Public Work and Prevailing Wage

Under New York State Labor Law, contractors and subcontractors must pay the prevailing rate of wage and supplements (fringe benefits) to all workers under a public work contract. Employers must pay the prevailing wage rate set for the locality where the work is performed. Prevailing wage is the pay rate set by law for work on public work projects. This applies to all laborers, workers or mechanics employed under a public work contract. The Bureau of Public Work administers Articles 8 and 9 of the New York State Labor Laws:

• Article 8 covers public construction
• Article 9 covers building service contracts

We issue wage schedules on a county-by-county basis. They contain the pay rates for each work classification. Under State law, all contracts between a government entity and a contractor must contain these schedules.

The prevailing wage law for building service workers amends Public Service Law Article 2 (Section 42-A). The law now requires that the wages and benefits of building service employees at active major electric or steam-generating facilities, or at transmission or distribution facilities considered critical infrastructure as determined by the NYS Division Homeland Security and Emergency Services (DHSES), in consultation with the NYS Department of Public Service (DPS), will be subject to Labor Law Article 9 prevailing wage requirements. This new law went into effect on September 30, 2020.

Overview of the Prevailing Wage and Bureau of Public Work

Enforcement Guidance - Renewable Energy Prevailing Wage Requirements 224-d

Enforcement Guidance - Roadway Excavation Quality Assurance Act

Contractor Registry;  A.1338/S.5994-C

Adds subsection 220-I to Article 8, establishing a requirement that contractors register with the Bureau of Public Work prior to bidding on public work projects or commencing work on a private covered project that is subject to the prevailing wage pursuant to sections 224-a, 224-d, & 224-e.

The effective date of the registration requirement will be December 30, 2024.  No contractors or subcontractors are required to register prior to that date.

Additional information and the full registration requirements will be available soon.

Roadway Excavation Quality Assurance Act:

On August 16, 2023, The Governor signed the Roadway Excavation Quality Assurance Act (A.5608/S.4887), codified as Labor Law section 224-F (separate from 224-F; Wage requirements for certain climate risk-related and energy transition projects).  It becomes effective on September 15, 2023, and shall be enforced on all contracts for construction solicited on or after the effective date, or in the event there was no solicitation or contract it shall be enforced on all work performed pursuant to a permit issued on or after the effective date.

This law subjects certain roadway construction work by utility company contractors and subcontractors to the prevailing wage requirements of Article 8.  Covered work, defined as a “covered excavation project,” means construction work for which a permit may be issued to a contractor or subcontractor of a utility company by the state, a county, or a municipality to use, excavate, or open a street.  The law does not cover direct employees of a utility company.

The Department of Jurisdiction for this law, subject to the obligations of Article 8, means the department of the state, board, or officer in the state, or municipal corporation or commission or board appointed pursuant to law, whose duty it is to issue a permit to a utility company, or its contractors or subcontractors, for a covered excavation project.

The Fiscal Officer is the Commissioner, except for covered excavation projects performed pursuant to a permit issued by New York City, in which case it shall be the New York City Comptroller.

A Utility Company shall have the same meaning as in the Public Services Law, which excludes cable television providers subject to Article 11 of the PSL.  The law also specifically excludes from coverage work for the Long Island Power Authority.

This law also imposes certain requirements upon government entities before they may issue permits for covered excavation projects.  Such permits may not be issued until an agreement confirming the payment of prevailing wages has been contractually mandated and filed with the department of jurisdiction.  All such permits issued after the effective date of shall include a copy of this law.

Additional record keeping requirements are also established by this law.  Contractors and subcontractors to a utility are now always required to keep records of the payment of prevailing wages, not just when a local law or ordinance requires them as a condition of issuing a permit to excavate, use or open a street.  Such contractors and subcontractors are required to submit certified payrolls with the department of jurisdiction pursuant to Article 8

Frequently Asked Questions

1. What if an open ended or long-term contract for covered excavation projects was signed or solicited prior to the effective date of September 15, 2023?

• Then any specific project (specific location/scope of work specified in a permit) under that contract that is already underway, or for which a permit was already obtained or applied for is not subject to this law.
• Any new project/location under that contract which requires a new permit, applied for on or after the effective date, will be subject to the law.

2. If a general contract has already been awarded, but the subcontracts have not been by the effective date, will the subcontracts be subject to this law?

• No, the general contract controls the applicability of the statute to the project.
• If the general contract was long-term or open ended, see the question above.

3. Does this law only apply to “excavation”?

• No, projects requiring a permit to excavate, open, or otherwise use a street to perform utility work are covered by this law.

4. Is only the opening/excavation of the street covered by this law, or all work performed on the project?

• All the utility work in, on, or under the street is covered, including temporary patching to final repair.

5. What about boring projects that go entirely underneath the street?

• If a permit is required to access the street or the ground below it, then the work is covered.

6. Is work performed adjacent to the street for which the permit was issued to open/excavate/use also subject to prevailing wage?

• Work in, on, or under the adjacent curb, sidewalk, shoulder area or right of way is covered if a permit was required for the excavation, opening or use of the street.
• Work performed on private property to extend a utility hookup from the “curb” to the private structure is not subject to this law.
• NOTE: If the project costs are in excess of $5 million dollars and it received public funding greater than or equal to 30% of the project costs, then Labor Law section 224-a may apply.

7. What is defined as a street?

• A “street” means any highway, road, avenue, lane or alley which the public has a right to use.

8. Is the “contract” date the date of issuance of the permit by the public entity or the date the contract between the utility and contractor was signed?

• A contract date is the date an actual contract between the utility and contractor was signed.

