A. ORIGINS AND BACKGROUND

Prevailing wage laws were originally introduced in 1931 at the federal level by enactment of the Davis-Bacon Act. Ohio, as most other states, adopted a “little Davis-Bacon Act” which created prevailing wage laws applicable to public construction projects in the State of Ohio. This law requires (subject to various exceptions) that contractors performing work on projects where the improvement is constructed pursuant to a contract with a public authority must pay prevailing wage rates to workers on the project.

Administration and enforcement of Ohio’s prevailing wage law is under the Wage and Hour Bureau of the Ohio Department of Commerce’s Division of Labor and Worker Safety. The website address is www.com.ohio.gov/laws. The Director of the Department of Commerce is the chief administrative authority.

WHEN PREVAILING WAGE REQUIREMENTS ARE APPLICABLE

In order for prevailing wages to be applicable, the contract with the public authority must exceed certain thresholds. As of January 1, 2008, the applicable thresholds for construction of a public improvement are where the cost of the contract work exceeds: 1) $73,891 for new construction, or 2) $22,166 for reconstruction, enlargement, alteration, repair, remodeling, renovation, or painting. Biennial adjustments to threshold levels are made according to the Price Deflator for Construction Index, U.S. Department of Commerce, Bureau of Census, but may not increase or decrease more than 3% for any year.

In 1997, Ohio Legislation passed excluding from application of the prevailing wage requirements projects for public improvements undertaken pursuant to a contract with or for a board of education. This change in the law exempted from prevailing wage requirements the massive improvements undertaken by the Ohio School Facilities Commission.

C. ASCERTAINING THE PREVAILING WAGE RATES

Under Ohio law, the prevailing wage rates shall not be less than the rate of wages payable in the same trade or occupation in the locality (county) where the public work is being performed under collective bargaining agreements. If there are no collective bargaining agreements applying to that trade in that county, then the prevailing rates of wages in the nearest locality in which there are collective bargaining agreements shall be the applicable prevailing wage rate. The published prevailing wage rate is comprised of a basic hourly rate of pay and additional sums for fringe benefits (which may be paid in cash equivalent). The prevailing wage rates are required by law to be made a part of the specifications advertised for the project.

Prevailing wage rates are subject to adjustment periodically based upon changes in the collective bargaining agreements applicable to the different trades. These rates are determined by the Ohio Director of Commerce unless it is a Department of Transportation project, in which case the Department of Transportation establishes the prevailing wage rates.

D. CASH PAYMENTS AND FRINGE BENEFITS

Payment of the prevailing wage rate can be in the form of a combination of cash payments directly to the employee and payment of fringe benefits.

Ohio Revised Code Section 4115.03 provides:

…(E) "Prevailing wages" means the sum of the following:
(1) The basic hourly rate of pay;
(2) The rate of contribution irrevocably made by a contractor or subcontractor to a trustee or to a third person pursuant to a fund, plan, or program;
(3) The rate of costs to the contractor or subcontractor which may be reasonably anticipated in providing the following fringe benefits to laborers and mechanics pursuant to an enforceable commitment to carry out a financially responsible plan or program which was communicated in writing to the laborers and mechanics affected:
(a) Medical or hospital care or insurance to provide such;
(b) Pensions on retirement or death or insurance to provide such;
(c) Compensation for injuries or illnesses resulting from occupational activities if it is in addition to that coverage required by Chapters 4121. and 4123. of the Revised Code;
(d) Supplemental unemployment benefits that are in addition to those required by Chapter 4141. of the Revised Code;
(e) Life insurance;
(f) Disability and sickness insurance;
(g) Accident insurance;
(h) Vacation and holiday pay;
(i) Defraying of costs for apprenticeship or other similar training programs which are beneficial only to the laborers and mechanics affected;
(j) Other bona fide fringe benefits.
None of the benefits enumerated in division (E)(3) of this section may be considered in the determination of prevailing wages if federal, state, or local law requires contractors or subcontractors to provide any of such benefits.

