This is an issue near and dear to us at Pelton Graham, as we have long advocated for construction flaggers to receive prevailing wages. Our clients work near dangerous construction sites and are essential for ensuring the safety of pedestrians, vehicle traffic, construction workers, and construction equipment. In addition, most flaggers perform manual work in addition to flagging, such as setting up barrels and cones, assisting laborers as needed, and sweeping and cleaning debris from job sites.
However, many companies refuse to pay prevailing wage to flaggers. They may consider flaggers to be “crossing guards” or “pedestrian traffic control” workers.
Prevailing Wage Basics
If you work in the construction industry, you may know something about prevailing wages: construction workers working on public or government-funded projects must be paid a rate calling the “prevailing wage rate,” which is usually significantly higher than minimum wage. These rates are set by government state and local agencies.
Prevailing wage rates usually consist of a basic hourly rate and supplemental benefit rate, which is paid in addition to the base rate and is intended to cover benefits similar to those receive by union members, such as pension and health benefits. Prevailing wage schedules also set forth overtime and holiday pay rules, as well as pay for registered apprentices.
Several states, including New York and California, allow workers to file lawsuits in court to recover prevailing wages. Federal projects also require payment of prevailing wage, but recovering federal prevailing wages is typically more difficult. However, since federal prevailing wage projects require submission of certified payroll, the false or fraudulent or misclassified certified payrolls may potentially lay the foundation for a False Claims Act whistleblower complaint.
The New York State Department of Labor has included wage rates specific to flaggers or “traffic control personnel” who work in several trades or types of projects, such as lineman electrical work, bridge and structural steel painting and other painting work, building laborer, and heavy & highway laborer. In other words, the rates to which flaggers are entitled depends upon the type of project where they are working, whether it’s traffic control systems, painting, building work or roadwork.
These rates and categories vary county by county and are typically updated once or twice per year. In addition, the classifications may change over time.
In some instances, flaggers are paid a somewhat lower prevailing wage rate if their duties consist only of traffic control work. In our experience, flaggers are often called upon to perform laborer work.
By contrast, the New York City Comptroller schedules do not include rates set specifically for flaggers. However, since flaggers often perform laborer work and work within construction sites, they may nevertheless be entitled to prevailing wage pay as paver and roadbuilder laborers.
I’m a Flagger and Not Receiving Prevailing Wages. Now What?
Prevailing wage rules can be quite complex, and your entitlement to prevailing wages depends on your specific situation. Contact Pelton Graham with all your questions about prevailing wage pay for flaggers—or any other prevailing wage concerns.
Click to search New York state prevailing wage schedules and New York City prevailing wage schedules.