Apprentices on Davis-Bacon jobs: who qualifies for the reduced rate

An apprentice can be paid less than the prevailing rate on a Davis-Bacon job. The conditions are strict, and each one is checked by the reviewer because the savings are large: an apprentice at 50 percent of a $42.15 electrician rate is a $21 per hour difference.

Who counts as an apprentice

The regulation defines an apprentice as a person "employed and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship, or with a State Apprenticeship Agency recognized by the Office of Apprenticeship."

Two words carry the weight. Registered means the program itself is registered with the Office of Apprenticeship (OA) or a state apprenticeship agency (SAA). Individually means this particular worker is enrolled in that program, with paperwork to show it.

There is one grace period. A worker who has been certified by the OA or SAA as eligible for probationary employment may be paid the apprentice rate for the first 90 days even before individual registration is complete. After 90 days the registration has to exist.

A worker your company calls an apprentice, or a trainee, or a helper learning the trade, who is not registered in a recognized program is a laborer or mechanic for Davis-Bacon purposes and must be paid the full rate for the classification of work actually performed.

The rate

Apprentice programs set the wage as a percentage of the journeyworker rate that steps up through the program: 50 percent in the first period, 55 in the second, and so on. The percentage in your program's standards, applied to the basic rate on the wage determination for the classification, is the apprentice's basic rate.

Column 2 of the WH-347 asks only for "RA". Adding the period, as in "RA 3", is optional but helps the reviewer check the percentage. The rate in column 6A is the reduced rate actually paid. Reviewers multiply the journeyworker rate on the determination by the percentage in your program and expect to see that number.

Fringe for apprentices

Fringe follows the program, not the percentage. The regulation: "Apprentices must be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification."

So an apprentice at 60 percent of the basic rate whose program is silent on fringe gets 100 percent of the fringe. Paying 60 percent of the fringe is a common underpayment.

The ratio

The number of apprentices on the site in a craft cannot exceed the ratio your registered program allows, or the ratio applicable in the locality of the project. A program that allows 1 apprentice per 3 journeyworkers does not let you staff a job with 2 apprentices and 1 journeyworker.

The consequence is specific: "any apprentice performing work on the job site in excess of the ratio permitted under this section must be paid not less than the applicable wage rate on the wage determination for the work actually performed." The extra apprentice becomes a full-rate mechanic for those hours.

The ratio is measured on the job site, per craft, per day. A crew that is compliant on Monday when 3 journeyworkers are present can be out of ratio on Tuesday when 2 of them are on another job.

Working out of your program's area

If your program is registered in one state and the project is in another, the ratios and the percentage wage rates that apply are the ones in effect where the project is, when the locality has them. If the project's locality has no applicable ratio or rate for that craft, your own program's terms apply. Check with the state apprenticeship agency where the project is before the first week; the answer changes the payroll.

When approval is withdrawn

If the OA or SAA withdraws approval of your program, you lose the right to pay apprentice rates on Davis-Bacon work until an acceptable program is approved again. Workers who were apprentices the week before must be paid full rate the week after.

Helpers are different

A helper classification exists on a Davis-Bacon job only when the wage determination lists one, or when a helper classification has been added through the conformance process. A helper's duties must be clearly defined and distinct from every other classification on the determination, and the use of helpers has to be an established prevailing practice in the area.

Where the determination has no helper classification, a worker doing helper work is paid at the rate for the classification whose work they are doing. Using a "helper" as an unregistered apprentice, with tools in hand doing the trade's work at a discount, is the misclassification investigators find most often.

What goes on the WH-347

Column 2: RA. The level, as in "RA 3", is optional; the form does not ask for it.

Column 6A: the reduced basic rate actually paid.

Columns 6B and 6C: fringe at the program's rate or the full determination fringe, as above.

Page 2, box 4: checked. The table under it lists the apprenticeship program name, whether it is registered with the OA or an SAA, and the labor classification. You certify that every apprentice on page 1 is registered in that program.

Records to keep

The regulation adds a specific recordkeeping duty for apprentices. You must maintain "written evidence of the registration of apprenticeship programs, the registration of the apprentices, and the ratios and wage rates prescribed in the applicable programs."

In practice that is 3 documents per apprentice in the project file: the program's registration certificate, the worker's individual apprenticeship agreement showing their registration and current period, and the page of the program standards that shows the wage progression and the ratio. An investigator who asks for these and gets a shrug will recompute every apprentice hour at the journeyworker rate.

A worked example

Electrician determination: $42.15 basic, $18.40 fringe. Your program is registered with the Ohio State Apprenticeship Council, third-period apprentices are paid 60 percent, and the program does not address fringe. The apprentice works 40 hours.

Column 2 shows "RA 3", box 4 is checked, and the file holds the registration paperwork.

What happens without the paperwork

The DOL's position is not a penalty so much as a recomputation: "Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated ... must be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed." Every hour that worker was paid $25.29 becomes an hour owed at $42.15, with the difference due to the worker. On a season of work that is a five-figure back-wage finding, and the Statement of Compliance you signed with box 4 checked is now a false certification.