Written by Galen T. Shimoda and Justin P. Rodriguez
As a general rule of thumb, a public works project is one that involves any type of work performed on public property. Though the actual analysis is more complex and there are some exceptions to a project qualifying as a ?public works,? if you are either constructing or maintaining government or quasi-government properties, it is very likely that you are entitled to the ?prevailing wage.? This is an important determination because the prevailing wage for a particular occupation is typically much higher than what an employee would get if working on private sector projects. In some instances, this can mean a difference of over $10.00 or more in pay per hour.
But, an employee working on prevailing wage projects should know that there are other specialized protections that apply to them throughout their work day. After it has been determined that an employee is working on a public works project, there are a host of protective statutes and regulations that become triggered. What can be confusing for those not familiar with prevailing wage laws is that many of the standard rules California workers have become familiar with regarding wages and workplace conditions become modified. Indeed, the issues can become even more complicated when the individual is covered under a collective bargaining agreement (?CBA?) while also working on public works projects.
The most important thing an employee should consider is that what constitutes a prevailing wage is not a ?one size fits all? determination. Instead, the applicable prevailing wage will vary depending on job classification and where the work is performed. For example, a metal roofing installer will be paid differently depending on whether they work in Butte or Amador County. It is important to note, however, that titles are not determinative. Rather, it is the type of work an employee performs in the day that matters most. For example, just because an employer designates an employee as a Groundperson does not mean they are not entitled to Climber wages if, in fact, they are performing the work of a Climber in the tree trimming industry.
If you, as an employee, are being told that you do not have the skill to be paid prevailing wage rates for a particular classification, this is incorrect. An employer cannot pay an employee apprentice (lower) wages if certain required steps are not taken. This is so regardless of the level of skill (or alleged lack thereof) possessed by the employee. All that is required is that an employee performs the work of a particular classification. Additionally, the prevailing wage due to workers in a particular classification may increase during the project depending on whether the Department of Industrial Relations designated the increase as ?pre-determined? or not. It is, therefore, essential for employees to know what the prevailing wage rates are, so they can determine if the appropriate wage is being paid to them.
Other irregularities include the types of payments employees on public works are entitled to. In certain circumstances, employers must make Travel and Subsistence payments to their employees. This to compensate the employee for long distance travel and possible overnight accommodations that certain public works jobs may require. But, these types of payments are distinct from paying travel time and reimbursement wages.
Another glaring difference that can be encountered is that prevailing wage jobs use the ?rate in effect? method to determine the overtime rate of pay. A further exception exists to this rule, however, when the overtime hours are performed on a non-prevailing wage project. In that case, the standard ?weighted average approach will apply to determine the overtime rate of pay. It is imperative that an employee keep track of what type of work they are performing during the overtime hours. Otherwise, he or she may be forgoing wages due and owing to them.
These are only a few of the complexities surrounding prevailing wage law. In our experience the majority of violations occur in either of two situations: 1) on complex projects where employees are performing work under multiple classifications, but only being paid at one, lower rate; or 2) where there is a CBA involved. While there are some exceptions to general wage and hour law for employees covered under a CBA, unions are not quasi-legislatures and cannot exempt employees from wage and hour law protection unless specifically authorized by the legislature. Thus, just because an employee?s union representative does not take action to protect employees does not mean that the employees are not entitled to wages.
If you believe you are not receiving correct prevailing wage payments, please contact our office to have your claim evaluated.