For the first time in almost 40 years, the Department of Labor (DOL) announced the issuance of regulations designed to update and modernize the Davis-Bacon and Related Acts (DBRA), which require the payment of locally prevailing wages and fringe benefits on federal contracts for construction. The aptly-named final rule, Updating the Davis-Bacon and Related Acts Regulations (the Rule) will go into effect 60 days after its publication in the Federal Register.
On December 7, 2021, the U.S. District Court for the Southern District of Georgia issued a preliminary injunction temporarily in Georgia v. Biden, halting the enforcement of Executive Order 14042 (EO 14042) nationwide. In doing so, the court joined the U.S. District Court for the Eastern District of Kentucky, which issued a preliminary injunction in Kentucky v. Biden last week halting the enforcement of EO 14042 in Kentucky, Ohio and Tennessee.
Seven states — Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia — the governors of several of those states, and various state agencies filed the lawsuit in the Southern District of Georgia, challenging EO 14042 and requesting that the court issue a preliminary injunction. The Associated Builders and Contractors, Inc. (ABC), a trade organization, moved to intervene in the action, and the court granted ABC’s request. In granting the preliminary injunction, the court determined that the plaintiffs met each of these required elements: (1) likelihood of success; (2) irreparable harm; (3) the balance of the harm; and (4) public interest.
On April 27, 2021, President Joe Biden signed an Executive Order (EO) requiring certain federal contractors to pay workers on government contracts at least $15 per hour beginning January 30, 2022. After 2022, the minimum wage will be adjusted annually for inflation at a rate set by the secretary of Labor (the secretary). The EO supported the minimum wage increase by stating that raising worker wages will promote efficiency in federal procurement through: (1) enhanced worker productivity and generation of higher-quality work from increased workers’ health, morale and effort; (2) reduced absenteeism and turnover; and (3) lowered supervisory and training costs.
Applicable federal contractors should immediately review the 2020 Corporate Scheduling Announcement List (CSAL), released by the Office of Federal Contract Compliance Programs (OFCCP), to see if they have been selected for a future audit.
On August 3, 2020, President Donald Trump signed an executive order and released a related fact sheet in furtherance of the White House’s continued efforts to ensure that federal agencies focus on using United States labor in their federal contracts. This new executive order, which is arguably in furtherance of the previous Buy American Hire American executive orders, requires federal agencies to review their contracts and subcontracts from fiscal years 2018 and 2019 to assess whether their contractors used temporary foreign labor to perform the contracts in the United States or performed such contracts in foreign countries when the work had previously been performed in the United States. Federal agencies are then required to determine whether these temporary foreign labor hiring practices and/or offshoring practices negatively affected opportunities for United States workers. Within the next six months, agencies are required to submit reports to the Office of Management and Budget with their findings and to recommend, if necessary, any proposed corrective actions and the timelines to implement such actions.