Wage Theft - Bureau of Public Work & Prevailing Wage Enforcement Laws and Guidance

Prevailing wage is the pay rate set by law for work on public work projects. For more information on prevailing wage applicability to private contracts, see Public Subsidy Board information.

Under New York State Labor Law, contractors and subcontractors must pay the prevailing rate of wage and supplements to all workers under a public work contract. Employers must pay the prevailing wage rate set for the locality where the work is performed.  This applies to all laborers, workers, and mechanics employed under a public work contract involving construction, reconstruction, maintenance, or repair work.

A worker's right to prevailing wage was made a part of State Constitution in 1938.

Article 8 and Article 9 of the NYS Labor Law are commonly known as New York State’s prevailing wage statutes.

The rate is set annually by the Commissioner of Labor and NYC Comptroller (for NYC) and takes effect July 1st of each year.

The Fair Play Act prevents employees from being misclassified as independent contractors.

A three-prong test is applied to determine whether a particular project is public work and subject to the prevailing wage requirements of Labor Law § 220 and article I, § 17 of the State Constitution.

• A public agency must be a party to a contract involving the employment of laborers, workmen, or mechanics.
• The contract must concern a project that primarily involves construction-like labor and is paid for by public funds.
• The primary objective or function of the work product must be the use or other benefit of the general public.

Contractors (corporation and/or owner in their individual capacity) may be barred from bidding on any public work project for a period of five years if any of the following occurs:

• Two willful violations within a six-year period.
• One willful violation that involves the falsification of payrolls or the kickback of wages or supplements.
• Felony conviction for a charge directly related to underpayment of wages, and/or falsification of records on a public work project.
• Felony conviction or violation of discrimination provisions of the Workers Compensation Law.
• Second violation under the Fair Play Act.

One year ban for:

• Misdemeanor conviction under the Workers Compensation Law.
• First offense under the Fair Play Act.

• Misclassifying workers as a trade with a lower prevailing rate of pay.
• Not paying supplemental benefits.
• Not paying the correct rate.
• Misclassifying a project.
• Not paying overtime properly or at all.
• Paying workers as apprentices who are not in a New York State registered apprentice program and/or not following apprentice ratios.
• Misclassifying workers as independent contractors.
• Issuing checks for the proper amount and then requiring kickbacks.

• For purposes of the prevailing wage, OT pay is typically earned after 8 hours in a day and on weekends, not just after 40 hours in a week.
• No laborer, worker, or mechanic on public work shall be permitted or required to work more than eight hours in any one calendar day or more than five days in any one week except in cases of extraordinary situations.