Notice of Prevailing Wage Classification
The Department of Labor Standards (DLS) is required to set prevailing wage schedules for public works construction projects based on “collective agreements or understandings in the private construction industry between organized labor and employers.” G.L. c. 149, § 26. DLS also looks to these agreements and understandings to determine the appropriate job classifications for the type of work in question. For purposes of G.L. c. 149, §§ 26 and 27, which comprise Massachusetts’ prevailing wage law for public works projects performed within the Commonwealth, the job classification applicable for the service and repair (including battery replacement) of electrical generators that are part of a public building, and not portable, is Electrician.
Applicability of prevailing wage to the redevelopment of State- or Federally-aided housing projects
Effective immediately, all construction, reconstruction, alteration, installation, demolition, maintenance, or repair related to the redevelopment of state-aided or federally-aided public housing projects where the land, buildings or structures associated with the housing project have been conveyed or transferred to an affiliated non-profit or private entity for purposes of completing the redevelopment shall be subject to sections 26 to 27F, inclusive, and section 29 of chapter 149. Rates and updates for these projects should be requested from the Department of Labor Standards.
Notice to awarding authorities for projects funded through the Inflation Reduction Act (IRA)
All public works construction projects are subject to the provisions of the Prevailing Wage Act (G.L. c. 149, §§ 26 & 27), which establishes wage rates to be paid to employees in certain trades on public construction projects. As with any public works construction project, public works construction projects subject to the 2022 Inflation Reduction Act (IRA) must meet the relevant prevailing wage requirements. Persons awarding contracts for public works construction projects that are subject to the IRA must comply with the applicable provisions of both the Federal Davis Bacon Act and the Massachusetts Prevailing Wage Act. Awarding authorities with projects subject to the IRA must obtain prevailing wage rate schedules from the Massachusetts Department of Labor Standards and from the United States Department of Labor and must incorporate both sets of wage rates in the contract and require that the higher of the two rates be paid for each trade.
Notice to awarding authorities for projects funded through the American Rescue Plan Act
All public works construction projects are subject to the provisions of the Prevailing Wage Act (G.L. c. 149, §§ 26 & 27), which establishes wage rates to be paid to employees in certain trades on public construction projects. As with any public works construction project, public works construction projects funded through the 2021 Federal American Rescue Plan Act (“ARPA”), which provides relief to address the continued impact of the COVID-19 pandemic, are subject to prevailing wage. Persons awarding contracts for public works construction projects that are funded in whole or in part by ARPA must comply with the provisions of the Massachusetts Prevailing Wage Act. Awarding authorities utilizing ARPA as a funding source must obtain prevailing wage rate schedules from the Massachusetts Department of Labor Standards and must incorporate these wage rates in the contract and require that these two rates be paid for each trade.
Secondary Hauling of Municipal Solid Waste and Recycling
In accordance with the Superior Court’s decision in Franklin County Solid Waste Mgmt. Dist. v. Department of Labor Standards, the Department will calculate secondary hauling rates for waste and recycling on public works projects as follows: The Department will use the established wage rates from the applicable collective bargaining agreement (“CBA”) for the same type of work. If the Department is unable to identify an applicable or reasonably comparable CBA in the same geographic region, the Department will apply the wage rates paid to municipal employees who perform the same type of work in the same geographic region.
Changes to weekly payroll requirements for contractors
On March 26, 2014, amendments made to the state prevailing wage law, M.G.L. c. 149, sec. 27B, affect the certified payroll records that contractors and subcontractors must submit to an awarding authority. Effective June 24, 2014, contractors and subcontractors must submit weekly payroll records: (1) by first class mail, or (2) by electronic mail. Furthermore, every weekly submittal of payroll records must contain a signed statement by the employer that indicates (1) that the records are correct, and (2) the rate of wages that each worker receives.
In an effort to aid contractor compliance, DLS has updated its model Weekly Statement of Compliance, as well as its Massachusetts Weekly Certified Payroll Report Form.
