On prevailing wage projects, employees are paid for the different trade work they do by the rate for that trade. Sometimes, employees work in more than one classification (e.g. Carpenter and Laborer). These lines of demarcations are tricky sometimes, especially in situations where work in one trade might follow closely on the work of another. The danger is that if the employer does not properly account for these various trades, significant liability will follow.
There are but few general principles that can be stated. The only “general” rule that stands out is that it remains always incumbent upon the employer who utilizes employees in more than one classification to ensure that those employees are properly paid for the various types of work performed and for the hours such work was performed.
As far as what principles govern various questions, it is clear an employer must inquire into or research the prevailing practices in the particular locale, understanding that even for the same types of work, a county in Florida may have different trade jurisdictions than one in Michigan. The Administrative Review Board (ARB) (the adjudicative body for Davis-Bacon Act issues and suits) addressed the issue of the applicability of area prevailing practices many years ago. The Board found that where Wage Schedules reflect union rates as prevailing, then work that may be disputed belongs exclusively to one union over another under the local area practice. The ARB continues to adhere to this principle to determine proper assignment of disputed DBA work. In fact, there is an almost obsessive focus on the area practice of the unions that are involved.
Although area practice predominates, the cases do suggest some lines of demarcation, especially where work in one trade “bleeds” into another or overlaps with a different trade. For example, in one case, the evidence showed that the Employer tried to ensure that Laborers would not be using sheet metal tools, thereby performing sheet metal work, but there were times when the workers would pick up and use tools for the Sheet Metal trade; the foreman did not intervene and either order the men to stop using the tools or ensure that they were paid for the proper trade. Interestingly, there were occasions when the workers only “sporadically” used the sheet metal tools, but the ARB refused to find any kind of de minimis standard, ruling that the correct rate (i.e. Sheet Metal) had to be paid.
Temporal proximity is also a very important factor. Where a worker performs work in one trade in the morning, then switches after lunch to another trade, that worker is (obviously) splitting his time, unless the work is integrally related, which is unlikely. If the “additional” work is performed very soon after the work in the first classification, then an employer who splits the classifications may have a problem, resulting in the higher rate being ordered to be paid. In other words, if the other (e.g. lower-rated) work is related directly to the trade in chief, the time would be paid at the higher rate, as integral to the primary job.
These are intensely fact specific issues that are not amenable to the setting of general rules. However, there are steps that can be taken to enable a Company to proactively gauge when there is a need for a split classification and, of equal import, what that “other” classification should be. The first is to put some burden on the workers themselves, by developing a self-reporting system for the men themselves to report their hours and, in their belief, the trade and have them certify that time and the trade. It is also possible to seek USDOL guidance on jurisdictional questions, as they exist or arise.
Remember, the DOL is watching…