11.3 Fair Labor Standards Act (FLSA) & Davis-Bacon Prevailing Wage
Key Takeaways
Under the FLSA, overtime must be paid at 1.5 times the regular rate of pay for all hours exceeding 40 in a single workweek; averaging hours over two weeks is prohibited.
Non-discretionary bonuses and production incentives must be included in the regular rate of pay when calculating statutory overtime compensation.
Manual construction workers are nonexempt regardless of pay method, while a superintendent or foreman may qualify for the executive exemption only when the salary-basis and primary-duty tests—including genuine management authority—are satisfied.
The Davis-Bacon and Related Acts (DBRA) mandate prevailing wages and fringe benefits on federally funded public works contracts over $2,000, reported weekly via certified Form WH-347.
Under F.S. § 255.0992, Florida and its political subdivisions generally may not impose preset wages or employee benefits on public-works contractors except when required by federal or state law.
11.3 Fair Labor Standards Act (FLSA) & Davis-Bacon Prevailing Wage
Quick Summary: FLSA overtime is at least 1.5 times the regular rate after 40 hours in a workweek, with nondiscretionary bonuses included. Manual craftworkers remain nonexempt regardless of title or salary; a superintendent or foreman is exempt only if the applicable salary-basis and duties tests are actually met. Davis-Bacon applies to covered federally funded or assisted construction over $2,000. Florida’s public-works wage restriction is F.S. § 255.0992, not § 255.0991.
Fair Labor Standards Act (FLSA): Overtime & Regular Rate Calculations
The Fair Labor Standards Act (FLSA), enforced by the U.S. Department of Labor (DOL) Wage and Hour Division, establishes minimum wage, overtime pay, recordkeeping, and youth employment standards.
Florida Minimum Wage vs. Federal Minimum Wage
Under the FLSA, employers must pay workers at least the federal minimum wage. However, when federal and state laws establish conflicting rates, employers must pay the higher rate. In Florida, Article X, Section 24 of the Florida Constitution mandates annual state minimum wage adjustments increasing by $1.00 each September 30 until reaching $15.00 per hour on September 30, 2026. Contractors must pay the prevailing Florida constitutional minimum wage to all non-exempt field labor.
The 40-Hour Workweek & Prohibition of Averaging
Under the FLSA, overtime compensation must be paid at a rate not less than one and one-half times (1.5×) the regular rate of pay for all hours worked in excess of 40 hours in a single workweek.
- Workweek Definition: A workweek is a fixed and regularly recurring period of 168 hours—seven consecutive 24-hour periods. It need not coincide with the calendar week and can begin on any day and hour established by the contractor.
- Bi-Weekly Averaging Prohibited: Each workweek stands alone. Averaging hours across a two-week pay period is strictly unlawful. For example, if a carpenter works 50 hours in Week 1 and 30 hours in Week 2 (totaling 80 hours across two weeks), the contractor cannot treat the average as 40 hours per week. The contractor must pay 10 hours of overtime premium for Week 1.
Calculating the Regular Rate of Pay
The regular rate of pay is determined by dividing the employee's total remuneration for the workweek (excluding statutory exclusions) by the total number of hours actually worked that week:
- Included in Regular Rate: Base hourly wages, piece-rate earnings, shift differentials, hazard pay, and non-discretionary bonuses (such as attendance bonuses, safety bonuses, and job completion incentives announced in advance).
- Excluded from Regular Rate: Discretionary bonuses (where the contractor retains sole discretion over payment and amount, not based on prior promises), true gifts, holiday bonuses unrelated to hours worked, and genuine business expense reimbursements (such as mileage or per diem lodging).
Numerical Example:
A non-exempt equipment operator earns $22.00 per hour and works 48 hours during a single workweek. The operator also earns a $120.00 non-discretionary weekly safety bonus.
