Every year, OSHA releases its list of the “Top 10 Most Frequently Cited Standards” as a way to make employers aware of the standards most cited for violations. The idea is that employers will use the list to identify and fix any hazards that would result in a violation of OSHA’s standards and in turn reduce the number of citations and prevent possible injuries. The idea behind the list is good, but the problem is that it lumps all citations from all industries together in order to come up with the top 10. This means that employers in a given industry that doesn’t have employees working at height might not find it very useful that the most cited standard in 2013 was duty to have fall protection. – Read more at: http://constructiondatacompany.com/oshas-top-10-cited-violations-construction-industry/
FFCM Complaint Prompts Contractor Replacement
The Building Committee for the new high school in Greenfield has voted to drop its original contractor for the $65 million job and begin negotiations with the No. 2 bidder after the FFCM filed a bid protest with the Attorney General’s office. FFCM monitors who scrutinized the application submitted by DEW/MacMillin determined that the application was incomplete and notified the Attorney General’s office. The Building Committee accepted the recommendation of the construction manager selection committee, which opted to withdraw its support for DEW/MacMillin Co. of New Hampshire in favor of Shawmut Design and Construction, a Boston company.
Legal Landmark: Leases Subject to Competitive Bidding Law
The Supreme Judicial Court has ruled that an agreement between UMass Lowell and a private developer, Brasi Development, for the development, maintenance and long-term lease of a dormitory constituted a contract for public construction subject to the requirements of the competitive bidding law.
In Brasi Development Corp. v. Attorney General & another, the SJC reversed a Superior Court finding that the agreement was a lease and not subject to the competitive bidding law. The Attorney General’s office had earlier reached a contrary decision following a bid protest by the Foundation for Fair Contracting of Massachusetts and the lowest bidder. Considering all the provisions of the lease agreement and RFP, the Court held that the competitive bidding statue, G. L. c 149 §§ 44A-44H, applies to UMass Lowell’s agreement with Brasi to develop and maintain a student dormitory near its campus.
Awarding Authorities Play Key Role in Prevailing Wage Compliance
The Foundation for Fair Contracting of Massachusetts announces a new Public Construction Watch column designed to recognize Massachusetts municipal and state awarding authorities who demonstrate accountability for compliance with public construction laws.
Awarding authorities must receive, maintain and review certified payroll records to ensure prevailing wage compliance. Section 28 of the same law provides construction workers with “right of action” against a city or town for debt recovery.
Awarding Authorities can also prevent prevailing wage violations by challenging bids that are significantly below the average bid price. An irresponsibly low bid can trigger a preliminary hearing where the contractor must demonstrate how it will complete the project and comply with state laws. Based on findings of fact, an awarding authority may reject a low bid as long as the determination is not made in an arbitrary, capricious or illegal manner. The process could easily prevent delayed or unfinished projects and save hundreds of thousands of taxpayer dollars.
FFCM assists awarding authorities to identify and correct violations of the law before involving state enforcement agencies and resources. Our staff targets public projects throughout the Commonwealth, monitors bidding, collects and reviews certified payroll records, mails to workers and tracks cases to resolution. Potential bid irregularities or certain types of wage and certified payroll record violations are reported directly to the responsible town, city or state awarding authority for corrective action. Since 2010, FFCM has transmitted over 200 cases of alleged violations.
The Foundation works closely with responsive authorities to ensure that contractors paid with public tax dollars are accountable for compliance. Awarding authorities have required contractors to pay their workers restitution for missed “step” increases, submit certified payroll records weekly, resubmit non-compliant records with requisite complete and accurate information, or make other adjustments. This kind of enforcement by awarding authorities sends a clear message to all stakeholders that cheating workers, shortchanging taxpayers and undercutting law abiding contractors will not be tolerated.
The Foundation salutes the following Awarding Authorities for their cooperation and commitment to compliance and fair contracting:
Sewer Cleaner Cited
National Water Main Cleaning Company must pay more than $1 million for intentionally violating Massachusetts’ prevailing wage laws. The Attorney General’s office began investigating National Water Main and its owner, Salvatore F. Perri, after receiving complaints on behalf of workers from the Foundation for Fair Contracting. The AG’s investigation, which covered National Water Main’s work on sewer cleaning, maintenance and repair across the Commonwealth, found that the contractor violated the prevailing wage law by failing to pay the legal rate to employees performing multiple tasks.
National Water Main must pay $506,000 in restitution to a total of 84 employees who worked on various public construction projects from March 2008 to January 2011. The company was also ordered to pay $500,000 in penalties for prevailing wage violations and an additional $50,000 in penalties for failing to submit true and accurate payroll records as required under state law.
According to FFCM executive director, Karen Courtney, “Multiple National Water Main employees on jobs all over the state reported wage violations to the Foundation. Hopefully, this case sends a clear message to contractors that there’s a real cost to breaking the law.”
Risking My Job By Asking for Overtime?
Dear Compliance Man,
I’m a construction worker and since I’ve worked for my boss I’ve never seen overtime. There are times when I’ll work well over 40 hours and not get overtime. Isn’t this illegal?
You’re probably thinking: why don’t you just say something to your boss? I guess I never had the courage, but I’m meeting with him today and I’m going to say something about all of this. I’m nervous, but this is my life and I work very hard for my living and I just want what’s mine. If it turns out that I’m being ripped off can I get back pay?
