260-RICR-30-15-3. Rules and Regulations Relating to Prevailing Wages (version Amendment, 11/20/2011 to 04/17/2012)

DIVISION OF PROFESSIONAL REGULATIONS RULES AND REGULATIONS RELATING TO PREVAILING WAGES (Revised 10-28-11) 1) Any contractor who has been awarded a contract for a Public Works Project in excess of $1,000.00, or any subcontractor performing work on said project, shall be liable for the payment of the applicable prevailing wages rate, minus authorized fringe benefit credits, under this chapter regardless of whether or not the prevailing wages were listed in the contract between the contractor and the awarding authority of the state or political sub-division, as required by law. A fringe benefit is a benefit that is granted by an employer to an employee by company policy that involves a monetary cost such as holiday pay, vacation pay, health insurance, bona fide pension plans, etc. All fringe benefit plans must be authorized by the employee before they can be used as a credit against the fringe benefit portion of the rate. Benefits required by law such as workers compensation, unemployment premiums and matching social security are not considered “fringe benefits” and cannot be used as a credit against the fringe benefit portion of the rate. Authorized fringe benefit credits may be deducted from prevailing wages owed pursuant to Rule 17. 2) Any contractor who has been awarded a contract for a Public Works Project in excess of $1,000.00, shall be liable for the payment of prevailing wages under this chapter regardless of whether or not a subcontractor may be the primary obligor. The contractor shall ensure that a subcontractor pays the prevailing wage to his employees and otherwise complies with the provisions of R.I.G.L. Chapter 37-13. 3) Pursuant to RIGL §37-13-4, all public works projects shall be done by contract. Before awarding a contract for a Public Works Project, an awarding authority shall first determine from the Department of Labor and Training’s website, www.dlt.ri.gov/pw, Debarment List, whether the proposed contractor has been debarred under R.I.G.L. §37-13-16 and shall then disqualify all such debarred contractors. In addition, the awarding authority shall notify all bidders that the prevailing wage is required as a condition of the contract. 4) All complaints filed for noncompliance with Chapter 13, Title 37 of the General Laws of Rhode Island shall be in writing, and on forms issued by the Department of Labor. The written complaints must be filed with the Department of Labor and Training within twenty-four (24) months of the completion of the project. 5) Any contractor of or subcontractor doing work on a Public Works Project, must pay the full prevailing wage rate for the classification of the work performed by an apprentice unless such apprentice is registered under and apprenticeship program sanctioned by the Rhode Island Department of Labor and Training. Moreover, all general contractors and subcontractors who perform work on any public works contract awarded by the state and valued at one million dollars ($1,000,000) or more shall employ apprentices required for the performance of the awarded contract. The number of apprentices shall comply with the apprentice to journeyman ratio for each trade approved by the Department of Labor and Training. State awarding authorities must determine from the Department of Labor and Training’s website, www.dlt.ri.gov/apprenticeship whether all contractors and subcontractors have a registered apprenticeship program. 6) Any proceeding to debar a contractor from bidding on a Public Works Project under the provisions of R.I.G.L. Chapter 37-13, may be brought against the principals, officers, or successors in interest of such contractor, where such principals, officers or successors in interest are responsible for the violation of this chapter. 7) The Department of Labor and Training will be guided by the General Wage Decisions (Davis-Bacon wage determinations) in accordance with Section 37-13-8 of the General Laws of Rhode Island. 8) In order to comply with Section 37-13-13 of the General Laws of Rhode Island, contractors shall execute a fully completed RI Certified Weekly Payroll Form, Appendix A, for each week of work performed on the project and shall furnish the fully executed RI Certified Weekly Payroll Form to the awarding authority on a monthly basis for all work completed in the preceding month. However, federal forms may be submitted to the Rhode Island Department of Transportation. If the Department of Labor and Training investigates any contractor awarded a contract from the Rhode Island Department of Transportation, the contractor shall furnish the Department of Labor and Training a fully executed certified payroll on the RI Certified Weekly Payroll Form, Appendix A, within ten (10) days of request. All awarding authorities shall furnish the Department of Labor and Training any requested certified payroll within ten days of request. The Department of Labor and Training may impose a penalty of up to five hundred dollars ($500) for each calendar day of noncompliance with this section. 