The Massachusetts Prevailing Wage Law

A law called the Bacon Davis Act sets prevailing wages for federal contractor jobs, and the Massachusetts Prevailing Wage Law sets wages for certain jobs involving the state or local governments.

Basically, the prevailing wage law in Massachusetts creates special minimum wages for jobs on public works projects.  The law requires the Massachusetts Office of Labor and Workforce Development (“LWD”) to maintain a list of jobs that are typically performed on public works. The LWD assigns to those jobs a minimum hourly rate (which is known as the “prevailing wage”).

Any employer paying less than the prevailing wage on a public works project has violated the law, and the consequences can be significant. The prevailing wage law is a strict liability statute. That means that mistakes don’t provide a defense.  Some common ways in which employers violate the prevailing wage law include:

  1. Not paying public works employees the prevailing wage rate;
  2. Misclassifying an employee as being in a different job that what prevailing rate sheet and descriptions require;
  3. Not paying the prevailing rate by claiming that an employee is working “off site” when that’s not really true; and
  4. Not paying the prevailing rate for travel time throughout the day for non-construction projects.

When an employee is not paid the prevailing wage rate, he may bring a lawsuit for “for injunctive relief, for any damages incurred, and for any lost wages and other benefits.” M.G.L. c. 149, § 27.  Importantly, an employee who wins a prevailing wage case is entitled to triple (“treble”) damages along with an award of the reasonable attorneys’ fees and costs.  There can be a lot of money at stake in prevailing wage cases because of the prevailing wage rates are usually high.

What is a Public Works Project?

The prevailing wage applies on public works projects.  So, what are those?

First, private companies often do public works under contract with the federal, state, county, city or town government.

Generally, there are two types of government-funded public works, ones involving construction and ones not involving construction.  Construction projects involve “additions to and alterations of public works,” M.G.L. c. 149, § 27D.

However, the non-construction provisions of the prevailing wage law, Section 27F, is much broader, and it addresses situations where a “truck or any automotive or other vehicle or equipment is to be engaged in public works” and requires that prevailing rates “be paid to the operators of said trucks, vehicles or equipment.” Unlike Section 27, Section 27F is not limited to public works involving construction.

Overtime and the Prevailing Wage

The Supreme Judicial Court of Massachusetts has made it clear that hours worked over 40 per week (overtime hours) have to be paid at 1 ½ times the prevailing wage rate, not some lower rate preferred by the employer.  See Mullally v. Waste Mgmt. of Massachusetts, Inc., 452 Mass. 526 (2008).

Pay Records on Prevailing Rate Jobs

Contractors or subcontractors, awarded a public works contract, must, under the pains of perjury, keep a record of all “mechanics and apprentices, teamsters, chauffeurs and laborers” employed on the project showing the name, address, occupational classification, hours worked and wages paid to each employee. Those records must be submitted weekly to the government.  We can get copies of those records when we file a wage claim against an employer.

Should you be Receiving the Prevailing Wage or a Higher Prevailing Wage Rate?

This is the key question, and the answer is not always easy to figure out.

Massachusetts has a long history of setting wages on public works projects.  While the law has a long history, there are no regulations. The main source of clarification is a small body of case law that has developed over the years. Importantly, the LWD also issues opinion letters and a summary that helps to clear up ambiguities and misunderstandings about employee and job classifications.  The opinion letters by the LWD are given “great deference” by the courts, and so they are helpful in understanding the prevailing wage law.

If you can also try using the state web site to look up the wage rates that apply to your employer’s contract.  The link is here, but it is not very user friendly.

False Claims Act Cases and the Prevailing Wage

This is an emerging area of law in which a company can be sued for the amounts of contracts with the government when they do not pay the applicable prevailing wage.  The basis of this kind of case is that the contractor certifies that it is paying the correct rates to its employees, and if it doesn’t do so, it is taking government funds under false pretenses.

As employee bringing a successful false claims case (also known as a “qui tam”) case to recover money for the government can receive a generous percentage of the total amount recovered.

Help with Prevailing Wage Issues

Part of our job is to study all these sources and know the ins and outs of the prevailing wage law.  So, if you are working on a government-funded job (like one involving roads or sidewalks or public buildings or infrastructure) and not getting the right prevailing wage rate for your work, get in touch for a free consultation.  If we take your case, we only get paid via the other side, not from you.

If you are an employee who thinks he may be being deprived prevailing wage pay, you can call us at the number above or just email us at info@masswagelaw.com for a free review.