Yesterday, a group of workers at some of the travel plazas in Connecticut, along with members of Local 32BJ of SEIU, rallied to protest “wage theft” and call for unionization of the employees who work there, including fast-food workers.

The issues the group is raising — at least that have been reported by the press —  are two-fold: That the state’s “prevailing wage” law applies to them and, under that law, they ought to be paid the “fringe rate” attached to it.

This post will not answer those questions, which are best left to a court — or a client wanting to pay attorneys’ fees for a full legal analysis.

But this rally provides the perfect opportunity to recap the prevailing wage rule in the next installment of the Employment Law Checklist Project #emplawchecklist.

The state’s prevailing wage law can be found at Conn. Gen. Stat. Secs. 31-53 and 31-53a.  There are bunch of provisions (far too numerous) but the key language is as follows in section (a):

Each contract for the construction, remodeling, refinishing, refurbishing, rehabilitation, alteration or repair of any public works project by the state or agents…shall contain the following provision: “The wages paid on an hourly basis to any person performing the work of any mechanic, laborer or worker on the work herein contracted to be done and the amount of payment or contribution paid or payable on behalf of each such person to any employee welfare fund … shall be at a rate equal to the rate customary or prevailing for the same work in the same trade or occupation in the town in which such public works project is being constructed. Any contractor who is not obligated by agreement to make payment or contribution on behalf of such persons to any such employee welfare fund shall pay to each mechanic, laborer or worker as part of such person’s wages the amount of payment or contribution for such person’s classification on each pay day.”

Scope: As noted by the Connecticut Department of Labor on its helpful website “The law applies to each contract for the construction, remodeling, refinishing, refurbishing, rehabilitation, alteration or repair of any public works project by the State or its agents, or by any political subdivision of the State.”

Anything else? Yes, there are cash thresholds to be met too.  It does not apply where the total cost of all work to be performed by all contractors and subcontractors in connection with new construction of a public works project is under $1M and it does not apply in connection with remodeling, refinishing, refurbishing, rehabilitation, alteration or repair of any public works project under $100k.  It should be noted that sometimes, the parties to a contract can also indicate that compliance with prevailing wage law is a key component of the contract that might otherwise not fall within the scope of the law. Is that what will be argued for the travel plazas? That remains to be seen.

What’s Prohibited or Required?  A bunch of things, including payment requirements, certification requirements, record-keeping requirements, and more. But at its core, if the contract is covered, workers must be paid a base rate in accordance with what the DOL has established in that particular town for that particular work.  And workers also need to be given a fringe benefit rate which may be paid in cash or benefits.

For example, let’s say a company has a contract to build a $10M publicly-financed office building in New Fairfield.  Jackhammer operators on that project would be entitled to a prevailing wage of $31.25/hour plus a fringe benefit rate of $20.84 according to the 2019 prevailing wage chart issued by the CTDOL.

Private Right of Action or Other Penalty Allowed? There are various civil, criminal and administrative penalties for violations of the prevailing wage law.  Again, the CTDOL has a good summary: “Failure to pay the prevailing rate is a crime which may be a felony depending upon the amount of unpaid wages.  Knowingly filing a false certified payroll or failure to file a certified payroll is a Class D felony for which an employer may be fined up to five thousand dollars, imprisoned for up to five years, or both.  Disregarding obligations under Conn. Gen. Stat. Section 31-53 may result in an administrative debarment which may preclude any firm, corporation, partnership or association in which such person or firms have an interest from receiving an award of a contract until a period of up to three years have elapsed.  Additionally, civil penalties of $300 per violation of law may also be assessed upon the employer.”

Any Practical Steps Employers Can Take? If your work involves the state of Connecticut and you are anywhere close to doing construction or rehab or the like, be sure to consult with legal counsel; prevailing wage laws are notoriously challenging to comply with and add a level of complexity unlike anything else in employment law.  And don’t forget there is a federal counterpart to this — the Davis-Bacon Act.

Any Other Interesting Information or Background? Prevailing wage laws get changed a bunch to meet various circumstances. How so? Look at Conn. Gen. Stat. Sec. 31-53(h)(2).  It says that the prevailing wage law does not apply to work on a public works project “funded in whole or in part by any private bequest that is greater than nine million dollars but less than twelve million dollars for a municipality in New Haven County with a population of not less than twelve thousand and not more than thirteen thousand…”

Huh? This came about during the special session of the legislature in 2017 and was buried in Section 567.  If you’re curious, only Oxford or Derby have between 12-13k in population.  If anyone knows exactly what this particular project is, let me know.

But for employers, it’s always worth reading the fine print.