Below is M.G.L. s. 149, sec. 27B showing the amended language which becomes effective June 24, 2014:
“Section 27B. Every contractor, subcontractor or public body engaged in said public works project by an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth or county, or municipality or any subdivision thereof to which sections twenty-seven and twenty-seven-A apply shall keep a true and accurate record of all mechanics and apprentices, teamsters, chauffeurs and laborers employed thereon, showing the name, address and occupational classification of each such employee on said works, and the hours worked by, and the wages paid to, each such employee, and shall submit weekly to the awarding authority by mail, first class postage prepaid, or by electronic mail, certified payroll records that shall consist of a complete copy of those records accompanied by a statement signed by the employer that indicates (1) the records are correct; and (2) the rate of wages paid to each performing the work of mechanic, apprentice, teamsters, chauffeurs, and laborers, and shall promptly furnish to the attorney general or his representative, upon his request, a copy of said record, signed by the employer or his authorized agent under the penalties of perjury. For every week in which an apprentice is employed by a contractor, subcontractor or public body subject to this section, a photocopy of the apprentice’s apprentice identification card, issued pursuant to section 11W of chapter 23, shall be attached to the records submitted under this section. Such records shall be open to inspection by any authorized representative of the department at any reasonable time, and as often as may be necessary. Every contractor and subcontractor required to keep such a record shall submit a copy of said record to the awarding authority directly on a weekly basis.
Two new opinion letters issued in 2014.
- One addresses the PW-03-13-14.
- The other addresses the PW-Opinion-05-19-14.
DLS opinion letters are not subject to direct court appeal
The Massachusetts Appeals Court has found that an employer may not seek court review of a DLS opinion letter on job classification or wage rate without first appealing the determination through the administrative process. Yankee Technology, Inc. v. Commissioner of the Division of Occupational Safety, 13-P-432 (2/5/14). The Appeals Court affirmed the Superior Court’s decision that certiorari and declaratory judgment are not available when bypassing M.G.L. c. 149, section 27A. The DLS (formerly DOS) sets prevailing wages for employees engaged in the construction of public works by reference to collective bargaining agreements and understandings in the construction industry. Section 27A describes how to appeal the DLS classification or rate determination, by serving notice of appeal within five days of the first advertisement or call for bids. The DLS issued three opinion letters regarding certain tasks performed by employees of Yankee Technology, Inc. Yankee never sought appeal under section 27A, but sought declaratory and certiorari relief in Superior Court. The Appeals Court upheld the finding of the Superior Court that the opinion letters did not arise from a “judicial or quasi-judicial proceeding,” therefore, certiorari relief was unavailable. Since Yankee had bypassed the administrative remedy under section 27A, neither certiorari nor declaratory relief was available.
This decision follows two other recent decisions by the Massachusetts Supreme Judicial Court and Superior Court that declined to address an employer’s challenge to the binding effect of DLS opinion letters.
Revised format for prevailing wage schedules
Effective November 18, 2011, the Department of Labor Standards (DLS) will commence to issue prevailing wage schedules for public works projects in a format which will reflect the breakdown of the total wage rates by displaying the base wage and benefit contributions for each job classification. The revised schedules will also display the trade organization from which the wage rate is derived. There is no change in the method by which the wage rates are calculated – only the format has changed. DLS has adopted this new format to increase transparency in the rate setting process.
The prevailing wage statute provides that payments by employers to health and welfare plans, pension plans and supplementary unemployment benefit plans under collective bargaining agreements or understandings between organized labor and employers be included in the wage rates. M.G.L. c. 149 §§ 26 and 27. Currently, the DLS wage schedules reflect only the total wage rate for each job classification.
Notice to contractors and awarding authorities regarding calculation of apprentice wage rates
Issued July 13, 2010. Pursuant to Division of Occupational Safety (DOS) Opinion Letter PW-2010-03-03.16.10, DLS opinion letter, effective March 18, 2010, the prevailing wage rates for apprentices are published on the rates sheets based upon the actual wages and benefits paid to apprentices under applicable collective bargaining agreements, as required by the Massachusetts prevailing wage law. M.G.L. c. 149, §§ 26, 27 et. seq. In many cases, collective bargaining agreements provide that apprentices in the first year(s) of the apprentice program receive fewer benefits than journeymen and apprentices in later years of the program. The published rates include only those benefits that the apprentice at each step is entitled to receive under the applicable collective bargaining agreement.
All contractors and subcontractors are required to pay apprentices not less than the rate published. They may deduct from the published rate the hourly value of any allowable benefits that they actually contribute on behalf of the apprentice and pay the apprentice the remainder in wages.