- Total Straight-Time Earnings: (48 hours × $22.00) + $120.00 bonus = $1,056.00 + $120.00 = $1,176.00
- Regular Rate of Pay: $1,176.00 / 48 hours = $24.50 per hour
- Overtime Premium Pay (Half-Time on Excess Hours): 8 overtime hours × (0.5 × $24.50) = 8 × $12.25 = $98.00
- Total Gross Pay Due: $1,176.00 straight-time + $98.00 overtime premium = $1,274.00
Exempt vs. Non-Exempt Classifications in Construction
The FLSA exempts certain executive, administrative, and professional employees (EAP exemptions) from minimum wage and overtime requirements. Exemption requires meeting both a statutory salary threshold and specific job duty tests.
| Exemption Category | Core Job Duty Requirements | Common Construction Examples |
|---|---|---|
| Executive Exemption | Primary duty is management of enterprise or recognized department; customarily directs work of two or more full-time employees; possesses authority to hire/fire or recommendations carry significant weight | General Superintendent, Operations Manager, Field Operations Director |
| Administrative Exemption | Primary duty is office or non-manual work directly related to management or general business operations; customarily exercises discretion and independent judgment on significant business matters | Senior Project Estimator, Contract Administrator, Safety Director |
| Professional Exemption | Primary duty requires advanced knowledge in a specialized field of science or learning customarily acquired through prolonged intellectual instruction | Licensed Project Structural Engineer, Registered Project Architect |
| Blue-Collar Non-Exempt Rule | Manual laborers and craftworkers are nonexempt regardless of compensation; supervisors are evaluated under the actual salary and duties tests | Electricians, Plumbers, Carpenters, Masons, Equipment Operators |
Foremen and Superintendents: A working foreman whose primary duty is manual production or who lacks genuine management authority is nonexempt. A superintendent or foreman may satisfy the executive exemption when paid on the required basis, primarily manages a recognized unit, regularly directs at least two full-time employees or their equivalent, and has qualifying hiring/firing authority or recommendations. Title alone never controls.
Compensable Hours, Travel Time & Recordkeeping
Determining compensable "hours worked" under the Portal-to-Portal Act is critical on commercial jobsites:
- Ordinary Commuting: Normal travel from an employee's home to the first jobsite and from the final jobsite back home is not compensable.
- Travel Between Jobsites: Travel between work locations during the workday (such as moving from Site A to Site B) is compensable work time.
- Yard to Jobsite Travel: If employees are required to report to the contractor's shop or yard to load tools, materials, or company trucks before driving to the jobsite, their compensable workday begins upon arrival at the shop.
- On-Call Time: "Waiting to be engaged" (where an on-call employee is free to pursue personal activities at home with a reasonable response time) is not compensable. However, an employee "engaged to wait" (restricted to the jobsite or unable to use time freely) must be paid for all waiting hours.
- Safety Meetings: Attendance at mandatory safety briefings, OSHA toolbox talks, or company training meetings is compensable work time.
Statutory Record Retention Requirements
- Three-Year Retention: Under the FLSA, contractors must retain for at least three years all basic payroll records, collective bargaining agreements, and sales/purchase records.
- Two-Year Retention: Basic employment and earning records supporting payroll computations—such as time cards, piece-work tickets, wage rate tables, and work schedules—must be preserved for at least two years.
Davis-Bacon and Related Acts (DBRA) & Copeland Anti-Kickback Act
Federal and federally assisted public works projects impose prevailing wage standards under the Davis-Bacon and Related Acts.
Davis-Bacon Act Requirements
- Applicability: Applies to contractors and subcontractors performing on federally funded or federally assisted construction, alteration, or repair contracts exceeding $2,000.
- Prevailing Wage Determinations: The U.S. Department of Labor issues wage determinations specifying the minimum basic hourly rate and fringe benefit rate for each trade craft in the project county.
- Payment of Fringe Benefits: Contractors may satisfy fringe benefit obligations by:
- Making irrevocable contributions to bona fide employee benefit plans (health insurance, pension, approved apprenticeship programs).
- Paying the cash equivalent directly to the employee in their weekly paycheck as an additional hourly wage.
