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Article 8 (Construction): Frequently Asked Questions

Payment of Wages & Supplements

Q: Are foremen or supervisors required to be paid prevailing wages when they are "working with the tools" or when they are strictly supervising the work?

A: Supervisors and/or foremen working with the tools must be paid at the prevailing rate for the classification of work being performed. When strictly overseeing workers, supervisors or foremen are not covered under Article 8 prevailing rate requirements.


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Q: Are owners of the business required to be paid the prevailing wage rate when they “work with the tools” on a job site?

A:

§          Sole proprietor/owner-operators?

§          Partnerships?

§          Corporations?

Determining the status employer/employee of each of the above is dependent upon the factual situation presented. A decision could be predicated upon one or a combination of factors. You should contact the Bureau of Public Work if you have any questions regarding these areas.


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Q: Are independent contractors excluded from coverage under Article 8?

A: Legitimate independent contractors are excluded from coverage under Article 8. The Labor Law does not define an independent contractor; however, court decisions have held that the common law tests of "master and servant" are to be applied in making a determination. Under common law tests, all factors concerning the relationship between the two parties will be taken into consideration when making a determination whether someone is an employee or an independent contractor. Possession of liability insurance or the title “DBA” does not in and of itself make a person an independent contractor.


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Q: Are “off-site” manufacturing or fabrication operations subject to the prevailing wage law?

A: The prevailing wage and supplements requirements of Section 220 of the Labor Law are not applicable to work on materials used in connection with a public work project, where such work is not performed at or about the site of the project, and is not customarily and normally performed at such site. Where a supply yard, facility or “borrow pit” is set up for a specific public work project, the construction of and all work at or in connection with the supply yard facility or borrow pit is subject to Section 220.


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Q: Are drivers hauling asphalt and/or concrete to and from portable batch plants required to be paid prevailing rates?

A: Individuals who are employed as drivers hauling asphalt and/or concrete to and from portable batch plants established for the sole purpose of supplying public work projects are required to be paid prevailing rates.


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Q: Are drivers hauling asphalt and/or concrete from existing commercial plants subject to the payment of prevailing rates?

A:

No, except when based upon the circumstances in a locality, the Bureau of Public Work determines that asphalt and concrete batch plants are as a matter of course not built to supply public work projects, investigators shall enforce the requirement that employers pay prevailing wages and supplements to drivers hauling concrete and asphalt to and from a public work project when such materials have originated in plants not more than 50 miles from such project.
As of March 1, 2002, the ONLY area in which the Bureau has established that drivers hauling asphalt and/or concrete from commercial plants to or from a public work project will be covered by a prevailing rate is Nassau and Suffolk counties on Long Island.


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Q: Are drivers delivering materials (other than asphalt and/or concrete) to a public work site subject to payment of prevailing wages?

A: Where materials or supplies other than asphalt and/or concrete are delivered to a public work site and dropped or stockpiled, the hauling, dropping and/or stockpiling of such materials is not subject to prevailing wage requirements.


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Q: Are drivers who haul away construction debris from the job site subject to the payment of prevailing rates?

A: Prevailing rates are only required for the time spent on the construction "site" unless the debris is taken to a dedicated site. In the latter instance, prevailing rates are required for all time worked.


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Q: What about the use of apprentices?

A: No employee shall be deemed to be an apprentice unless the employee is individually registered in an apprenticeship program that is duly registered with the Commissioner of Labor. (Section 220, subd 3).


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Q: How are apprentice ratios determined?

A: Apprentice ratios are determined by occupation and are outlined in the Apprenticeship Training Program established by the New York State Department of Labor and the Apprentice Program sponsor.


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Q: Can trainees or helpers or pre-apprentices be used on a public work project?

A: They can only be used if they are paid at the journeyworker rate. Only registered apprentices can be paid less than the journeyworker rates.


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Q: How may prevailing wage supplements be provided to workers?

A: Cash payment in lieu of supplements
Through irrevocable contributions to a fund, plan or program
Any combination of the above.


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Q: How is the hourly cash equivalent of supplements determined?

A: To determine the hourly cash equivalent of supplements provided to or on behalf of workers, the Department will:

  1. Divide the actual contribution or cost for providing such supplement by the total annual hours worked by the employee on both public and private work.
  2. Where proof of the total annual hours worked by the employee on both public and private work is not provided, divide the actual annual contribution or cost for providing such supplement by 2080 hours (8 hours per day x 5 days per week x 52 weeks).
  3. Where proof of the total annual hours worked by the employee on both public and private work is not provided AND proof is provided that the employee worked only seven hours per day, divide the actual annual contribution or cost for providing such supplements by 1820 hours (7 hours per day x 5 days per week x 52 weeks).

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