practice.

The department also rejected arguments suggesting that the increased use of helpers would save considerable taxpayer money and determined that the new rule will have no impact on small businesses.

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