–Shorted in Sturbridge
Dear Shorted,
Thanks for writing. Your suspicions are right on the money. You should be getting at least time and a half your regular hourly rate anytime you work more than 40 hours in a week. The good news is that you can get some of that money back by filing a claim for overtime under either the federal or state minimum wage laws.
As you prepare to file your claim, it’s a good idea to try to assemble as much documentation as you can–pay stubs, your own notes about when and where you worked–anything that shows a history of your employer breaking the law. Keep in mind that there is a statute of limitation for overtime claims, meaning that you have to file your claim within a certain period of time, two years for overtime claims, three years for prevailing wage claims. Also, under state law, you may be entitled to triple damages if it’s determined that your employer’s violations were “intentional.” In addition, if you make a claim under state law and it is successful, you’re also entitled to collect attorney’s fees. Both the federal and state statutes prohibit retaliation against you because you file a claim for overtime wages due under the law.
If this sounds confusing–and legal matters almost always are–give us a call at 1-877-507-3247. We’d be happy to help you prepare your claim.
Good luck!
For more commonly asked Compliance Man questions, visit the Compliance Man archives. Send your question to info@ffcm.org.
Fraudulent Payrolls, Shady Unemployment, and a Dodgy Employer
Dear Compliance Man,
My husband and many of his coworkers are not getting paid the prevailing wage as required on state projects. The owner of the company also fraudulently fills out certified payrolls, which as you know are required on these projects. My husband has been collecting unemployment for months, as are many others at the company, but still getting paid under the table by the owner. Many of my husbands “paychecks” bounce for his under the table work.
This has been going on for years, and while we realize that we weren’t doing the right thing by working and accepting these checks while collecting unemployment it has now gotten to the point where it needs to be exposed.We just want to survive as a family.
I’m 100% certain that when you interview the workers, all these issues will be found to be accurate. I hesitate to sign this letter because of the owner’s volatile temper and repercussions that may happen should I become involved.
–Had It
Dear Had It,
First of all, thanks so much for being brave and honest enough to come forward. This obviously wasn’t an easy letter for you to write.
Now for the good news. The state of Massachusetts has begun to crackdown on employers, like your husband’s, who skirt the law through various “off the books” schemes. A new anonymous tip-line (1-877-627-7233) has been set up to help workers report fraud at their workplaces, and a tough new state law will entitle workers who’ve been underpaid or denied overtime to triple damages paid by their employers. You’ve done your part by alerting authorities to what sounds like a serious case of workplace fraud.
For more commonly asked Compliance Man questions, visit the Compliance Man archives. Send your question to info@ffcm.org.
Tax Time Means 1099 Kinds of Trouble
Dear Compliance Man,
My boss tells me we are in a “contracting relationship,” in which he “subcontracts” my laboring for his construction business. Trouble is, I have a hunch that I’ve been left holding the tax bag. It sure seems strange to say I’m in business for myself. Last I checked, he’s calling the shots.
– “Holding the Bag” in Boxboro
Dear Boxboro,
If you get a 1099 in the mail, it means that your boss hasn’t been withholding money from your paycheck in order to pay taxes. In the worst case situation, you could end up with a huge tax bill come April 15th.
But before you sell your house or pawn your dog, it’s important to find out if you really are an independent contractor. As the IRS explains, the issue is very complicated – what else is new! The good news, though, is that as a construction worker, unless you have your own business, you are almost always an employee – not an independent contractor.
Does your boss tell you what to do or how to do it? If you are told how, when, or where to do the work, what tools or equipment to use, or where to purchase supplies and services, you’re probably an employee. Have your received on-the-job-training? This indicates that your boss wants the work done a certain way, and that you are probably an employee.
If you need help figuring out your status, call the Foundation for Fair Contracting at 1-877-507-3247, or call the IRS at 1-800-829-1040 and ask for a form SS-8. And if the IRS finds out that your boss misclassified you? Well, then it’s up to your boss to pick up the bill. So check your status before you write that check.
For more commonly asked Compliance Man questions, visit the Compliance Man archives. Send your question to info@ffcm.org.
What’s the Formula for Filing a Complaint?
Dear Compliance Man,
I would like to know how to go about filing a complaint about an employer. I recently learned about a landscaping firm that hires mostly Spanish-speaking workers, many of whom are not aware of prevailing wage requirements. Some of them have worked for the firm for several years, but make only $9-$10 per hour. Because I work with a corporation that does all public work, I am very familiar with state and federal wage laws. What can I do to file a complaint so this can be investigated?
– Concerned in Quincy
Dear Quincy,
Without hearing directly from the workers you mention, there is still quite a bit that can be done to expose this fraud being committed at the expense of the public and the workers themselves.
First of all, I’d like to remind you that in addition to the e-mail you sent, you can call us directly on our fully confidential hotline: 1-877-507-3247. Anytime you (or any construction worker) would like to chat, leave a message – the Foundation for Fair Contracting won’t forget you.
Because the jobs you describe here are public, the contractor has a number of contractual obligations, including submitting payroll records. Once we’ve gathered the necessary evidence, the FFCM is not shy about filing complaints with the Fair Labor and Business Practices Division. The Foundation works directly with you, at no cost, to see that justice is done. And tip-offs like yours are always welcome. For more info on this subject, see the Compliance Man story Fraudulent Payrolls, Shady Unemployment and a Dodgy Employer.
For more commonly asked Compliance Man questions, visit the Compliance Man archives. Send your question to info@ffcm.org.