- A combination of bona fide plan contributions and direct cash payments.
Weekly Certified Payroll & Form WH-347
- Submission Frequency: Contractors and all tiers of subcontractors must submit certified payroll records weekly to the contracting federal or state agency.
- Required Content: Records must document each worker's name, craft classification, hours worked daily and weekly, gross wages, itemized deductions, and net wages paid.
- Statement of Compliance: Each weekly submission must include a signed Form WH-347 "Statement of Compliance" executed by the contractor or authorized officer, certifying under penalty of perjury that the payrolls are correct and that workers received full prevailing wages without unauthorized deductions.
Copeland "Anti-Kickback" Act (18 U.S.C. § 874 & 40 U.S.C. § 3145)
The Copeland Act makes it a federal crime to induce any person employed on a public building or public work to give up any part of the compensation to which they are entitled. It strictly limits allowable payroll deductions to statutory taxes and court-ordered withholdings without prior written approval from the U.S. Department of Labor. Violations carry criminal fines and imprisonment up to five years.
Florida Public Works Wage Restrictions (F.S. § 255.0992)
For a public-works project funded in whole or in part by state-appropriated funds, F.S. § 255.0992 generally prohibits the state or a political subdivision from requiring a contractor, subcontractor, or material supplier to pay employees a predetermined wage or provide specified benefits. The restriction does not displace a wage or benefit required by federal or state law. Accordingly, a federally assisted project may still carry Davis-Bacon requirements.
Do not cite F.S. § 255.0991 for this rule; that neighboring section concerns preferences in public works. Depending on the project and local measure, other preemption provisions may also require analysis.
Comparative Overview: FLSA vs. Davis-Bacon Act
| Regulatory Feature | Fair Labor Standards Act (FLSA) | Davis-Bacon and Related Acts (DBRA) |
|---|---|---|
| Primary Scope | Covered employment in commercial and residential construction | Covered federally funded or assisted construction contracts over $2,000 |
| Minimum Wage Base | Higher applicable federal or Florida minimum | DOL prevailing craft wage determination |
| Fringe Benefits | Not generally mandated by FLSA | Required rate paid through bona fide plans, cash, or both |
| Overtime Requirement | 1.5× regular rate after 40 hours in a workweek | Related federal overtime rules may apply in addition to prevailing wages |
| Reporting | Employer payroll and time records | Weekly certified payroll and Statement of Compliance |
| Florida Public Works | Florida minimum-wage law remains applicable | F.S. § 255.0992 bars preset state/local public-works wages unless federal or state law requires them |
A non-exempt Florida equipment operator earns an hourly base wage of $22.00 per hour and works 48 hours during a single workweek. The operator also receives a $120.00 non-discretionary weekly safety bonus. Under the Fair Labor Standards Act (FLSA), what is the total gross pay due to the worker for that workweek?
$1,144.00
$1,232.00
$1,250.00
$1,274.00
On a $1.5 million federally assisted public building renovation project subject to the Davis-Bacon and Related Acts (DBRA), what are the contractor's legal obligations regarding wage rates and compliance reporting?
Submit monthly payroll summaries to the local county building department within 30 calendar days following the close of each month.
Pay laborers and mechanics at least the prevailing wage and fringe benefits weekly, and submit weekly Form WH-347 certified payroll records with a signed Statement of Compliance.
Withhold 10% of prevailing fringe benefits and deposit them into an operating account for general administrative overhead.
Pay prevailing wages exclusively to salaried supervisory personnel, while exempting temporary craft laborers and trade apprentices.
A Florida county conditions a wholly county-funded public-works award on payment of a locally predetermined prevailing wage not otherwise required by federal or state law. Which statute directly addresses that condition?
F.S. § 255.0992 generally prohibits the preset wage condition on the covered public-works project
F.S. § 255.0991 authorizes every local prevailing-wage ordinance
The condition is valid only above $500,000
Federal minimum-wage law automatically authorizes the local schedule
Sections you finish are checked off in the contents.