Many factors make it tricky for New York truck and delivery drivers to determine what pay they are entitled to receive. We previously discussed a few of the challenges of driver classification, focusing on gig services, like Uber and Lyft, as well as drivers for more traditional delivery services like Fed Ex.
This post will focus on a question that comes up for us frequently: are drivers who work at public works job sites entitled to receive prevailing wages for part or all of their work?
For a refresher on prevailing wage, see our posts on prevailing wage generally and prevailing wage in New York. In short: construction and similar projects that are funded at least in part by the government and are intended to benefit the public are known as “public works projects.” New York recently expanded the definition of Public Works Projects to encompass more construction projects funded in part by government entities.
Workers who perform construction and other physical work on Public Works Projects, as well as some building service workers on government-funded sites and buildings, must be paid a wage rate that is set by the government, which is called the “prevailing wage.” The prevailing wage differs by location and job duties or trades. There is a wide range of jobs that are eligible for payment of prevailing wages, ranging from traditional construction workers to safety flaggers, certain security guards, and certain technicians on HVAC, fire, and alarm systems.
The law is clear that drivers must be paid prevailing wages for any and all physical labor performed on Public Works Projects, such as assisting laborers in hauling materials and equipment and sweeping debris. When it comes to the work of driving materials to and from New York Public Works Projects, the law is, unfortunately, less clear and much more complicated. Some of this work is eligible for payment of prevailing wages, while other duties are not eligible.
We’ve created a checklist summarizing the rules and regulations from the New York State Department of Labor. The New York State Department of Labor has divided truck driver duties into three basic categories: delivery of materials and supplies, removal of materials, and fuel delivery. Some work in each category is eligible for payment of prevailing wages.
Delivery of Materials: most deliveries of materials and supply are not eligible for prevailing wages except for specific asphalt and concrete deliveries.
- Delivery of Materials (except for asphalt and concrete in Nassau and Suffolk counties): NO PREVAILING WAGE for hauling or dropping off materials and supplies.
- Delivery of Asphalt, Concrete from Commercial Plants in Nassau and Suffolk Counties: PREVAILING WAGES ONLY for hauling asphalt or concrete from commercial plants to or from a Public Works Project not more than 50 miles away. In those instances, drivers must be paid prevailing wages for all time and work spent between the plant and the Public Works Project through final delivery. Drivers are not eligible for prevailing wages for time and work driving to or from any other, non-Public Works Project location.
- Delivery of Asphalt, Concrete from Commercial Plants NOT within Nassau, Suffolk Counties: NO PREVAILING WAGE for delivery of asphalt or concrete from commercial plants.
- Delivery of Asphalt, Concrete from Portable Batch Plants: PREVAILING WAGE REQUIRED for hauling asphalt or concrete to and from portable batch plants that are established solely for supplying Public Works Projects.
- Aggregate Supply Construction Materials: As of February 2022, PREVAILING WAGE REQUIRED for all time related to delivery and hauling of “aggregate supply construction materials,” such as sand, rock, gravel, fill, and similar materials. This includes loading and unloading time and waiting time at the Public Works Project site as well as delivery and hauling to and from the site.
Removal of Materials: Prevailing Wage must be paid for waiting time. Under certain circumstances, travel time may also be prevailing wage eligible.
- Waiting Time: PREVAILING WAGE REQUIRED for time spent awaiting loading of truck with material to be removed (debris), including if driver is told to wait off-site.
- Debris Hauling: PREVAILING WAGE REQUIRED only if the Public Works Contract calls for removal of debris to a dedicated site, in which case all time from loading, traveling to unloading is PW eligible
- Materials Transfer: PREVAILING WAGE REQUIRED only the removed material is transferred to a dedicated site for storage, disposal or transfer. In that case, prevailing wage must be paid for work at the dedicated site and travel time to and from Public Works Project site..
Fuel Delivery: Fuel delivery is eligible for prevailing wages under New York Labor Law Article 9 (building services) public contracts but not Article 8 (construction) public works projects.
- Article 8 (Construction): NO PREVAILING WAGE to drivers for delivery of fuel, but laborers who perform on-site fueling are eligible for prevailing wages.
- Article 9 (Building Services): PREVAILING REQUIRED for time spent on-site delivering fuel, plus any travel time between multiple Public Works sites in a single day. However, once a driver leaves a public site for a private site, prevailing wages are no longer required until delivery begins for the next public site.
While these categories may cover many drivers who work on Public Works Projects, they do not give clear answers in every possible situation. For example, some drivers may primarily deliver equipment, tools, and/or laborers to Public Works Projects, and drivers are often laborers themselves.
If you are a driver and you think you may be owed prevailing wages, you should speak with an attorney experienced in this complex and evolving area of the law. Pelton Graham LLC has years of experience litigating prevailing wage cases and achieving quality resolutions for our clients. We are always happy to discuss your situation, even if you are not sure what your legal rights are and even if your employer has told you that you are not eligible to be paid prevailing wages.
Photo by Tima Miroshnichenko: https://www.pexels.com/photo/man-person-sunglasses-people-6169127/
Albany says they only started enforcing this after labor day and do not intend on paying anything prior to that date.