Prevailing Wage Laws for Flaggers

In recent years, there have been significant changes in the prevailing wage laws affecting construction flaggers in New York. These changes aim to ensure that flaggers, who play a crucial role in maintaining safety on construction sites, receive fair and adequate compensation for their work.

Developments in Case Law

Over the last approximately 10 years, dozens of private lawsuits have been brought by flaggers seeking unpaid prevailing wages for their work on public works projects in New York. In addition, the U.S. Department of Labor has brought several enforcement actions against contractors for failing to pay flaggers prevailing wages for their work on federally-funded public works projects. While most of the lawsuits have resulted in settlements, some of the contractors have chosen to fight the determination that construction flaggers are entitled to prevailing wages. One such lawsuit where the contractor chose not to compensate the flaggers at prevailing wages, even after the U.S. Department of Labor determined that such workers were entitled to prevailing wages, is called Herman v. Judlau Contracting Inc. This case involved a dispute over whether flaggers should be classified as laborers who receive prevailing wages for their work on public works projects or whether the flaggers fall outside of the protections of the prevailing wage law. Ultimately, after years of litigation, the Court determined that despite Judlau classifying these workers as “crossing guards,” they were performing work as construction safety flaggers which, based on the NYC Comptroller’s long-standing guidance, qualified them to be paid at prevailing wage rates as laborers. The decision in this case reinforced the importance of proper classification and compensation for flaggers under prevailing wage laws. Since the ruling, the New York City Comptroller’s office has updated its guidance regarding the prevailing wage requirements for flaggers on public works projects to be consistent with the guidance of the New York State Department of Labor and U.S. Department of Labor, and has revised its prevailing wage schedules, introducing a separate category for flaggers for the first time1. These changes bring clarity to the compensation requirements for flaggers working on public works projects in New York City.

Impact on Flaggers’ Compensation

• Broader Eligibility: Previously, only “safety flagging” work qualified for prevailing wages in NYC. The new schedules eliminate this distinction, making all flaggers eligible for prevailing wage rates1.
• Increased wages: The new schedules provide clarity on required wage rates for all flaggers, potentially leading to higher compensation1.
• Enhanced benefits: Along with wages, the prevailing wage schedules include provisions for benefits, improving overall compensation packages1 to non-union workers
• Retroactive Pay: In some cases, like the Judlau case, flaggers may be entitled to recover prevailing wages for past work4.

What to Do If You Think You’re Owed Prevailing Wages

If you’re a flagger in New York and believe you should be receiving prevailing wages for your work on public projects, it’s crucial to take action:

1. Review your pay stubs and compare your wages to the prevailing wage schedules for your area.
2. Document your work details, including project locations, dates, and duties performed.
3. Contact an experienced prevailing wage attorney: Our team at Pelton Graham have years of experience representing construction workers, including flaggers, and can help you understand your rights and pursue any wages you may be owed.
4. Lastly, prepare for your meeting with an employment attorney about unpaid prevailing wages.

Remember, prevailing wage laws can be complex, and employers may sometimes misclassify workers to avoid paying higher wages. An experienced attorney can help navigate these complexities and fight for your workplace rights.