9) In compliance with Section 37-13-13, when the general or primary contract is one million dollars ($1,000,000) or more, each contractor shall maintain on the work site a fully executed RI Certified Prevailing Wage Daily Log, Appendix B, listing the contractor’s employees employed each day on the public works site; the RI Certified Prevailing Wage Daily Log shall be available for inspection on the public works site at all times; this rule shall not apply to road, highway, or bridge public works projects. The Department of Labor and Training may impose a penalty of up to five hundred dollars ($500) for each calendar day of noncompliance with this section; mere errors or omissions in the RI Certified Prevailing Wage Daily Log shall not be grounds for imposing a penalty under this section 10) The Director of Labor and Training may enter into consent agreements with contractors and/or subcontractors to resolve all issues under R.I.G.L. Chapter 37-13. 11) In enforcing the provisions of Chapter 13 of Title 37, when any contractor or subcontractor fails to comply with RIGL 37-13-13(a) and (b), the Director of Labor and Training may order an awarding authority to withhold all future payments until such time as the contractor or subcontractor has fully complied. The amount withheld from any subcontractor shall be proportionate to the amount attributed or due the offending subcontractor as determined by the awarding authority. 12) All service and maintenance contracts with the State of Rhode Island or political subdivision therefore shall comply with the provisions of Chapter 13, Title 37 where the contract price exceeds one thousand dollars ($1,000.00) and the work includes alterations, installation, repairs or construction. See Definitions herein for exceptions. 13) Each contractor awarded a contract with a contract price in excess of one thousand dollars ($1000.00) for public works, each subcontractor who performs work on public works and each awarding authority awarding any such contract, shall keep those certified weekly payroll records required by 37-13-13 and on the forms set forth in Regulation 8 above, in a safe and secure location for a period of two (2) years from the date such work was performed. These certified weekly payroll records shall be made available to the Director of the Department of Labor and Training within ten (10) days of request to any contractor, subcontractor, or awarding authority. 14) The prevailing rate of wages and payments made to or on behalf of employees, as set forth in Chapter 37-13, for general contractors and subcontractors, shall be determined as of the date of the awarding of the contract for public works to the general contractor and shall remain effective until such time as those rates are modified pursuant to R.I.G.L. §37-13-8. 15) The Department of Labor and Training, in making its investigation and determination of prevailing wages pursuant to 37-13-8, shall not determine or address jurisdictional disputes between trade or trades. 16) All complaints filed with the Department of Labor and Training pursuant to Chapter 37-13 shall include information sufficient to establish a prima facie claim, and the Department may reject any complaint that does not establish such claim. This information shall include, but shall not be limited to: evidence of the actual work performed by the employee(s) involved in the complaint; the locations(s) and the exact date(s) the work in question was performed; verification of the funding source; and evidence that the correct prevailing wage was not in fact received. 17) The Director of Labor and Training hereby adopts the United States Department of Labor’s bona fide fringe benefit credits and accompanying rules and regulations. These benefits may include medical or hospital coverage, life insurance, disability insurance (not workers’ compensation), pension, 401k, apprentice costs (books, tuition) or holiday, sick, vacation/personal time. State mandated unemployment insurance, travel, gas reimbursement, company vehicle, uniforms and discretionary bonuses are not bona-fide fringe benefits. In addition, in order for the plan to be acceptable, the following stipulations must be met: • Contributions must be irrevocable and for the employee’s benefit; • Contributions must be made regularly and at least on a quarterly basis; • Contributions must not be required by law (i.e.: taxes, workers’ compensation, social security, etc.); • Contributions made for fringe benefit plans for prevailing wage work may not be used to fund the plan for periods of non-prevailing wage work; • The amount of contributions for fringe benefits must be paid irrevocably to a trustee or third party. If the fringe benefits are anticipated to be paid from general assets of the contractor (ex. holidays, sick and vacation days, profit sharing, etc.), the contractor must set aside, in an escrow account the amount of money the contractor plans to claim as a fringe benefit credit for the prevailing wage project. For example, if a contractor wants to claim credit for 10 paid holidays per year, the contractor must calculate the amount that will be paid (10 holidays x 8 hours x $10/hour = $800) and place those funds in an escrow account. In the event that an employee leaves the company before the end of the calendar year and prior to the completion of the project, any remaining escrowed funds must be paid to the employee. The allowable hourly credit must be determined separately and documented for each employee since the credit is based on figures that will usually vary for each individual, depending on their benefit contribution amount, type of benefits, hours worked, etc. In addition, only the employer’s contribution toward a benefit may be used to calculate the allowable hourly credit. 