SECURITY GUARDS ON PUBLIC IMPROVEMENT PROJECTS ARE NOT ENTITLED TO PREVAILING WAGES
In October 2022, a trial court in New York ruled that security guards employed on projects owned by the School Construction Authority (“SCA”), and other public agencies, are not covered under the New York Labor Law for the payment of prevailing wages. Samuel Ansah v. A.W.I Security & Investigation, Inc., 2022 NY Slip Op 333363 (Sup. Ct. N.Y. County 2022).
In Ansah , workers employed as security guards on public works projects for the SCA, and other various agencies, sued the security company that employed them, claiming that they were entitled to the payment of prevailing wages and supplemental benefits under the New York Labor Law.
Upon review of Article 8 of the New York Labor Law governing public work, the trial court determined that security guards are not entitled to prevailing wages because Section 220(3) only applied to “laborers, workmen or mechanics”. While the court acknowledged that the guards provided a service on public works construction projects, they could not be considered workmen since they did not perform any physical labor, unlike “flaggers” for example, whose “work was predominately physical in content and exposed them to the attendant risks due to the presence of construction, construction equipment and public traffic.”
The court also determined that security guards were not covered by Article 9 of the Labor Law, governing the payment of prevailing wages for building service employees, because the guards were not “performing work in connection with the care or maintenance of an existing building” but rather were hired on projects for the ‘construction, replacement, modernization, or repair of a public work’.
However, while the court dismissed the security guards’ statutory claim for prevailing wages under the Labor Law, it left open for further litigation the question of whether the guards were entitled to prevailing wages under the underlying public works contracts which allegedly contained express terms requiring the payment of prevailing wages to the guards.
As noted by the trial court, under New York law, “laborers, workmen or mechanics” are entitled to prevailing wages on public works projects, provided that physical labor is involved. For example, a carpenter performing both supervisory and non-supervisory functions on a school project is covered under Article 8 of the Labor Law because the duties remain predominately physical in nature. However, if the carpenter is employed in a truly supervisory position, he or she would most likely not be entitled to the payment of prevailing wages.
About the author: George Marco is an attorney practicing in the field of construction law. He also holds a Bachelor of Science in Mechanical Engineering and was previously employed as a Project Manager for a public improvement contractor.
Disclaimer: This article is for informational purposes only and not intended to serve as legal counsel.