Ohio Revised Code Section 4115.031 provides:

The obligation of a contractor or subcontractor to make payment in accordance with the prevailing wage determinations of the director of commerce, insofar as Chapter 4115. of the Revised Code is concerned, may be discharged by the making of payments in cash, by the making of contributions of a type referred to in division (E)(2) of section 4115.03 of the Revised Code or by the assumption of an enforceable commitment to bear the costs of a plan or program of a type referred to in division (E)(3) of section 4115.03 of the Revised Code, or any combination thereof, where the aggregate of any such payments, contributions, and costs is not less than the rate of pay described in division (E)(1) plus the rates referred to in divisions (E)(2) and (3) of section 4115.03 of the Revised Code.

An area of frequent disagreement arises in connection with fringe benefits. Contractors who do not pay fringe benefits pursuant to a collective bargaining agreement may establish their own fringe benefit plans for which they seek to take credit as counting towards payment of the prevailing wage requirements. However, in order to count, the payment must either be made to a trustee or other third person pursuant to a fund, plan or program or pursuant to an enforceable written commitment communicated to workers. Failure to follow these requirements can result in those fringe benefits payments not counting, and in effect, forcing the contractor to make double payment of fringe benefits.

E. PUBLIC AUTHORITY’S RESPONSIBILITIES AND CERTIFIED PAYROLL

The contracting public authority must designate a prevailing wage coordinator who is responsible to monitor compliance with the prevailing wage law. Duties of the coordinator include obtaining certified payroll reports from the contractor. The certified payroll is sworn to and signed by the contractor to demonstrate compliance with the requirements.

On jobs of duration in excess of four months, the certified payroll reports may be filed once per month. On jobs of less than four months duration, the prevailing wage reports must be filed weekly. The prevailing wage coordinator is responsible to compare the reported wage and fringe benefit information to the rates in the prevailing wage schedule for the project.

If the prevailing wage rate changes during performance of a contract, the Director of Commerce is to notify the public authority, who (through the coordinator) shall within seven days notify all affected contractors. The contractors are required to make the necessary adjustments in the prevailing wage rates. If a contractor is found to have violated the law due to failure of the public authority to notify the contractor of such a change, then the public authority is liable for the back wages, fines, damages, court costs and attorney fees. If timely notice is given by the public authority, then the contractor may be able to request a change order increasing the contract amount (since this represents a change in the specifications), although this remedy is not expressly provided by statute.

F. TRAPS FOR THE UNWARY

In addition to potential problems arising out of claiming credit for fringe benefit payments, Ohio’s prevailing wage law has many other potential traps for the unwary contractor. Issues frequently arise as to the proper classification of employees. The nature of the work performed by the employee should establish the trade and applicable prevailing wage rate. Unfortunately, trade descriptions are sometimes vague and disagreements arise as to which trade rate is applicable which may have significant financial implications.

Issues may arise as to whether someone performing labor is an employee or independent contractor. Another potentially troublesome area relates to required ratios of craftsmen/ mechanics to apprentices/helpers. These requirements are also taken from the union contracts, are published and must be followed.

G. VIOLATIONS AND PENALTIES

Any employee or other interested party may file a complaint alleging violations for failure to comply with the prevailing wage law. Serious sanctions exist for violation of the prevailing wage law. The violator is liable for an amount equal to twice the difference between the established prevailing rate of wages and the amount actually paid, plus attorney fees and court costs. In addition, work can be halted, and the public owner can place a hold on payments to the contractor. Ohio’s Prevailing Wage Law has been interpreted to impose liability upon contractors for prevailing wage violations of their subcontractors unless there is an appropriate contractual provision relieving the contractor of such liability.

Upon a finding by the Director of an intentional violation, a contractor can be debarred. No public authority shall award a contract for a public improvement to any contractor or subcontractor whose name appears on the list of debarred contractors. Notice of convictions are filed with the Secretary of State by the Ohio Department of Commerce.

Violation of Ohio’s Prevailing Wage Law can constitute a criminal violation that may be prosecuted. The author is personally aware of an incident of a filing of a criminal prosecution for alleged violation of Ohio’s Prevailing Wage Law. If the contractor is convicted of violating the law or is found by the Director of Commerce to have intentionally violated the Prevailing Wage Law, then the contractor is prohibited from performing further Ohio public work. “Caution” is the operative word in navigating prevailing wage waters.