9. What if the work performed required a permit, but no permit was obtained?

• The work is still covered.

10. What utility work is covered by this law?

• Electric, gas, water, steam, sewer, fuel, and telephone/telegraph.

11. If a private party/homeowner hires and pays a contractor directly for a utility hookup or repair, but it requires a permit to excavate, open or use a street, is that covered?

• No, that would not be subject the prevailing wage requirements of this law.

12. What if the private party/homeowner has to hire from a list of utility approved contractors?

• No, that would still not be subject the prevailing wage requirements of this law.

13.What if the private party/homeowner is paying the full bill, but has to go through the utility to get the workperformed and the contractor is hired/paid by the utility?

• Then any portion of that work performed in, on, or under the street, curb, sidewalk and right of way would be subject to prevailing wage. Any work on the private property past the right of way would not be, asoutlined in question 6 above.

14.What if the private party/homeowner receives a grant or some form of public funding to have the utility workperformed?

• The applicability of this law is the same as in questions 11 through 13 above. If the contractor is hired andpaid directly by the private party/homeowner, then the law does not apply. If the contractor is hired andpaid by the utility, then it does apply.

15. Who should request a PRC number?

• The PRC number is the prevailing rate case number assigned to a public work project, covered private project, or any other project subject to prevailing wages pursuant to Labor Law Articles 8 and 9. b. It is the responsibility of the “department of jurisdiction” to obtain a PRC number from the Bureau of Public Work.

16. Who needs to retain certified payrolls?

• Contractors and subcontractors performing covered work and the department of jurisdiction/permit issuing department.

Hauling of Aggregate Supply Construction Materials: After passing both the Assembly and Senate, A.8727/S.7811 was signed by Governor Hochul on February 24, 2022, amending paragraph f of subdivision 3-a of section 220 of the labor law relating to the payment of prevailing wage for work involving the delivery to and hauling of aggregate supply construction materials. Paragraph f is amended to read as follows:

f. Prevailing wage shall be paid for work performed on a public works [project] worksite pursuant to this section for any work involving the delivery to and hauling from such [projects] worksites of aggregate supply construction materials, as well as any return hauls, whether empty or loaded and any time spent loading/unloading.

(NOTE: Matter in italics is new; matter in brackets [ ] is old law to be omitted.)

PROPOSED RULE:

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action: Addition of Part 222 to Title 12 NYCRR.

Statutory authority: Labor Law, section 21(11)

Subject: PrevailingWage for Aggregate Hauling.

Purpose: To clarify the application Labor Law section 220(3-a)(f).

Text of proposed rule: A new Part 222 is added to Chapter III of title 12 NYCRR to read as follows:

Part 222 - Hauling of Aggregate Supply Construction Materials

§ 222.1 Definitions

For the purposes of Section 220 of the Labor Law:

(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.

§ 222.2 Application

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.

The proposed rule has been adopted and was published in the State Register on May 31, 2023.  A lawsuit has been filed in New York State Supreme Court challenging the adopted rule and regulation.  At this time enforcement of the rule has been stayed by the Court.  Therefore, the Bureau of Public Work shall not enforce Section 220.3-a(f) as clarified by Part 222 of 12 NYCRR until the stay is lifted. Updates will be posted here as they become available.

View current prevailing wage rate schedules:

• Article 8 - public construction
• Article 9 - building service contracts

View a previously requested wage schedule.

View archived prevailing wage rate schedules (PDF format):

• Archived Article 8 Rate Schedules
• Archived Article 9 Rate Schedules

Request for Wage and Supplement Information

Please submit your "Request for Wage and Supplement Information" (PW39) ONLY once.

If you submit the same request multiple times, it will assign you different PRC#s for the same project.

If you include your e-mail address on a mailed or faxed Request for Wage and Supplement Information (PW39), we will e-mail you a link to your Original Wage Schedule with the assigned Prevailing Rate Case number ( PRC# ).

From this link you will have access to:

• PDF files of your complete wage schedule package
• Online Notice of Award (PW16) form
• Online Notice of Completion/Cancellation of Contract (PW200) form

Reminder to all Contractors

We post any error corrections or updates in the annual determination to the Department's web site on the first business day of each month. Contractors are responsible for paying these updated rates retroactive to July 1.

For Article 8 (Construction), the posted schedule must be:

Capable of withstanding all weather conditions

Have the title "PREVAILING RATE OF WAGES" in letters no smaller than two (2) inches by two (2) inches.

For Article 9 (Building Service), the schedule must be:

Posted on or before the first day that work begins.

The following posters must also be posted

• Public Work Poster (English)
• Public Work Poster (Spanish)
• Fair Play Act Poster (English)
• Fair Play Act Poster (Spanish)
• Unemployment Insurance Poster (This poster is obtained by registering with our UI Division - call (888) 899-8810)
• Worker's Compensation Poster (This poster is supplied by the employer's individual insurance carrier)
• Disability Benefits Poster (This poster is supplied by the employer's individual insurance carrier)
• PW101 Public Work Poster (This poster informs workers of their right to prevailing wage and supplements rate)

Article 8 FAQ

Article 9 FAQ

To determine if an individual or entity is prohibited from bidding on or being awarded a public work contract, searches on two databases should be performed (with additional instructions on their uses available at the links listed below).

NYS Debarred List (PDF) & NYS Debarred Database: The NYS Debarred List contains individuals and entities that have been debarred for violations of Articles 8 and 9 of the Labor Law, as well as for violations of the Workers' Compensation Law.

Federal System for Award Management: The U.S. General Services Administration allows you to search the status of business entities.

Questions about Public Work? Contact us at: [email protected].