When is your construction employee entitled to the Prevailing Wage?

March 15th, 2012

Not everyone who works on a public construction project in Massachusetts has to be in a union.  However, to prevent ordinary workers from undercutting the unions, non-union shops have to pay their employees approximately what union workers make.   Prior to the start of any public works project, a list of the jobs which are to be employed on the project is submitted to the Director of the Department of Labor Standards.  The Director then determines a rate of wages for certain classifications of jobs.  The awarding authority is then furnished with a schedule of such wages and updates these wages on a yearly basis until the project is complete.  This higher hourly rate is called the prevailing wage and is mandated by the Massachusetts Prevailing Wage Laws, G.L. c. 149 §27.   

If you are in the construction business, you want to pay your workers what the law requires.  A basic understanding how workers should be classified under a Director’s schedule of wages is therefore extremely important.   Failure to correctly classify workers can expose employers to significant fines and expensive lawsuits.  A worker who is not paid the appropriate prevailing wage has the statutory right to bring a lawsuit in his or her own name after initially filing a complaint with the Attorney General.  If successful, the employee is entitled to mandatory treble damages for any lost wages, even if it is the employer’s first offense and/or even if the employer’s violation was unintentional. 

For the most part workers will fall neatly under one of the enumerated categories of jobs on the director’s schedule of wages; however, some workers, despite their job title, perform duties which make it difficult to determine whether or not they should be paid the higher prevailing wage.  For example, workers who deliver materials which are not used in road construction do not generally fall under one of the Director’s classifications.  However, when those same workers are in some way “engaged in construction activity” in connection with a public works project, then regardless of their job title, they may be entitled to the prevailing wage.

While there is no bright line rule for an employer to know whether an employee is “engaged in construction activity,” courts have interpreted this phrase as requiring that there be a “significant nexus between the employee’s work and the site of the construction project.”   In other words, regardless of what your employee’s job title may be, an employer should always ask: What exactly is my worker required do at the public works site?   If your employee is required to perform any type of labor on site or in connection with the construction project, that employee should most likely be paid the prevailing wage.   The Department of Labor Standards publishes annual topical outlines which are useful to employers seeking guidance on specific worker classifications. The most recent can be found at http://www.mass.gov/lwd/docs/dos/prevaling-wage/interim-topical-outline.pdf 

Peter Fisher

posted by: joelrosen in BUSINESS, BUSINESS ADVICE & LITIGATION, CONSTRUCTION CONTRACTS & DISPUTES, EMPLOYMENT & DISCRIMATION | 17 Comments

17 Responses to “When is your construction employee entitled to the Prevailing Wage?”

  1. David osgood says:

    I am a surveyor, being paid salary on a prevailing wage job. Am I entitled to the difference between my weekly salary and the weekly prevailing wage amount?

  2. joelrosen says:

    Generally, if you are engaged in public works construction, you are entitled to prevailing wage. The Department of Public Labor sets prevailing wages on every public job. You can check on the commissioner’s list to see if your job is included. If you have any other questions, call Peter Fisher at our office at 978-474-0100.

  3. Victor Gonsalves says:

    When our employees are traveling to & from our shop to a work site, are prevailing wages required to be paid for the travel or just when working at the site?

  4. joelrosen says:

    Employees who have arrived for work are entitled to be paid their usual wage when they travel from the shop to the job site. As a rule, they are only entitled to prevailing wage when they are engaged in public works construction. That’s the general rule, and the answer in your case will depend on the facts. If you are curious to know more, call Pete Fisher at 978-474-0100.

  5. Jason B says:

    Im a non union worker , working on a union job am I entitled to union wages

  6. joelrosen says:

    On federal construction projects, laborers and mechanics are entitled to the prevailing wage rates and fringe benefits listed in the contract’s Davis-Bacon wage determination for corresponding classes of laborers and mechanics employed on similar projects in the area. You get prevailing wage whether you are in a union or not. There may also be a prevailing wage law for public works project in your state.

  7. I worked at the Colorado state capital for the restoration of the doom I asked if I was in titled to Davis bacon wages and they said no because it was bid through the historical society

  8. joelrosen says:

    That doesn’t sound correct, but I would check with a Colorado lawyer.

  9. Is a sprinkler fitter required prevailing wage when doing service calls want to be failing wage job?

  10. Chrissy says:

    Is it true that masonry work on a military base only pays prevailing wage for outdoor work, not work done inside a building?

  11. Tom Johnson says:

    I work for a moving company and I just found out that the MSBCA (Massachusetts state college building authority) funded the move stated by the project manager. I was also told by one of the workers that anytime they move state colleges that they make prevailing wages im not sure whether to believe that person or not

  12. joelrosen says:

    It’s certainly possible. We would have to know more about the job and look into it. Feel free to give us a call at 978-474-0100.

  13. joelrosen says:

    It doesn’t sound right. If you are from MA or NH or working in those states, give us a call to discuss it. 978-474-0100.

  14. joelrosen says:

    I can’t answer your question based on what you’ve told me. Generally, if it’s a prevailing wage job, the workers should be paid prevailing wage.

  15. joelrosen says:

    It’s very possible. I would see an employment attorney who can look into it. If you are right, the employer may be liable for multiple damages and attorneys’ fees. You can give us a call if you like. Thanks.

  16. nick says:

    if i am working in the shop fabricaing duct to be used on a prevailing wage job am i entitled to the site wage rate for metal worker or any other function that pertains to that job? Dose that for all other trades as well?

  17. joelrosen says:

    If you are working “in the shop,” it does not appear that you are working on a public works site. The Massachusetts Prevailing Wage Law for public works projects establishes minimum wage rates for workers on public construction projects. Just because you are performing a task that relates to a prevailing wage job does not entitle you to prevailing wage rates.

    If in fact you are working on a public work site, the second question becomes whether fabricating duct constitutes prevailing wage work. This will depend on whether “fabricating duct” involves any “additions or alterations” to a public work or whether you are “improving upon” the public work site. In those two situations, you would be entitled to prevailing wage.

    As usual, we remind you that we don’t represent you and don’t know enough facts to advise you. This is general information about the prevailing wage laws, but if you want to know about your individual matter, you should see a lawyer.

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