Public review process for issuance of formal Department of Labor Standards (DLS) opinion letters establishing job classification determinations.
Process and criteria of the issuance of a Prevailing Wage Opinion Letter
The Department of Labor Standards publishes prevailing wage schedules that list with relative specificity all jobs performed on public works projects. The schedules are intended to be comprehensive for all tasks performed on all public construction projects subject to M.G.L. c. 149, §§ 26 & 27, and specific enough to inform prospective bidders and awarding authorities of the prevailing wage rates that will apply to work performed on any individual project. The current schedules set wage rates for approximately 340 different categories of workers.
To ensure uniform application of rates where circumstances may leave uncertainty as to the appropriate wage, the Director may, as set out below, issue a formal Opinion Letter to determine or clarify the rate or rates on the prevailing wage schedules that should apply to a particular type of work.
Questions regarding proper wage rates or job classification may be addressed by calling the Prevailing Wage Program at (617) 626-6953. Inquiries as to the proper application of existing classifications are usually answered the same day. DLS will also generally provide written guidance by email to assist awarding authorities, contractors and prospective bidders in applying existing classifications to specific projects.
Circumstances Justifying Issuance of an Opinion Letter: DLS may issue an opinion letter under the following circumstances
- DLS receives a request for a classification determination from an interested party in circumstances where there has not been a prior determination, or where, in the opinion of DLS, the existing guidance is unclear, contradictory, or no longer of use; or
- DLS itself recognizes gaps or inadequacies in its existing guidance and proposes to address such gaps or inadequacies.[1]
Framing the question: At the outset of the Opinion Letter process, DLS will gather information necessary to describe in clear and simple terms the work to be classified and to identify the parties who may reasonably be expected to have an interest in the matter. To do so, DLS may obtain job specifications, design plans, or other descriptions and depictions of the work.
Matter Under Review: DLS will notify by email those parties that may reasonably be expected to have an interest or stake in a specific job classification that is under review. Parties that DLS will normally notify of the review process include contractors and contractor associations, trade unions, trade associations, and, occasionally, awarding authorities. Additionally, anyone wishing to receive email notifications pertaining to these matters may notify DLS and be included on the “Interested Parties List” maintained by the Department. DLS will also post notice on its website to alert the public of all matters under review.
Public hearing: DLS will schedule an informal public hearing to receive public comment to determine the most nearly comparable classification under which it should set the rate for the work under review.
Notice of hearing: DLS will post notice of a hearing on the DLS website at least one week prior to the time of the hearing. Notice will be printed in a legible, easily understandable format and will contain the date, time, and place of the hearing and a description of the jobs for which classification determinations will be considered. Notice will also clearly state that interested parties will be given an opportunity to present oral or written testimony relevant to the classification under consideration at the hearing. Notice of the hearing will be given to the Attorney General’s Fair Labor Division, the DLS ‘Interested Parties List,’ and those entities or persons that may reasonably be expected to have an interest or stake in a specific job classification, including contractors, contractor associations, competing unions, trade associations, and awarding authorities.
Location of hearing: Unless a different location is set forth in the Notice of Hearing, classification hearings will take place either remotely or in person at the offices of the Department of Labor Standards at 19 Staniford Street, 2nd Floor, Boston, MA 02114.
Moderator: The Director or designee will act as Chair of the hearing.
Rules of procedure: The hearing will be informal and basic rules of administrative procedure will be observed. Those providing evidence or testimony will address all comments to the Chair. Interruptions of testimony and cross-examination will not be permitted, except by the Chair.
Recordings: DLS will record the hearing by electronic means.
Written and oral testimony: DLS will consider all relevant evidence presented at the hearing or in any additional submittals, including but not limited to: testimony of persons with knowledge and expertise, provisions of CBAs that address the work at issue, standards of relevant professional licensing authorities, pertinent documents and/or photographs, evidence of current practices (union and non-union), and policies in other jurisdictions.
Public records: Documents and other exhibits, such as photographs, blueprints, and job specifications introduced at the hearing or submitted in connection with the classification determination, along with the digital recording of the hearing, will be part of the official record of the session and will be public records of DLS for the purposes of M.G.L. c. 66, §. 10.
Additional submittals: After the hearing DLS may, in its discretion, accept additional materials for supplemental or rebuttal purposes. The Director will set a deadline for such submittals that will not be shorter than 24 hours. These additional materials must directly pertain to the classification issue at hand. Irrelevant material will not be considered.
Published Draft: Within five business days of the deadline established for the submittal of supplementary materials, DLS will post a draft Opinion Letter on its website. DLS will accept comments and feedback on the draft for a designated period of time that will not be shorter than 48 hours.
Final classification determination: Following the close of the comment period and after consideration of any comments received, DLS will issue its final classification determination, in an Opinion Letter. Opinion Letters will apply only prospectively unless they expressly state otherwise.
While DLS will endeavor to classify a specific type of work into a single category and rate, it recognizes that there may be unusual situations where, due to the ever-evolving nature of the construction industry, changes in technology, differing practices in the relevant community, overlapping, and unresolved assertions of jurisdiction in collective bargaining agreements, a lack of clear, objective standards for applying one classification rather than another, or other reasons particular to the specific task or undertaking at issue in the review, work might not fit perfectly into a single category. In those instances, DLS may classify the work in more than one category. Where DLS classifies a specific type of work as belonging to more than one classification, contractors must pay one of the applicable wage rates as classified by DLS.
Website: All final Opinion Letters will be posted on the DLS website, incorporated in the Topical Index, and emailed to the DLS ‘Interested Parties List’ and the Attorney General’s Fair Labor Division.
[1] In an emergency, DLS may make a limited project-specific determination to address the “emergency” and then schedule a full process for review prior to setting any precedent. Application of any emergency determination will be limited to the specific project at issue in the determination.
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