Employees performing work on federal, state and municipally funded construction jobs are typically entitled to compensation at no less than the “prevailing wage” rates that are deemed to be prevailing in the locality where the work is performed. New York State’s Department of Labor and New York City’s Office of the Comptroller established and regularly update prevailing wage rates based on category of employment within various counties. The New York State Department of Labor’s schedules are available here and the New York City Comptroller’s Office’s schedules may be obtained here.
In 2008, New York State’s highest court issued a decision in Cox v. NAP Const. Co., Inc., 10 N.Y.3d 592 (N.Y. Ct. of App. 2008), which held that when a contractor agrees in a written contract to pay “wages prevailing in the locality,” employees are considered third-party beneficiaries of that contract and can recover their unpaid prevailing wages. In upholding plaintiffs’ claim for unpaid prevailing wages, the Court of Appeals held that employees’ claims are not preempted by the Davis Bacon Act and that plaintiffs do not have any administrative remedies they can exhaust. After analyzing whether an employee may sue for unpaid prevailing wages, the Court of Appeals held that plaintiffs who have not been paid legally-required prevailing wages maintain a valid breach of contract claims as third-party beneficiaries of the agreements between the public entity and the contractors. Further, any attempt to require employees to return any portion of their wages constitutes an unlawful kickback.
City and state prevailing wage schedules typically require employers to pay the base prevailing wage, a significant “supplement” intended to cover retirement, healthcare and other employee benefit programs, and daily overtime, shift differentials and double-time for work performed on certain holidays. Contractors and other employers who win public works projects but do not pay their employees the legally-required prevailing wages may be prosecuted criminally.
The attorneys at Pelton & Associates PC have successfully resolved numerous unpaid prevailing wage lawsuits, on behalf of both individuals and larger classes of employees who were all similarly denied their prevailing wages. Contractors are incentivized to resolve unpaid prevailing wage claims quickly, because government regulators can prohibit contractors from performing further public works projects if they are found guilty of prevailing wage violations.
If you believe you are owed unpaid prevailing wages, contact Pelton & Associates PC to discuss your potential claim and determine how to gather information regarding: (i) the fact that the job is a public-works project; (ii) your hours of work on the job; (iii) wages paid for work on the job; (iv) any fraudulent statement or document that your employer is requiring you to sign in the event that an inspector visits the job; and (v) video or audio recordings regarding unpaid prevailing wages.