Prevailing Wage

Minimum wage laws are not the only safeguards in place to assure that U.S. workers receive fair compensation. The federal, state and local governments take a particular interest in the fair treatment of construction and maintenance workers employed in taxpayer-funded projects. The government uses the average union wages for construction work in your county or city to determine the ‘prevailing wage’ for non-union construction and maintenance workers working directly or indirectly on taxpayer funded jobs.

Whether you are working directly for a general contractor who is doing work with a local government entity or working for a subcontractor involved in such a project, prevailing wage requirements may enhance your wage and hour rights far beyond what you are entitled to in a purely private job. Our legal team at Joseph & Kirschenbaum LLP is well versed in the legal and practical aspects of prevailing wage laws. We can determine whether these laws applied to you at any job you worked in the last few years and whether your employer violated the law by paying you less than the union workers’ standard in your industry and area even though you are not in a union.

Unlike the minimum wage—which is largely standard throughout a given jurisdiction regardless of the type of work involved—the prevailing wage is the rate of pay, overtime and benefits that construction workers in taxpayer-funded construction projects must receive. Determining the prevailing wage for a particular job is a fact-intensive inquiry that requires the consideration of several factors, including:

• The type of work being performed
• The location at which the work is being performed
• Whether the project is funded by the federal, state, village, city or county government or school district

The New York State Department of Labor and the United States Department of Labor publish detailed schedules of prevailing wages on a county-by-county and trade-by-trade basis. These regulations also include holiday pay and cash equivalencies for various fringe employment benefits that are considered to be required under the prevailing wage law. This applies to registered apprentices as well as fully trained tradespeople. Nevertheless, the nuances involved in properly classifying employees, placing the employment location of traveling employees and many other issues as well still leave a great deal of room for disputes to erupt.

The prevailing wage for construction laborers is in the range of $40 per hour, with overtime at $60 and double pay at $80 per hour for Sundays and holidays. With penalties, this can be as much as $240 per hour for unpaid overtime in prevailing wage jobs. Workers performing specialized functions, such as cement pourers or electricians, receive more. Most construction workers are wholly unaware of their right to the prevailing wage. This means that workers who believe they are being well compensated may still be missing out on the higher amount of pay to which they are legally entitled. The lost wages can add up to tens of thousands of dollars or more, which they will never see unless they take legal action.

Generally, prevailing wage laws apply to workers employed in projects either commissioned or funded by a government entity. The exact scope of these statutes, however, depends on the government entity involved, as defined by these statutes:

• The Davis-Bacon and Related Acts — This federal law applies to employees engaged in federally funded or assisted construction projects involving public buildings or works. The act requires contractors and subcontractors to provide their employees locally prevailing wages and fringe benefits.

• The McNamara-O'Hara Service Contract Act — This federal law requires that contractors and subcontractors performing service contracts for the federal government pay prevailing wages and fringe benefits.

• Articles 8 and 9 of the New York State Labor Law — This law requires that workers performing public works contracts receive the prevailing wage rate and benefits in the county where the work is performed.

With the heavy competition that exists for government contracts, bidders are motivated to cut costs in the hopes of submitting the lowest bid. Some employers may go to great lengths to circumvent prevailing wage laws. While the government is examining these bids for compliance with prevailing wage laws, it still often falls to the workers to assert their own rights through the legal process.

Prevailing wage laws at both the state and federal levels are complex. Fortunately, our team of New York employment law attorneys at Joseph & Kirschenbaum LLP is well acquainted with the intricacies of these statutes. If you are employed in construction on a government or public works contract and you are not getting union level wages and benefits, we may be able to help. We can analyze your case to determine if a violation has been committed and then take appropriate action. Call us today to arrange a complimentary initial consultation. We are available by phone at 212-688-5640. We can also be reached online. Se habla espanol.