Working Indiana - Working for Democracy and Justice

in 1931, during the depths of America’s perhaps now second worst depression, former three time Republican secretary of labor and then Pennsylvania senator “Puddler Jim” Davis and his Republican colleague in the Senate, Robert Bacon proposed the Federal Davis/Bacon Act, 40 U.S.C. 3141, requiring that federally assisted construction projects of more than $2,000.00 meet local “prevailing wage” requirements.  Most states, including Indiana, followed suit, passing local common construction wage statutes aimed at protecting local construction labor markets.

A few years ago a group of local Fort Wayne activists used Indiana’s Common Construction Wage statute to secure fair wages for workers employed by a subcontractor at the initial phase of IPFW’s dorm project.  Protecting their wages, hopefully, discouraged future contractors from attempting illegal “discounts” by exploiting workers just to underbid and secure work.  In this way local contractors and our local labor market were protected.  These goals, indeed, mirror the principal policies behind Davis/Bacon.  An equally important policy remains the ‘capture’ of public funds at the level of the worker.  As we approach a new administration and rumors of a new drive to improve national infrastructure it is important to remember that 77% of the American economy is consumer driven.  And, most of those consumers do not participate in the fortunate 10% of U.S. households who have, somehow, taken home a disproportionate amount of America’s wealth over the past decades.  Davis/Bacon and Common Wage are among the scarce legal tools by which American workers are guaranteed that, when their tax dollars are returned as wages for their labor, those dollars will go to the households who actually perform the work.

Yet in the waning days of the Bush Administration, regulations have been put in place designed to frustrate Davis/Bacon.  Under Federal Regulations, 29 CFR 5.5(a)(3)(i) contractors were formerly required to report the name, address, and social security number of every worker together with job classification, hourly rates of pay and daily and weekly hours worked.  The records were kept for three years.

Now, 29 CFR 5.5 (a)(3)(ii)(A) eliminates the requirement to report full social security numbers and home addresses on weekly transmittals.  “Instead the payrolls shall only need to include an individually identifying number for each employee...Contractors and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to the (responsible federal agency) but if the agency is not such a party, the contractor will submit them to the applicant, sponsor, or owner, as the case may be, for transmission to the (agency).”

This “deregulation” of the “Davis/Bacon” labor market went forward despite comments “a majority” of which “raised concerns that the proposed changes could result in difficulties in enforcing the applicable prevailing wage laws because weekly submissions of certified payrolls containing social security numbers and addresses for individual workers are useful to government investigators and auditors in ensuring compliance with...Davis-Bacon...”

In its own comments appended to the new Rule, the Department of Labor dismissed these concerns because it did not “believe the comments provide any concrete basis to support this allegation.  Certified payrolls will continue to  include all required wage and hour data, names and a personal identification number.  Under the revised regulations, contractors and subcontractors will certify that they are maintaing the remaining information.”

Workers who lack proper documentation are not likely to stand up for their Davis-Bacon or Common Wage rights or benefit from the efforts of officials and activists who see to it they are properly paid.  Left unchecked, the continued shameful exploitation of these workers amounts to a complicit, tacit, subsidy undermining our labor markets.  In the IPFW dorm case some workers were given Social Security numbers that identified them as railroad workers from the 1940’s.  The workers themselves were carefully sequestered, packed into hotel rooms and ferried to and from “entertainment” by their watchers.  

Perhaps to the surprise of the Bush DOL, lawyers working on the case found it difficult to obtain properly certified payroll and depended upon receipts from a cooperative restauranteur who had made careful note of the meals he delivered to the work site.  In this way it was possible to corroborate the worker’s testimony about their hours of labor.

Doing away with the requirement of reporting social security numbers will make it difficult to identify undocumented and exploited workers.  Their fear of punishment and deportation will permit unscrupulous contractors a ready means of reducing their wages and eroding local labor markets by offering artificially lowered rates.