New York State Expands Prevailing Wage Requirements
By: Jonathan Landesman and Aislinn Sroczynski
In August 2023, Governor Hochul signed the Roadway Excavation Quality Assurance Act into law, expanding New York’s prevailing wage law. The state now requires utility company contractors and subcontractors to pay prevailing wages when a permit is issued to excavate, open, or use a street—regardless of whether the project is private or public. The act became effective on September 15, 2023.
What do utility contractors need to know about the act?
The utilities covered by the act include electric, gas, water, steam, sewer, fuel, geothermal, and telephone/telegraph companies. A “covered excavation project” is a project where a state, county, or municipality has issued a permit “to use, excavate, or open a street.” This includes opening or closing a road, sidewalk, and curb cuts. Despite its name, the act is not limited to excavation projects. All the utility work in, on, or underneath a street is also covered, as well as the closing and patching of the street. Even a project that involves work entirely underneath the street is covered so long as a permit is required to access the street or the ground below it.
Work performed adjacent to the street for which a permit was issued may also be subject to the act if work in, on, or under the adjacent curb, sidewalk, shoulder area, or right of way requires a permit for the excavation, opening, or use of the street. However, work performed on private property past the curb or right of way is not subject to the act.
Open-ended or long-term contracts for covered excavation projects will only take precedence if they were entered into before September 15, 2023, and any specific project under that contract is already underway or a permit was already obtained or applied. Any new project or location under a contract that requires a new permit, applied for on or after September 15, 2023, is subject to the act.
In addition to utility contractors and subcontractors paying prevailing wage for covered excavation projects, contractors are also required to keep original payrolls or transcripts “setting forth the names and addresses and showing for each workman, laborer, or mechanic the hours and days worked, the occupations worked, the hourly wage rates paid and the supplements paid or provided.”
To ensure compliance with the act, no permit may be issued for a covered excavation project until an agreement confirming the payment of wages as required by the Act has been contractually mandated and filed with the department of the jurisdiction (meaning the jurisdictional entity charged with issuing the permit).
Conclusion
This new law is part of a trend that we are seeing not only in New York but across the country, where federal, state, and municipal entities are trying to expand the reach of prevailing wage requirements. While parts of the act are crystal clear, other are left ambiguous. To the extent that you have questions or need guidance on this law or any other laws related to prevailing wage compliance issues, do not hesitate to reach out to Jonathan Landesman (jlandesman@cohenseglias.com) or Aislinn Sroczynski (asroczynski@cohenseglias.com) of Cohen Seglias.
As chair of Cohen Seglias’ Labor & Employment Group, Jonathan Landesman understands the high stakes associated with employment litigation and labor relations and counsels his clients on proactive and preventative strategies to ensure the long-term health of their business. When litigation is necessary, he aggressively defends his clients to protect their interests. Jon can be reached at jlandesman@cohenseglias.com and 267.238.4726.
Aislinn Sroczynski is an associate in Cohen Seglias’ Labor & Employment Group. She counsels clients on issues including sick leave, overtime pay, harassment, and workplace policies. When disputes arise, she litigates claims involving retaliation, wage and hour, wrongful termination and other employment issues. Aislinn can be reached at asroczynski@cohenseglias.com and 267.238.4757.