Notice to awarding authorities regarding rate sheets for trash hauling rates
Please note that prevailing wage rates for trash/recycling disposal, issued by the Department of Labor Standards (DLS) pursuant to M.G.L. c. 149 §27F, shall remain in effect for the duration of the contract term. However, if the prevailing wage rate sheet issued does not contain wage rates that cover the entire contract term, the Awarding Authority has the legal obligation to request updated rate sheets from DLS and provide them to the contractor(s) to ensure the correct rates are being paid throughout the duration of the contract. Pursuant to Rego v. Allied Waste Services of Massachusetts, Mass. Appeals court No. 2021-P-0227 (2022), employers have an affirmative obligation to pay the prevailing wage rates in effect for each contract year. Any exercise of an option to renew or extend the contract term will require a new schedule of rates. Please call DLS at 617-626-6976 if you have any questions regarding this Notice. See Rego v. Allied Waste Services of Massachusetts, Mass. Appeals court No. 2021-P-0227 (2022).
Notice concerning the removal and application of paint on bridges and tanks
Issued: December 23rd, 2009. All awarding authorities and contractors are hereby notified that the “painter (bridges/tanks) occupational classification shall be used for the following tasks on public works construction projects covered by the prevailing wage law, M.G.L. c. 149, §§ 26 to 27D
Painter (bridges/tanks)
“Tanks,” for the purposes of the classification “painter (bridges/tanks), are defined as “steel above-ground water storage tanks.”
- The erection and dismantling of scaffolding, rigging and containment for bridge work and tank painting operations.
- Surface preparation, including removal of all types of paint on bridges and tanks.
- The application of paint on bridges and tanks.
- The clean-up of debris resulting from paint removal operations on bridges and tanks.
The application or removal of paint on or from other types of tanks, is classified as “painter/taper (brush/new)”, for new tanks, or “painter/taper (brush/repaint) for existing tanks.
Awarding authorities are encouraged to make this notice available to all contractors who may be engaged in projects involving the removal or application of paint on bridges and tanks.
Notice of prevailing wage classification
For the purposes of M.G.L. c. 149, sections 26 and 27, which comprise the Massachusetts prevailing wage law for public works projects performed within the Commonwealth, the following job classifications are applicable for asbestos removal:
“Asbestos worker (pipes and tanks)” is the proper classification for the removal of asbestos on piping, fittings, valves, boilers, ducts, flues, tanks, vats, or equipment for the purposes of thermal control, including HVAC systems, except in instances where the piping, fittings, valves, boilers, ducts, flues, tanks, vats, and equipment for the purposes of thermal controls, are being demolished, in which case the applicable wage rate would be that of a “laborer hazardous waste/asbestos remover.”
“Laborer hazardous waste/asbestos remover” is the proper classification for the removal of asbestos from the structural part of a building including all asbestos removal on piping, fittings, valves, boilers, ducts, flues, tanks, vats, or equipment for the purposes of thermal controls (including HVAC systems) when such equipment or systems will be demolished.
Annual updates to multi-year public construction contracts
Prevailing wage law amended 8/8/08. On August 8, 2008, the state prevailing wage law, M.G.L. c. 149, §27, was amended to require annual updates to prevailing wage schedules for all public construction projects lasting longer than one year.
- Awarding authorities are required to request these wage schedules from the Department of Labor Standards (DLS) on a timely basis.
- Contractors are required to obtain the wage schedules from awarding authorities, and to pay no less than these rates to covered workers.
What contracts need annual updates?
This law applies to all public construction contracts (contracts subject to M.G.L. c. 149, §27) bid on or after August 8, 2008. This law does not affect contracts bid prior to August 8, 2008.
What if the awarding authority estimates that the project will last less than one year, but the work extends into a second contract year?
The awarding authority must request an annual update, and the contractor must obtain and pay those rates.
When must awarding authorities request these updates?
Awarding authorities should request these updates no later than two weeks before the anniversary of the date the contract was executed by the awarding authority and the general contractor. For example, if a town enters into a three-year contract for road repairs on November 1, 2008, the town must request an updated wage schedule before November 1, 2009, and November 1, 2010. This request should be made by at least October 15 of each year to allow for processing time. The effective date for the new rates will be the anniversary date of the contract, regardless of date of issuance on the schedule. In this case, the rates would go into effect on November 1, 2009 and November 1, 2010, even if the schedules were issued by DLS on October 25 of each year.
