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The Massachusetts Division of Occupational Safety (DOS) issues prevailing wage schedules to cities, towns, counties, districts, authorities, and agencies of the Commonwealth for construction projects and several other types of public work. These prevailing wage schedules contain hourly wage rates that workers must receive when working on a public project.

DOS Recently Released PW-2010-11-07.29.10 on Prevailing Wages

The DOS regularly issues Prevailing Wage Opinion Letters and recently released PW-2010-11-07.29.10. This letter confirms that the University of Massachusetts is one of “the several departments of the government of the commonwealth” and therefore subject to MGL, c. 5, §1. As such, the print shop at the University of Massachusetts – Amherst “must require its printing contractors…to pay prevailing wage rates to their employees.”

MGL, c. 5, §1 Mandates Prevailing Wages

According to the DOS, the relevant part of MGL, c. 5, §1 provides as follows:

The commissioner of administration, or any other awarding official, in the advertising for bids or the placing of orders for the execution of printing, composition, proof reading, presswork, all processes used in the making of printing plates, paper ruling and binding, or for the supplying of office stationery and blank books without printed headings, for the several departments of the government of the commonwealth other than the legislative department… Contracts or orders shall be given to such establishments only as pay the prevailing rate of wages, based on wage rates and working hours that have been established by collective bargaining agreement or understanding between organized labor and employers; provided, that nothing herein contained shall prevent said commission, or any other awarding official, from placing contracts or orders with existing state institutions or departments which furnish printing or other work of the kind and character above mentioned…

The University of Massachusetts is One of the Several Departments of the Government of the Commonwealth

The DOS concludes that the preponderance of the authority indicates that the University of Massachusetts is one of “the several departments of the government of the commonwealth”. Among other factors are the following

• The University of Massachusetts “is subject to the statutory provisions governing capital facility projects under the division of capital asset management.”
• The University of Massachusetts is subject “to the competitive bidding laws.”
• The University of Massachusetts “does not dispute that it is subject to the prevailing wage law for construction of public works projects.”
• “DOS’s records reflect that the University’s Boston campus regularly requests DOS to provide prevailing wage rates for its printing and binding contracts.”

The DOS Concludes that the University Is Subject to the Prevailing Wage Law

“Because the University is subject to the prevailing wage law for printing, contractors which provide printing services to the University are required to pay the prevailing wage rate set by the DOS for such contracts.”

Vision Payroll Assists Employers Preparing Certified Weekly Payroll Reports

Vision Payroll is ready to assist employers in gathering information for certified weekly payroll reports. Vision Payroll can also prepare the certified weekly payroll reports for submission to the proper authorities. Contact Vision Payroll today to get started.

The Massachusetts Division of Occupational Safety (DOS) issues prevailing wage schedules to cities, towns, counties, districts, authorities, and agencies of the Commonwealth for construction projects and several other types of public work. These prevailing wage schedules contain hourly wage rates that workers must receive when working on a public project.

The DOS regularly issues Prevailing Wage Opinion Letters and recently released PW-2010-10-08.24.10. This letter confirms “the job classification under the Massachusetts Prevailing Wage Law for workers who perform certain tasks related to the repair and replacement of existing reinforced concrete and steel bridge elements on highway projects.” The following categories of tasks were at issue:

1. The cutting of concrete with a hand held machine with a diamond blade is paid at no less than the rate for “Demo: Concrete Cutter/Sawyer”.
2. The removal of deteriorated concrete with a hand held pneumatic chipping hammer is paid at no less than the rate for a “Pneumatic Drill/Tool Operator”.
3. Drilling and installing reinforcing dowels utilizing an electric hammer drill or pneumatic rock drill is paid at no less than the rate for a “Pneumatic Drill/Tool Operator”.
4. Striking off concrete to proper grade with hand held shovel or screed is paid at no less than the rate for a “Laborer”.
5. Placing concrete in work concrete formwork and vibrate with a hand held or form vibrator is paid at no less than the rate for a “Laborer”.
6. Erecting and dismantling of exterior scaffolds for all trades for heavy highway and bridge work is paid at no less than the rate for a “Laborer”.
7. Construct, and assist in constructing, concrete forms from 2 x 4s and plywood utilizing a handheld hammer, tape measure, level and skill saw.
8. Erect, and assist in erecting, wood concrete forms to proper line and grade.
9. Secure concrete forms with timber walers utilizing a handheld hammer and wrench.

The DOS concluded that tasks 1-6 above “are are paid at no less than the rates indicated” and “[t]he tasks designated in items 7 through 9, above, are paid at no less than the rate for a ‘Carpenter’”.

