Mass-Peculiarities: An Employers Guide to Wage & Hour Law in the Bay State 2022 Edition

© 2022 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2022 ed. | 67 Massachusetts sets distinct prevailing wage rates for public construction work in each municipality and requires the “awarding authority” for the contract to obtain a list of applicable rates from the DLS before the project begins. 374 Those rates—which are individualized for each type of job (including type of equipment being operated) that could potentially be needed on the project— must then become a part of the contract. 375 The DLS is required to look to the rates established in collective bargaining agreements or other understandings between employers and organized labor for the type of work performed in setting prevailing wage rates (or to private agreements, if no such collective bargaining agreements exist). 376 Courts give effect to the DLS’s rate-setting unless it is found arbitrary or capricious. 377 Although the statute requires that awarding authorities provide contractors with prevailing wage schedules issued by DLS, the Massachusetts Appeals Court recently held that a municipality’s failure to provide the contractor with the prevailing wage schedule did not relief the contractor from its obligaton to pay its employees prevailing wage rates. 378 Under Massachusetts law, the prevailing wage rate includes certain fringe benefits. 379 Employers choosing to provide fringe benefits may take a credit against the prevailing wage rate for the amount of their benefit contributions, up to the amount established by DLS in the rate-setting process. 380 For construction work, Massachusetts law allows employers to take credit for “contributions to health/welfare, pension, annuity or supplemental unemployment insurance plans.” 381 Employers cannot take credit for the value of vacation or sick leave. 382 Employers are only required to pay their employees prevailing wages for time actually spent on a prevailing wage project, not for all hours they work. 383 Travel time may be subject to the Prevailing Wage Statute depending on the type of work being performed. 384 Waiting time— 374 M.G.L. ch. 149, § 27, 27F; see George v. Nat’l Water Main Cleaning Co. , 2013 WL 5205846, at *2 (D. Mass. Sept . 16, 2013). 375 M.G.L. ch. 149, § 27, 27F. 376 M.G.L. ch. 149, § 26 (“ in any of the towns where the works are to be const ructed, a wage rate or wage rates have been established in certain t rades and occupat ions by collect ive agreement s or understandings in the private const ruct ion indust ry between organized labor and employers, the rate or rates to be paid on said works shall not be less than the rates so established”). 377 George , 2013 WL 5205846, at *7. 378 Donis v. American Waste Servs. , 95 Mass. App. Ct . 317, 324-25 (2019). 379 Id. (Payment s by employers to health andwelfare plans, pension plans and supplementary unemployment benefit plans under collect ive bargaining agreement s or understandings between organized labor and employers shall be included for the purpose of establishing minimum wage rates as herein provided). 380 DLS, Topical Outline of Massachusetts Prevailing Wage Law , at 18 (May 2021). 381 M.G.L. ch. 149, § 27. 382 See DLS Opinion Let ter PW-2009-09 (Nov. 25, 2009) (“ [E]mployer deduct ions from prevailingwages, pursuant to c. 149, §§ 26 and 27, may not include holiday, vacat ion or sick pay.”). 383 See Teamsters Joint Council No. 10 v. Dir. of Dep’t of Labor & Workforce Dev. , 447 Mass. 100, 111 (2006). 384 George , 2013 WL 5205846, at *12 (time spent t raveling between catch basins and to/from waste collect ion facilit ies is subject to PrevailingWage Statute because it is part of 27F job site, whereas t ime spent t raveling to first catch basin at the beginning of day, and from catch basis or waste collect ion facility at end of day, is not subject to PrevailingWage Statute).