On June 24th, a U.S. District Court in Texas preliminarily stayed three changes to the U.S. Department of Labor’s (DOL) Davis-Bacon Act regulation that took effect Oct. 23, 2023. The court’s order means DOL may not enforce these provisions for the time being. They include:
• Section 5.2 pertaining to truck drivers and materials suppliers. The final rule required truck drivers performing more than “de minimis” work on the job site to be subject to Davis-Bacon prevailing wages. Similarly, materials suppliers performing construction activities at the job site were also to be subject to the prevailing wage.
• Section 5.5(e) enforcing Davis-Bacon requirements on relevant federally funded construction projects by default, regardless of whether contracts explicitly included them.
Following the ruling, MDOT has acknowledged the preliminary stay with the following statement:
The United States District Court for the Northern District of Texas issued a nation-wide preliminary injunction against several provisions of the Department of Labor’s new 2023 Davis Bacon and Related Acts Rule. These affected provisions directly affect the definitions of “material supplier” and “covered transportation”, and directly impact prevailing wage oversight procedures and guidance.
Contractors should be aware that aside from the three key provisions being challenged, the remaining provisions of the Final Rule remain in effect. The preliminary injunction will remain in place until the case is fully resolved or pending a decision by the Fifth Circuit Court of Appeals, should the DOL appeal the injunction.
Until further notice, MDOT will be enforcing the previously held Truck Driver guidance which was effective prior to October 2023 for all trucking (regardless of contractor or material supplier). A truck driver’s time will be covered by DBRA if the truck driver is exclusively working on the site of the work (loading and unloading onsite). If a truck driver is performing work on and off the site of the work, the driver will be covered by DBRA when the driver’s time exceeds de minimis. De minimis will be defined as being exceeded when a truck driver’s time on the site of work exceeds 20% of the work week.
MITA will continue to work closely with ARTBA to provide input as the legal challenges proceed.
If you have additional questions, please contact any member of the MITA engineering team:
Rachelle VanDeventer | rachellevandeventer@thinkmita.org
Glenn Bukoski | glennbukoski@thinkmita.org
Jeremiah Leyba | jeremiahleyba@thinkmita.org
They can also be reached by phone at the MITA office: 517-347-8336