What are contractors obligated to do?
General contractors must obtain these updated schedules from awarding authorities, and general and sub-contractors must pay no less than these rates to covered workers. Update schedules must also be posted in a conspicuous place at the worksite during the life of the contract. Failure to comply with the prevailing wage law may result in civil or criminal penalties and/or sanctions under M.G.L. c. 149, §27C.
Drivers who haul bituminous concrete (asphalt)
Issued September 1, 2006. The Massachusetts Supreme Judicial Court recently affirmed that drivers who haul bituminous concrete to public construction projects are not covered by the Prevailing Wage Law while off-site, including time spent over-the-road and picking-up materials. These drivers are covered by the Prevailing Wage Law only while on-site at the public construction project.
In Teamsters Joint Council No. 10 v. Department of Labor, et al., 447 Mass. 100 (2006), the SJC upheld a 2001 administrative decision limiting the applicability of prevailing wage rates to the time bituminous drivers spend at the public construction site. This most recent decision of the SJC followed a 1989 ruling that had upheld an earlier Department of Labor (and Industries’) policy that had deemed this category of drivers to be “teamsters” under the law and, therefore, entitled to prevailing wage rates. See Construction Industries of Massachusetts v. Commissioner of Labor and Industries, 406 Mass. 162 (1989). However, the earlier court case had left open the question of whether this entitled these bituminous drivers to prevailing wage rates for their over-the-road time as well as their on-site time. This most recent decision has now answered that question.
All of the requirements of the prevailing wage law, including certified weekly payroll requirements, apply to bituminous drivers for all time spent at the public construction site.
Drivers who haul ready-mix concrete (cement)
Issued September 1, 2006. Drivers who haul ready-mix concrete to public construction projects are not covered by the prevailing wage law while off-site, including time spent over-the-road and picking-up materials. These drivers are covered by the prevailing wage law while on-site at the public construction project. This applicability determination was established by a 2001 administrative decision of DLS.
All of the requirements of the prevailing wage law, including certified weekly payroll requirements, apply to ready-mix drivers for all time spent at the public construction site.
Annual Updates to Multi-Year Public Construction Contracts
Prevailing Wage Law Amended 8/8/08
Annual Updates to Multi-Year Public Construction Contracts:
On August 8, 2008, the state prevailing wage law, M.G.L. c. 149, §27, was amended to require annual updates to prevailing wage schedules for all public construction projects lasting longer than one year.
- Awarding authorities are required to request these wage schedules from the Department of Labor Standards (DLS) on a timely basis.
- Contractors are required to obtain the wage schedules from awarding authorities, and to pay no less than these rates to covered workers.
FAQs:
Q. What contracts need annual updates?
A. This law applies to all public construction contracts (contracts subject to M.G.L. c. 149, §27) bid on or after August 8, 2008. This law does not affect contracts bid prior to August 8, 2008.
Q. What if the awarding authority estimates that the project will last less than one year, but the work extends into a second contract year?
A. The awarding authority must request an annual update, and the contractor must obtain and pay those rates.
Q. When must awarding authorities request these updates?
A. Awarding authorities should request these updates no later than two weeks before the anniversary of the date the contract was executed by the awarding authority and the general contractor. For example, if a town enters into a three-year contract for road repairs on November 1, 2008, the town must request an updated wage schedule before November 1, 2009, and November 1, 2010. This request should be made by at least October 15 of each year to allow for processing time. The effective date for the new rates will be the anniversary date of the contract, regardless of date of issuance on the schedule. In this case, the rates would go into effect on November 1, 2009 and November 1, 2010, even if the schedules were issued by DOS on October 25 of each year.
Q. What are contractors obligated to do?
A. General Contractors must obtain these updated schedules from awarding authorities, and general and sub-contractors must pay no less than these rates to covered workers. Update schedules must also be posted in a conspicuous place at the worksite during the life of the contract. Failure to comply with the prevailing wage law may result in civil or criminal penalties and/or sanctions under M.G.L. c. 149, §27C.