Editor’s Notes

Most states have some version of a “prevailing wage” statute. These laws allow the establishment of minimum compensation levels for workers on publicly funded construction projects and are based on trade and location. The stated purpose of the laws is to attract and retain skilled workers for public projects. The stipulated wage levels also enable union contractors to compete with non-union contractors when bidding public contracts.

Not all workers involved in the construction process are covered by prevailing wage laws. Coverage is usually limited to on-site workers, so parties involved in off-site fabrication or truck drivers delivering materials to a job site may be excluded.

The California legislature amended that state’s law to include the delivery drivers of ready-mix concrete trucks in the statutory protection. The ready-mix concrete industry challenged the amendment, arguing that it violated Equal Protection by affording coverage to ready-mix drivers, but not other delivery truck drivers, and passing those increased costs through to their employers.

A federal appeals court ruled that there were legally relevant factors distinguishing ready-mix drivers from other delivery truck drivers. They are active participants in concrete pours, interacting extensively with other workers at the site. This requires a higher level of skill than simply dropping off materials at the site. And, ready-mix drivers are more likely to be unionized, making them more susceptible to underbidding.

The other case in this issue involved a project owner’s available remedies when a contractor is in material breach of the construction contract. A Florida court ruled that the owner is not limited to the cost of completion, but may seek damages that would restore the owner to its pre-contract financial position.




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