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Construction & Technology
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Q 1. Does it matter who employs the truck driver for the application of Davis Bacon?
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Answer:
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No. In the decision reached in Building and Construction Trades Dept. v. Midway, decided on May 17, 1991, the Court of Appeals for the District of Columbia Circuit held that language in Department of Labor (DOL) regulation was inconsistent with the Davis-Bacon Act. That case involved truck driver employees of the prime contractor's wholly owned subsidiary, who were delivering materials from a commercial supplier to the construction site. The material delivery truck drivers spent ninety percent of their workday on the highway driving to and from the commercial supply sources, ranging up to 50 miles round trip and stayed on the site of the work only long enough to drop off their loads, usually for not more than ten minutes at a time. At issue before the D.C. Circuit was whether the "material delivery truck drivers" were within the scope of construction as defined by the regulatory provision then in effect at 29 CFR 5.2(j). The Court of Appeals ruled that material delivery truck drivers, who come onto the site of the work merely to drop off construction materials, are not covered by the Davis-Bacon Act even if they are employed by the government contractor, because they are not "employed directly upon the site of the work". Subsequent Appeals Court rulings in two other cases further addressed the scope of the "site of the work". In a Final Rule published in the Federal Register on December 20, 2000, 65 FR 80268-80278, the Department of Labor issued revised regulatory definitions of the terms "site of the work" and "construction".
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