New York State Department of Labor

The world of prevailing wage law is a complex and nuanced one. It is, in truth, a niche within a niche of the wage-hour world. I have handled almost one hundred prevailing wage audits and lawsuits and still am learning things about how these laws are interpreted. In an interesting twist, the New York State Court of Appeals has examined the issue of when apprentice wages can (and cannot) be paid on prevailing wage projects. The case is entitled International Union of Painters & Allied Trades, Dist. Council No. 4 v. New York State Dept. of Labor and issued from the Court of Appeals of the State of New York.

The Court held (in agreement with the NYS DOL) that apprentices who are not discharging the job functions of their trade must be paid the higher, journeyman wages.  The vote was 6-1.   The Court stated “we uphold the statute-based policy of the New York State Department of Labor that the payment of apprentice wages on public work projects to apprentices who are performing tasks that are within the respective trade classifications of the approved apprenticeship programs in which they are enrolled.”

The Union sponsored a DOL-approved glazier apprenticeship program, but during their work as apprentice glaziers, these workers may have to discharge some Ironworker job duties.  The plaintiffs sued, asking for a judgment that as long as the tasks were performed under the aegis of the apprentice program, it did not matter that they were doing other tasks covered by other trade jurisdictions.  The DOL took the view that this work demanded payment at that craft’s rate (a much higher rate).

The lower court dismissed the suit but an appellate tribunal revived it, holding that “glazing contractors may compensate apprentices registered and enrolled in the DC 4 Glazier Apprenticeship Program in accordance with the applicable apprentice rates posted by defendant New York State Department of Labor on taxpayer financed projects.”  That panel also was concerned that apprentices could be improperly used as “cheap labor.”   The highest NYS court agreed, finding “there is a substantial risk that employers would seek to use cheaper labor whenever consistent with the construction market.”

The Takeaway

Construction contractors need to be very careful when they do prevailing wage projects, as there are many minefields for the unwary employer.   This case highlights but a single one of these.

There are many more…