Modernizing the Davis-Bacon Act Would Benefit Whistleblowers

The Davis-Bacon Act (DBA) is an important statute that requires federal contractors in construction on public buildings or public works to provide a “prevailing wage” to workers as determined by the Department of Labor (DOL) in order to prevent government contractors from underpaying their workers.

A prevailing wage is intended to be the wage that a majority of workers in a given geographic location doing a given job are paid. The DBA applies to a large swath of workers on vital and visible public projects, including those planned under the $1.2 trillion Infrastructure Investment and Jobs Act signed into law last year (You can learn more about the DBA and its importance to infrastructure spending on our blog.) The federal government’s commitment to paying workers the prevailing wage and using the False Claims Act as a vital tool in fighting wage theft – which accounts for hundreds of millions of dollars of underpayments per year – ensures that the government gets the benefit of its bargain under government contracts.

Last month, the DOL proposed a number of changes to the DBA, the first comprehensive review of the statute in nearly 40 years. These proposed changes would affect the enforcement of the DBA as both a function of law and in relation to the False Claims Act (FCA), as well as retaliation provisions that seek to protect concerned workers from employer punishment for speaking out on potential violations.

The proposed changes surrounding enforcement of the DBA carry some very interesting implications. They mainly deal with “operation of law” provisions. One major proposal would hold contractors accountable for non-compliance with the DBA under certain situations even if language expressly holding them to comply with the DBA was mistakenly left out of a DBA-related contract.

Not only would this proposal give the DOL more authority to retroactively incorporate DBA provisions and remedial actions, but it would allow the DOL to retroactively incorporate wage theft when modifying or terminating existing contracts. In the context of the FCA, that would mean that contractors could be held liable for falsely certifying compliance with the DBA even if the contract language is not explicit. These represent a major step forward from current provisions.

These “operation of law” provisions would further enshrine the DBA into law, making it harder for contractors to plead ignorance when faced with accusations of wage theft and easing the prerequisite standards for workers to prove DBA violations in relation to the FCA. These changes may also lead to case law that presents a more modern understanding of wage theft and proving it under the framework of the FCA.

Other proposals would also give the DOL more muscle in regards to DBA enforcement. These include requiring DOL administrators to issue new wage determinations in active contracts that are found to be non-compliant with the DBA, streamlining the standards for banning violators from federal contracts and even allows the DOL to pause compensation to contractors who do not agree to abide by new prevailing wage standards.

The proposed addition of anti-retaliation provisions represents a momentous, trailblazing modernization of the DBA, holding contractors accountable for unfair discrimination against whistleblowers for speaking out on DBA violations. The first major anti-retaliation proposal prohibits retaliation against employees engaged in “protected conduct,” which includes everything from an employee informing their superiors potential DBA violations to legal testimony. By seeking to define “protected conduct”, this proposal would serve as a bedrock to ensure workers know that their concerns will be heard without fear of unfair consequences by their employer.

The second major anti-retaliation proposal establishes the list of applicable financial compensation or other remedial actions to ensure whistleblowers are not harmed for their cooperation with the government and mandates when and how contractors are informed of any potential violations and actions. Most importantly, this proposal explicitly states that withholding wages from whistleblowers is conduct that is subject to the same rigorous standards as the conduct that the “operation of law” provisions seek to address.

A major hurdle that any potential whistleblower faces is the impact that their courageous decision has on their lives. After all, whistleblowers are the individuals who have to live with the daily implications of their decisions, implications which often render it difficult to retain their current employment or to find employment in their industry if they are fired. The proposed anti-retaliation provisions in the DBA, along with the anti-retaliation provisions in the FCA, will work to hold unscrupulous contractors accountable for actions against whistleblowers who are attempting to ensure that workers are paid their fair wage.

Written by Alex Cala of Taxpayers Against Fraud