The Pennsylvania Commonwealth Court recently clarified the scope of coverage under the Pennsylvania Prevailing Wage Act with respect to truck drivers and other workers whose work in relation to a prevailing wage project extends beyond the actual project boundaries.

Contractors and subcontractors performing work on state or federally funded construction projects must pay all "workmen" not less than the prevailing minimum wages for all hours worked. Payment of the prevailing wage on federally funded projects is governed by the federal Davis-Bacon Act; on state funded projects, the Pennsylvania Prevailing Wage Act ("Act") applies. Because of the specific provisions of the federal Act and the Pennsylvania Act, in some cases the applicable state and federal prevailing rates can differ, as can the specific rules regarding coverage and payment of the prevailing wage. In Bockelman Trucking v. Pennsylvania Prevailing Wage Appeals Board, the Commonwealth Court of Pennsylvania interpreted the Pennsylvania Act in a manner consistent with the federal Davis-Bacon Act with respect to the important issue of whether workers whose work activities extend beyond the actual project site are entitled to the prevailing minimum wage.

The disputed issue in Bockelman was whether truck drivers were entitled to payment of the prevailing wage where they were subcontracted to haul materials between a Pennsylvania Turnpike construction site in Lawrence and Beaver Counties and a dump or borrow pit that was located near the project site . Due to the location of the construction site and the borrow pit, to travel from one to the other, the drivers had to first drive several miles eastbound on the Turnpike to the next exit, reenter the westbound lane and drive several miles past the site before turning around again and driving eastbound to the borrow pit. The prevailing minimum wages in Lawrence and Beaver Counties for the particular class of truck drivers was $32.74 per hour; the truck drivers who performed this work alleged, however, that they were paid only $12.00 per hour.

In analyzing the drivers' claims, the Commonwealth Court noted that the drivers were entitled to prevailing wage payment if they fit within the definition of "workmen." The Act defines a "workman" as follows:

[A] "workman" includes laborer, mechanic, skilled and semi-skilled laborer and apprentices employed by any contractor or subcontractor and engaged in the performance of services directly upon the public work project, regardless of whether their work becomes a component part thereof, but does not include material suppliers or their employees who do not perform services at the job site. (emphasis added)

43 P.S. § 165-2(7). The primary disputed issue in the case was whether the truck drivers were performing work "directly upon the public work project" when they were hauling materials between the construction site and the borrow pit. Notwithstanding the fact that the truck drivers needed to leave the section of the Turnpike under construction in order to get to and from the borrow pit, the Commonwealth Court concluded that the pit was part of the project site because it was adjacent to the area of the Turnpike under construction and used exclusively for the project.

In reaching this conclusion, the Commonwealth Court adopted the same legal standards established under federal regulations enacted pursuant to the Davis-Bacon Act. Under these regulations, the site of work is defined as follows:

(1) The site of work is the physical place or places where the building or work called for in the contract will remain; and any other site where a significant portion of the building or work is constructed provided that such site is established specifically for the performance of the contract or project;

(2) Except as provided in paragraph (l)(3) of this section, job headquarters, tool yards, batch plants, borrow pits, etc., are part of the site of the work, provided they are dedicated exclusively, or nearly so, to performance of the contract or project, and provided they are adjacent or virtually adjacent to the site of the work . . .

29 C.F.R. § 5.2(l). Adopting this definition, the Commonwealth Court determined that the site of work includes "secondary sites, other than the project's final resting place, if they are dedicated to the covered project and are adjacent or virtually adjacent to a location where the . . . work is being constructed." Because the borrow pit was adjacent or virtually adjacent to the Turnpike reconstruction site and because it was dedicated exclusively or nearly exclusively to the Turnpike project, the Court held that the work hauling materials between the project and the borrow pit was covered work under the Act. It is important to note that, in reaching this conclusion, the Commonwealth Court disregarded the contract document's description of the borrow pit as an "off-site disposal facility." As such, it appears that such language in the contract documents with the letting agency will not serve to limit the scope of coverage for workmen under the Act.

Ultimately, this significant decision serves to clarify the circumstances under which truck drivers and others who perform work at locations that are outside the actual boundaries of a prevailing wage job site are entitled to payment of prevailing wage. This is an area that is well developed under Davis-Bacon, and the Commonwealth Court has now adopted these federal standards when interpreting prevailing wage requirements under Pennsylvania state law. In light of the Bockelman case, the applicability of the Pennsylvania Act can be summarized as follows:

(1) Materialmen and suppliers who do no more than drop off at the project site are not covered workmen;

(2) Truck drivers are covered workmen when they haul materials within the project site or to/from an off-site location that is:

a) dedicated exclusively, or nearly exclusively, to the performance of the project; and

b) adjacent or virtually adjacent to the site of work.

(3) These same standards apply to other employees who work at nearby tool yards, batch plants, and fabrication shops. If the work location is dedicated to the project and adjacent or virtually adjacent, then work at such locations will be covered.

As can be seen in the Bockelman case, compliance with the prevailing wage laws can involve complex legal and factual issues. While the Bockelman decision addressed the issue of employee coverage under the Pennsylvania Prevailing Wage Act, issues relating to classification of work (i.e., which prevailing rate to pay) and proper crediting of fringe benefits are often also of significant concern to contractors who perform work on state or federally funded construction projects. The attorneys in the Labor & Employment Group at McNees Wallace & Nurick are experienced in assisting contractors in efforts to comply with applicable prevailing wage requirements.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.