32 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP Massachusetts sets distinct prevailing wage rates for public construction work in each municipality and requires the “awarding authority” for the contract to obtain a list of applicable rates from the DLS before the project begins.185 Those rates—which are individualized for each type of job (including type of equipment being operated) that could potentially be needed on the project— must then become a part of the contract.186 The DLS is required to look to the rates established in collective bargaining agreements or other understandings between employers and organized labor for the type of work performed in setting prevailing wage rates (or to private agreements, if no such collective bargaining agreements exist).187 Courts give effect to the DLS’s rate-setting unless it is found arbitrary or capricious.188 Although the statute requires that awarding authorities provide contractors with prevailing wage schedules issued by DLS, the Massachusetts Appeals Court held that a municipality’s failure to provide the contractor with the prevailing wage schedule did not relieve the contractor from its obligation to pay its employees prevailing wage rates.189 Under Massachusetts law, the prevailing wage rate includes certain fringe benefits.190 Employers choosing to provide fringe benefits may take a credit against the prevailing wage rate for the amount of their benefit contributions, up to the amount established by the DLS in the rate-setting process.191 For construction work, Massachusetts law allows employers to take credit for “contributions to health/welfare, pension, annuity or supplemental unemployment insurance plans.”192 Employers cannot take credit for the value of vacation or sick leave.193 Employers are only required to pay their employees prevailing wages for time actually spent on a prevailing wage project, not for all hours they work.194 Travel time may be subject to the Prevailing Wage statutes depending on the type of work being performed.195 Waiting time— 185 M.G.L. ch. 149, § 27, 27F; see George v. Nat’l Water Main Cleaning Co., Civ. No. 10-10289-DJC, 2013 WL 5205846, *2 (D. Mass. Sept. 16, 2013). 186 M.G.L. ch. 149, § 27, 27F. 187 M.G.L. ch. 149, § 26 (“in any of the towns where the works are to be constructed, a wage rate or wage rates have been established in certain trades and occupations by collective agreements or understandings in the private construction industry between organized labor and employers, the rate or rates to be paid on said works shall not be less than the rates so established”). 188 George, 2013 WL 5205846, at *7. 189 Donis v. American Waste Servs., 95 Mass. App. Ct. 317, 324-25 (2019). 190 Id. (Payments by employers to health and welfare plans, pension plans and supplementary unemployment benefit plans under collective bargaining agreements or understandings between organized labor and employers shall be included for the purpose of establishing minimum wage rates as herein provided). 191 DLS, Topical Outline of Massachusetts Prevailing Wage Law, at 18 (May 2021). 192 M.G.L. ch. 149, § 27. 193 See DLS Opinion Letter PW-2009-09 (Nov. 25, 2009) (“[E]mployer deductions from prevailing wages, pursuant to c. 149, §§ 26 and 27, may not include holiday, vacation or sick pay.”). 194 See Teamsters Joint Council No. 10 v. Dir. of Dep’t of Labor & Workforce Dev., 447 Mass. 100, 111 (2006). 195 George, 2013 WL 5205846, at *12 (time spent traveling between catch basins and to/from waste collection facilities is subject to Prevailing Wage Statute because it is part of 27F job site, whereas time spent traveling to first catch basin at the beginning of day, and from catch basis or waste collection facility at end of day, is not subject to Prevailing Wage Statute).
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