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 https://rosengoyal.com/wp-contentwww.mass.gov/lwd/docs/dos/prevaling-wage/interim-topical-outline.pdf
–Peter Fisher