Many companies don’t feel they can competively bid on federally funded contracts because they cannot afford the increase in employee payroll, however, the Davis Bacon act allows non prevailing wage paying contractors to comply with the prevailing wage rates in a tax advantaged way. In this blog post, I will explain why employers working on federally funded projects might want to consider providing the fringe benefit portion of the prevailing wage in the form of a bona fide benefit plan. It is a complex area but through this post, I hope to highlight a few of the high-level concepts and benefits associated with the Davis-Bacon Act and employee benefit plans.
The Davis-Bacon Act of 1931
For those of you not familiar with the Davis-Bacon Act, it is a depression-era law requiring the payment of a "prevailing wage" to the actual laborers and mechanics performing work on certain federally funded projects. The law, which is governed by the Department of Labor (DOL), was enacted to protect local contractors from unfair competition. This unfair competition typically presented itself in the form of non-local contractors coming into the area and obtaining federally funded projects by underbidding local wage levels.
The Concept of “Prevailing Wage”
To appreciate the benefits of the Davis-Bacon Act one first has to understand the concept of prevailing wage and the cost savings opportunities it represents. The “prevailing wage” rate is essentially a combination of a base rate (often expressed as an hourly wage rate) and fringe benefits. Rates are set by the DOL and apply to all federal government contracts in excess of $2,000 for construction, alteration or repair of public buildings or public works projects. The prevailing wage is a function of geographic location and class of laborer with rates often based on a local union scale and generally determined on a county-by-county basis.
The Fringe Portion of the “Prevailing Wage” Can Be Paid in Several Different Ways
The Davis-Bacon Act stipulates that fringe benefits can be paid as additional cash wages. While many companies do it this way for simplicity’s sake, paying the fringe benefit portion of the prevailing wage in cash can be a costly practice. If paid in cash, the fringe benefit portion of the prevailing wage is subject to normal payroll tax burdens including F.I.C.A./Medicare, F.U.T.A., S.U.T.A., Public Liability Insurance, and Workers Compensation.
Alternatively, the Davis-Bacon Act allows for the payment of fringe benefits in the form of a contribution to a “bona fide” benefit program on the participant’s behalf. In the eyes of the DOL, contributions to retirement accounts, health and/or life insurance, vacation time and paid holidays, sick leave, severance pay and supplemental unemployment benefits all qualify as “creditable fringe benefits” and thus satisfy the prevailing wage requirement.
Given that the average payroll burden is between 14% ‐ 25%, the alternative option of providing fringe benefits in the form of a bona fide benefit plan can be a lower cost and a much more attractive practice for employers bidding on federally funded contracts.
Requirements of a “Bona Fide” Fringe Benefit Plan
There are federal Davis-Bacon Act requirements as well as 32 different state laws regarding prevailing wages. The intent behind all of them is the same but each differs slightly in terms of wording, terminology, implementation and enforcement. Be that as it may, when it comes to paying for fringe benefits through an employee benefits plan, there are a number of criteria that must be met in order for the plan to be credited as “bona fide” fringe benefits and thus satisfy prevailing wage requirements. At a very high level, the basic criteria include:
- The plan must be legally enforceable and communicated in writing to covered employees
- The plan must convey a benefit to the person actually performing the work
- The plan must meet the requirements of ERISA
- Plan contributions must be irrevocable
- Plan contributions must be made to a third party or trust
- Davis-Bacon dollars contributed to a retirement plan must be deposited at least quarterly
- Fringe benefits paid must be accounted for on an hourly basis (via weekly payroll reporting form WH347)
The Affect of the Davis-Bacon Act on Different Types of Employee Benefit Plans
- Profit Sharing Plans
Profit sharing plans are being used for Davis-Bacon purposes as they allow an employer the flexibility to provide Davis-Bacon fringe benefits for employees working on federal projects as well as reserve employer discretionary contributions for office staff, managers and/or mechanics or laborers working on non-Davis-Bacon projects. There are, however, some caveats to utilizing this type of plan for Davis-Bacon purposes so proceed with caution. In particular, it is important to know that this type of plan would not fall under any regulatory safe harbor provisions as it relates to nondiscrimination. Because of the way in which Davis-Bacon allocations are calculated, the plan would be subject to the general nondiscrimination test with respect to all contributions. Where this could get problematic is if a Davis-Bacon fringe benefit is allocated to a highly compensated employee at a rate greater that the rate of the employer’s discretionary contribution. There are ways to avoid this kind of problem and still satisfy the prevailing wage requirement but, again, proceed with caution. Also, remember that the traditional practice of annually funding a profit-sharing plan does not comply with the Davis-Bacon Act – the Davis-Bacon Act requires that dollars contributed to the plan must be deposited at least quarterly.
- Defined Benefit Plans
While it is certainly possible to utilize a defined benefit plan for Davis-Bacon purposes, this is often not a cost-effective choice for all but the very largest of employers. It can be quite costly to administer; it is not easy to meet the fringe benefit requirement for all classes of workers; and employers would still run the investment risk of plan assets being insufficient to pay the formula determined benefits. In addition, employers would be required to pay Pension Benefit Guaranty Corporation premiums to insure benefits.
- 401 (k) Plans
Typical 401(k) plans are funded with employee elective deferrals and this does not qualify as a Davis-Bacon fringe benefit. The plan can, however, be modified to include an additional contribution source — prevailing wages. These contributions would cover only prevailing wage employees and include a separate service and vesting requirement from the 401(k) deferrals and match. Employers with existing Safe Harbor 401(k) plans often modify their plans to include the prevailing wage contribution source in order to utilize the prevailing wage fringe to offset the required Safe Harbor contribution.
- Custom Designed Plans
Certainly custom plans can be created for purposes of meeting Davis-Bacon requirements but these are best designed and drafted by ERISA counsel as the complexities associated with the benefits and allocation formulas can be overwhelming to say the least.
This post only scratches the surface of what is a very detailed subject but as you can see, providing fringe benefits in the form of a bona fide benefit plan can be highly advantageous for employers working in the federally funded contract arena. Most certainly, there is an added layer of design, administrative and compliance challenges when dealing with both the prevailing wage requirements of the Davis-Bacon Act and ERISA regulations for qualified plans but the bottom line is that the resulting rewards far outweigh the complexities involved. Be sure to seek professional expertise and counsel to ensure your plan is in compliance.