L&I Continues to Violate Their Own Regulations

The Washington State Department of Labor and Industries is still in violation of their own regulations that requires that any corrections to prevailing wage rates be published, but not effective until 30 days after publication.

On October 10, 2008, L&I announced corrections to the prevailing wage rates for truck drivers for the following counties: Adams, Asotin, Benton, Columbia, Ferry, Franklin, Garfield, Lincoln, Pend Oreille, Spokane, Stevens, and Whitman. The announcement noted that the wages were corrected as of October 10, 2008 and that the changes were effective August 31, 2008.

Making such changes effective retroactively not only is inconsistent with L&I's regulations in WAC 296-127-011, but it also creates an administrative and enforcement quagmire for both public agencies and contractors. For any public works project with a bid submittal deadline from August 31, 2008 through October 9, 2008, the public agency would have published wage rates effective as of August 31, 2008. By their "correction" L&I is now stating that the wage rates they originally published on August 1, 2008 and made effective on August 31, 2008, and that everyone relied upon, are not, in fact, the actual prevailing wage rates. The actual prevailing wage rates are those published on October 10, 2008 - rates that no one bidding from August 31st through October 9th would have had any idea existed.

L&I has recently added a note to their website that states the following: "During the period between August 1st, 2008 and August 31st, 2008 the wage rates for 8/31/08 are subject to correction and are valid on August 31st. If you have printed, viewed or relied upon the rates for 8/31/08 prior to the 31st, please reprint and review those rates."

While it's somewhat helpful for L&I to add this note, the practice of correcting wage rates even during August and still maintaining an August 31st effective date is inconsistent with WAC 296-127-011. In addition, what the note on their website doesn't say is that they plan to continue to correct wage rates even after August 31st but will still make those corrected wages effective as of August 31st.

From an administrative and enforcement effort, L&I's failure to follow their own regulations has made practical compliance with corrected prevailing wage rates next to impossible. In addition to being more careful in the future with publishing the correct prevailing wage rates in the first place, L&I should change their correction practice to be consistent with WAC 296-127-011.