Finally, the DOS stated that “the removal of deteriorated reinforcing mat elements and the subsequent cutting, handling, placing the mats or wire mesh [and] the cutting and removing rebar with an oxygen acetylene torch, bolt cutter or cutoff saw [are] paid at the rate for an ‘Ironworker’”.

Vision Payroll is ready to assist employers in gathering information for certified weekly payroll reports. Vision Payroll can also prepare the certified weekly payroll reports for submission to the proper authorities. Contact Vision Payroll today to get started.

The Massachusetts Division of Occupational Safety (DOS) issues prevailing wage schedules to cities, towns, counties, districts, authorities, and agencies of the Commonwealth for construction projects and several other types of public work. These prevailing wage schedules contain hourly wage rates that workers must receive when working on a public project.

The DOS regularly issues Prevailing Wage Opinion Letters and recently released PW-2010-09-07.20.10. This letter confirms “the job classification under the Massachusetts Prevailing Wage Law for workers who repair and replace components of source capture vehicle exhaust systems in public works projects at various fire stations.” The following categories of tasks were at issue:

1. The workers repair and replace “nozzles” and “pneumatic grabbers” which provide an airtight connection between the system and the vehicle exhaust pipe.
2. The workers repair and replace “airlines” which are housed inside the “system exhaust hose.” The “airlines” are connected to the grabber and facilities the air-tight fit, as well as facilitate the extraction of the exhaust fumes from the building via the system.
3. The workers repair and replace “upper exhaust hoses” and “lower exhaust hoses” on the system, which house the inner airlines, and connect the pneumatic grabber to the system duct work.
4. The workers repair and replace “uncoupling valves” and “quick release fittings” on the system, which facilitates the disconnection of the system from the vehicle, when the vehicle exits the fire station.
5. The workers repair and replace the “regulator”, which regulates the air flow.
6. The workers repair and replace the “balancer”, which keeps the hose elevated above the floor.
7. The workers repair and replace “shut off valves”, “pressure switch”, “compressors”, “pressure sensors”, “chrome elbows”, “five horse power motors”, safety disconnect mechanisms, “back draft dampers”, “drain cocks”, and various other components.
8. The workers repair and replace sheet metal duct work and/or fittings.

The DOS concluded that “the repair and replacement of components of source capture vehicle exhaust systems work, as described herein, is paid at the rate for ‘Sheet metal worker’ as indicated on the rate sheet”.

Vision Payroll is ready to assist employers in gathering information for certified weekly payroll reports. Vision Payroll can also prepare the certified weekly payroll reports for submission to the proper authorities. Contact Vision Payroll today to get started.

The Massachusetts Division of Occupational Safety (DOS) issues prevailing wage schedules to cities, towns, counties, districts, authorities, and agencies of the Commonwealth for construction projects and several other types of public work. These prevailing wage schedules contain hourly wage rates that workers must receive when working on a public project.

The DOS regularly issues Prevailing Wage Opinion Letters and from time to time updates the related Topical Outline of Massachusetts Prevailing Wage Law. Information is available on many topics related to prevailing wage, including certified weekly payroll reports. In addition to discussion on the various topics, references are included to opinion letters that explain the topic in further detail.

Vision Payroll is ready to assist employers in gathering information for certified weekly payroll reports. Vision Payroll can also prepare the certified weekly payroll reports for submission to the proper authorities. Contact Vision Payroll today to get started.

The office of Massachusetts Attorney General Martha Coakley recently announced a settlement with FedEx Ground over claims that FedEx Ground misclassified drivers as independent contractors rather than employees. As a result, it was alleged that FedEx Ground underpaid payroll taxes, workers’ compensation and unemployment assistance.

“We have made enforcement against employer misclassification a priority because employers who misclassify workers are gaining an unfair advantage over their competitors and unfairly depriving the Commonwealth of tax and other revenues,” AG Coakley said. “With today’s agreement, we have recovered $3 million owed to taxpayers and taken a step to level the playing field for businesses. I want to thank Governor Patrick and his Executive Office of Labor and Workforce Development and the Department of Revenue for assisting in the investigation and resolution of this matter.”

In 2007, the Attorney General’s Office cited FedEx Ground for violation of the Independent Contractor Law, by misclassifying its drivers, failing to provide a proper paystub, failing to provide workers’ compensation, not paying overtime to certain drivers, and neglecting to deduct and withhold state income taxes. FedEx Ground appealed the matter to the Division of Administrative Law Appeals (DALA). The Attorney General’s Office citations against Fed Ex Ground included penalties of more than $190,000.

While FedEx Ground’s appeal was pending before DALA, the Attorney General’s Office coordinated further investigation with the Executive Office of Labor and Workforce Development and the Department of Revenue into FedEx Ground’s business practices. The joint investigation revealed that FedEx Ground’s misclassification of employees had resulted in significant underpayments to the Department of Revenue, Division of Industrial Accidents and Department of Unemployment Assistance.

