Prevailing wages are not required to be paid to workers for time spent delivering aggregate from a quarry or plant to a public construction project.

I have fielded some emails and phone calls over the last few days dealing with aggregate suppliers providing significantly higher quotes for providing aggregate to public projects. The reason for the higher pricing is the mistaken belief that a NYS DOL proposed rule requiring prevailing wages be paid to quarry drivers is actually a governing final rule. The mistaken belief may be due in part to NYS DOL representatives advising contractors and suppliers (in error) that the proposed rule is in fact a final and effective NYS DOL rule.

The proposed rule is just that, proposed. It is not final and is not enforceable. Pursuant to NY’s Administrative Procedure Act §203, a rule becomes effective only when it is filed with the secretary of state and the notice of adoption is published in the state registry. The proposed rule has not been so filed, and its adoption has not been published in the state registry.

In my discussions with statewide trade groups, it’s unlikely the proposed bill in its current form will be made effective. If the DOL does make the rule effective, it will be met with immediate legal action by those trade groups because it runs counter to the statute it seeks to implement.

The actual bill (Senate Bill 255-B) is vague. The Governors approval memorandum to the bill states:

“I have reached an agreement with the Legislature to clarify that prevailing wage will be paid only at the worksite itself and for travel between the worksite and a designated central stockpile where aggregate supply construction materials are delivered. Prevailing wage will not apply to out of jurisdiction deliveries of aggregate supply materials to the designated central stockpile.”

As set forth below, paragraph (c) of the DOL’s proposed rule does just the opposite of the Governor’s approval memorandum by mandating prevailing wages be paid for deliveries from plants or quarries outside the worksite, to the worksite. Given the precise clarification contained in the Governor’s approval memorandum there is no authority for para (c) of the proposed rule.

The PROPOSED DOL RULE

The proposed rule sets out to define these terms as follows: “(a) Worksite means the area in which the improvements associated with a specific project, as defined in the construction contract, and any surrounding areas supporting that specific project. (b) Central stockpile means a location of centrally stockpiled materials solely dedicated for use on a public work project that is not part of a worksite but intended to support the worksite. (c) Aggregate supply construction materials” means sand, gravel, stone, crushed stone, dirt, soil, millings, and fill.”

The proposed application is as follows: “For the purposes of Section 220 of the Labor Law: (a) Prevailing wage shall be paid for work performed at a worksite involving the delivery of aggregate supply construction materials to such worksite. (b) Prevailing wage shall be paid for work performed involving the hauling of aggregate supply construction materials from a worksite to a central stockpile, as well as any return hauls, empty or loaded, time spent loading or unloading at a worksite, and time spent loading or unloading at a central stockpile related to hauls from or to a worksite. (c) Prevailing wage shall be paid for work performed within a 50-mile radius of a worksite involving the delivery of aggregate supply construction materials from a vendor of aggregate supply construction materials, such as a plant or quarry, to a worksite, except prevailing wage shall not be paid to direct employees of a supplier of aggregate supply construction materials, when making a single delivery in a given day.”

Daniel P. Adams is a founding partner of Adams Leclair LLP.