Massachusetts Prevailing Wage Law 

The Prevailing Wage (The “RATE”) in Massachusetts

Every day, all across Massachusetts, workers are cheated out of their earned wages under the prevailing wage laws in Massachusetts — especially in construction where wage theft is especially prevalent. The “Rate” is simply another name for the prevailing wage: a state mandated minimum wage rate for workers on public construction projects. This law protects workers by guaranteeing a minimum wage on public work projects. But what is the rate and when does it apply? 

What is the Prevailing Wage?

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”).

A public works project can be described as 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 provision 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.

How the Rate is Set

• The actual hourly rate is set by the Department of Labor Standards (“DLS”).  See G.L. c. 149, § 26.  A worker must be paid the applicable prevailing wage rate for each and every hour spent working on a public project. 
• It’s based primarily on collective bargaining agreements and allows for some permissible deductions such as health insurance and pension contributions.  These rates are likely higher than a regular rate of pay.  For example, as of September 1, 2020, the carpenter’s rate in Metro Boston was $79.88 per hour.  While in Springfield, the laborer’s rate was $54.38 per hour, as of December 2, 2019.  Depending on the work you do, you might be entitled to receive the rate.

When Does the Prevailing Wage Apply?

Generally, it is up to DLS to determine whether projects are subject to the prevailing wage law.  These projects are usually handled by private contractors and involve work on state, counties, or local cities and towns property.  Examples include work on: 

• Libraries
• Public or charter schools
• Police or fire stations
• Town halls
• Public universities, and other public buildings.  

They also exist when a worker drives a truck or operates equipment for a public work (such as a street-sweeping contract). As required by law, a public project’s awarding authority must request a “rate sheet” from DLS for a prospective project.  G.L. c. 149, § 26.  Upon receiving the request, DLS then issues a “rate sheet,” which outlines the different job classifications and required rates of pay for that project.  G.L. c. 149, § 27.  This information is not meant to be kept secret from you.  In fact, the rate sheet must be posted in a conspicuous location on the job site.  Id.  They are also available to download on the internet.

Common Causes of Prevailing Wage Law Violation

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.

1. Not paying public works employees the prevailing wage rate;
2. Misclassifying an employee as being in a different job than 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 or she may bring a lawsuit “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 the prevailing wage rates are usually high.

You may have a claim if:

• You are not receiving the hourly rate listed on the project’s rate sheet.
• Your job classification is incorrect.  For example, you are performing carpentry work, but are being paid the laborer’s rate.
• Improper deductions, such as tools, cell phones, gas, etc., are being made from the prevailing wage rate.

It is important to understand that the prevailing wage law applies to all public construction projects – even those you worked in the past.  However, the lookback is not endless; the statute of limitations is three years for unpaid wages.  Every day that passes, you may lose time and money off your claim.  It makes sense to take action sooner rather than later.  Get in touch with us by calling 617-338-9400 or by filling out a free case review. We evaluate cases confidentially and at no cost.

What About Overtime?

Massachusetts law has required that overtime—hours worked over 40 per week—have to be paid at 1.5 times the full prevailing wage rate, not a lower base wage preferred by the employer. See Mullally v. Waste Mgmt. of Massachusetts, Inc., 452 Mass. 526 (2008). This includes all components of the rate (base pay and fringe benefits).

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.

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

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.

Your Job Classification Determines the Rate 

The most important thing to understand is that if you are working on a public construction job in Massachusetts, your hourly rate is determined by the tasks you perform

Your rate is NOT determined by:

1. Your job title;
2. Your job description;
3. What you were hired to do;
4. What you are normally paid;
5. Union membership; or,
6. Whether you have a professional license.

Records and Transparency

By law, contractors or subcontractors awarded a public works contract must, under pain 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.

We are here to help

Fact is, employers have a strong incentive to pay less that the correct rate, and they often do. If you believe that, for example, you are being paid the laborer rate when you’re really doing other work, such as carpentry, taping or painting get in touch with us at 617-338-9400 or fill out our free case evaluation form.

Additional prevailing wage law resources