18) Owners, supervisors, or foremen performing manual work on the public works site must be documented as employees on the contractor’s RI Certified Weekly Payroll Form, Appendix A, which must show payment of the applicable prevailing wage rate. DEFINITIONS A. Successor in interest is one who continues to retain the same right, control or interest in a new business, firm, or corporation which purchased or merged with a former business, firm or corporation. B. A Principal is a person who has a majority of the ownership of a business, firm or corporation. C. “prevailing wage law” i “prevailing wage law means R.I.G.L. §37-13-1 et.seq. D. “public work” i. “public work” means grading, clearing, demolition, improvement, completion, repair, alteration or construction on any public site; ii. the term “public work” does not include: a. grading, clearing, demolition, improvement, completion, repair, alteration or construction on any public site for which no salary or wages or in kind payments are paid or owed; b. ordinary maintenance work performed on a regularly scheduled basis (e.g., daily, weekly, monthly, seasonally, semiannually or annually) or on a routine basis to service, check, or replace items or parts that are not broken. E. “heavy construction” i. “heavy construction” means those construction projects that are not properly classified as either “building”, “highway”, or “residential”. Projects within the heavy classification are distinguished on the basis of their particular project characteristics, like complex engineering and industrial nature, and separate wage determinations; ii. Examples of heavy construction include, but are not limited to power plants, pipelines, mass transit lines, marine and port facilities, sewage and solid waste facilities, landfills wastewater treatment facilities, sanitary, storm and sewer facilities, water supply facilities, transmission lines, aqueducts, water treatment facilities, desalination plant facilities, dams and reservoirs and the laying of fiber optic cable; F. “public agency” i. “public agency” means the State of Rhode Island, any awarding agency or authority of the State of Rhode Island, those agencies listed at R.I.G.L. §37-13- 7(d), any Rhode Island city, town or village or any division of same, or any person or other entity acting on behalf of any public agency as defined herein; G. “public works contractor” i. “public works contractor” means the prime contractor, and each and every subcontractor, performing public work or heavy construction on any public works project site; H. “public works contract” i. “public works contract” means any contract, purchase order, or any other legal agreement, in writing, for any public work or heavy construction on a public site to be performed by a public contractor on behalf of a public agency for a fixed or determinable amount of $1,000 or more; ii. payments made through contracts with third parties on behalf of a public agency shall be deemed public works contracts if public funds are utilized; I. “construction” i. “construction” means construction activity, as distinguished from manufacturing, furnishing of materials or servicing and maintenance work and includes, without limitation, the construction of buildings, structures, improvements of all types and heavy construction work: ii. construction work includes altering, remodeling, demolishing existing structures, installation of items fabricated off-site, painting and decorating, the transporting of materials and supplies to or from the public works site by the employee of the public works contractor consistent with RIGL §37-13-7(c); J. “public works site” i. “public works site” means the physical place or places where the heavy construction or public work called for in the public works contract takes place or will remain and is owned or will be owned by the public agency; ii. the physical place(s) where the public work or heavy construction is to occur also means other adjacent or nearby property used by the public works contractor which can reasonably be said to be included in the public works site; iii. physical place(s) which are not owned by a public agency but which are developed under contract and in anticipation of being owned by a public agency shall be considered a public works site. K. “public works project” “public works project” means public work or heavy construction work at any public works site for a public purpose for which the prevailing wage law applies. L. “Employee” i. “Employee” means any person employed by an employer. This definition shall be interpreted consistent with the definition of “employee” under 29 U.S.C. 203(e) and the Fair Labor Standards Act, including any exemptions thereto under said Act applicable to employment in Rhode Island. M. ”Employer” i. “Employer” means any person acting directly or indirectly in the interest of an employer in relation to an employee. This definition shall be interpreted consistent with the definition of “employee” herein and the definition of “employer” under 29 U.S.C. 203(d) of the Fair Labor Standards Act, including any exemptions thereto under said act applicable to employment in Rhode Island; N. “Independent Contractor” i. “Independent Contractor” means any natural person, business, corporation or entity of any kind that provides goods or services to another and that does not qualify as an “employee” as provided for herein; O. “Residential Construction” i. Residential Construction means projects consisting of single family homes and apartments up to and including four (4) stories. APPENDIX A APPENDIX B