The Department of Labor Standards (“DLS”) creates an extensive list of job classifications and their corresponding rate of wages. An awarding authority, such as a municipality, who begins a public works projects submits to the Director of DLS a list of jobs to be employed on the project. Typically these jobs fit neatly into a job classification. Nonetheless, workers often times perform duties which complicate the classification.

One such difficulty arises for workers who deliver materials not used in road construction, subsequently falling outside the classification requiring a prevailing wage. In a public works project, when those same workers are in some way “engaged in construction activity” they still may be entitled to the prevailing wage.

Massachusetts courts have interpreted “engaged in construction activity” to require that there be a “significant nexus between the employee’s work and the site of the construction project.” For such an ambiguity as to job title and actual work performed, if the employee is required to perform any type of labor with regard to the public works construction project, that employee most likely should be paid the prevailing wage.

It is important for both employer and employee to have a basic understanding of the classification process. An improper classification can result in heavy fines. Employees have a right to bring a lawsuit with the Attorney General and if successful may require the employer to pay treble damages for lost wages.

For more information about the Department of Labor Standards Classification please see their annual topical outlines or contact Attorney Shafran.

http://www.mass.gov/lwd/docs/dos/prevaling-wage/interim-topical-outline.pdf