The settlement amount includes these significant underpayments. The settlement also provides for a payment for the 13 drivers named in the Attorney General’s citation. FedEx Ground drivers in Massachusetts have brought their own lawsuit against FedEx Ground that remains pending and is not affected by this settlement. FedEx Ground denies liability in the settlement.

Massachusetts uses a three-factor test to determine if service providers should be considered employees or independent contractors. Due to increased enforcement and significant penalties for misclassification, Vision Payroll strongly recommends employers consult with a competent labor law attorney to help determine status of workers as employees or independent contractors.

This week’s question comes from Aaron, a business owner. We have several employees who work in Massachusetts, but live in neighboring states. Do I need to withhold state tax on wages paid to non-residents? Answer: Massachusetts requires employers to withhold state tax from wages paid to non-residents for services performed in Massachusetts. Most states have similar requirements that employers withhold tax on non-residents, but some states do not require withholding until a certain time or dollar limits are reached. Additionally, some states have setup reciprocal agreements with other states that allow the employees to be taxed in their home states. Massachusetts (and many other states) has special rules for unique occupations such as athletes, entertainers, and flight crewmembers. Contact Vision Payroll for further information on your unique situation.

In Notice 2010-48, the Internal Revenue Service (IRS) provided administrative “relief to sponsors of defined contribution pre-approved plans (i.e., master and prototype (‘M&P’) and volume submitter (‘VS’) plans).” Notice 2010-48 extended the following from April 30, 2010 to July 30, 2010:

• Deadline for restating affected pre-approved defined contribution plans,
• Deadline for submitting determination letters to the Service, and
• The § 401(b) remedial amendment period with respect to these plans.

The notice lists how a plan is considered in an affected area and lists the eight affected areas, all of which received previous relief from the IRS. The areas are the following:

1. Connecticut
2. Tennessee
3. Alabama
4. Mississippi
5. New Jersey
6. Massachusetts
7. Rhode Island
8. West Virginia

Contact Vision Payroll for further information on Notice 2010-48.

An Assistant Professor in the Williams College (Williams) Political Science Department was denied continuing health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) after Williams terminated his three-year teaching contract “for cause because of his guilty plea [to student aid fraud, bank fraud, and social security fraud], his failure to notify [Williams] of the crimes and subsequent plea, fraudulent credentials he had supplied to Williams…in seeking employment, and his misuse of a Williams…credit card.”

In Moore v. Williams, DCMA, 09cv30208, 4/7/2010, the court granted the defendant’s motion to dismiss, thereby closing the case. Under COBRA, terminated employees may elect to continue their health care coverage, generally at their own expense. An exception disallows COBRA coverage when an employee is terminated for gross misconduct. Although the court stated that there are no regulations defining gross misconduct for this purpose, “The conduct in this case is sufficiently outrageous to constitute gross misconduct, and while it did not arise from an ‘evil design’ to harm [Williams], it indicated a reckless disregard for [Williams’s] interests.”

Due to the clear lack of standards to determine gross misconduct for COBRA purposes, Vision Payroll strongly recommends that employers consult with a competent labor law attorney for assistance in deciding if COBRA coverage should be denied because of gross misconduct.

Allied Waste Services of Massachusetts, LLC (Allied Waste) agreed to pay $1,327,567 in additional restitution discovered during an audit required by a previous settlement with the Commonwealth of Massachusetts. In 2009, Allied Waste had reached an agreement to pay restitution of over $404,000 and a $50,000 penalty to settle certain prevailing wage and overtime violations for trash disposal work performed at the Oak Bluffs/Tisbury Transfer Station. At the same time, Allied Waste agreed to an audit of its prevailing wage and overtime calculation for all employees in Massachusetts. According to a press release issued by the office of Massachusetts Attorney General Martha Coakley, Allied Waste cooperated with the Attorney General’s Office throughout the investigation. Due to the complexity of prevailing wage and overtime calculations, Vision Payroll strongly recommends that employers consult with a competent labor law attorney to assure compliance with these laws.

Due to the severe storms and flooding in Massachusetts beginning March 12, 2010, President Barack Obama declared the following counties a federal disaster area: Bristol, Essex, Middlesex, Norfolk, Plymouth, Suffolk and Worcester. Therefore, the Internal Revenue Service (IRS) announced recently that it will waive failure to deposit penalties for employment and excise taxes due after March 11, 2010 and before March 30, 2010 as long as the deposits were made by March 29, 2010. In addition, affected taxpayers will have until May 11, 2010 to file most tax returns. Contact Vision Payroll if you were affected by the severe storms and flooding and need further information on the relief provided by the IRS.