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  • February 15, 2017

    Prevailing Wage Law and Mineral Aggregates and Material Processing

    To properly apply prevailing wage rates and hours, lawyers need to understand the nuances of mineral aggregates and material processing in state highway projects. Carrie Cox provides a starting point and guidance to ensure employers comply with the law.

    Carrie L. Cox

    In order to properly apply prevailing wage rates and hours, it is important to understand the nuances of state highway work in determining what is and is not covered for certain workers – such as for those who work with aggregates and processed materials.

    Knowing When to Apply Prevailing Wage

    As such, it is important to know when to apply prevailing wage in order to properly comply with the law.

    The prevailing wage law regarding rates for both state agency and state highway projects still includes language addressing workers engaged in what is essentially preparing and hauling gravel, cement, fill, and other road materials. See Wis. Stat. § 84.062 (2m) (state highway work) and Wis. Stat. § 16.856 (2m) (for state agency work). In addition, the Wisconsin Department of Transportation (WisDOT) has further specified what is and is not a mineral aggregate for its projects.

    Location, Location, Location

    Workers covered by these sections (laborers, workers, mechanics, and truck drivers) may or may not be subject to prevailing wage rates depending on the location and type of the work performed. If a worker is on-site of a project, they must be paid the prevailing wage rates and hours.

    Carrie Cox Carrie Cox, Marquette 1998, is assistant general counsel with the Wisconsin Department of Transportation, Madison, where she concentrates her practice on transportation issues including, construction, contracting, eminent domain, utilities, and regulatory compliance.

    If a worker is located at or doing work associated with a “commercial establishment fixed in location” and supplying processed or manufactured materials or products “which is not dedicated exclusively or nearly exclusively with the project,” they are not subject to prevailing wage rates or hours. However, workers who go to sources of mineral aggregate and deliver that to the project site, and workers who pick up excavated materials from a project site and transport it away are subject to prevailing wages and hours. See Wis. Stat. § 84.062 (2m)(b) 1 and 2 and Wis. Stat. § 16.856 (2m)(b) 1 and 2.

    Defining ‘Mineral Aggregate’ Important

    Understanding what constitutes mineral aggregate is important to know when to apply prevailing wage rates and hours. The “on-site” and “dedicated exclusively or nearly exclusively” to are fairly easy to manage. Workers at a facility for processing or manufacturing that is not on-site and/or dedicated to a project will not be subject to the prevailing wage rates or hours. However, workers at an off-site material batch plant created solely for a specific highway project are covered under prevailing wage.

    So what is a mineral aggregate?

    The statute defines mineral aggregate as items such as sand, gravel, or stone. Seems simple, but for state highway projects this includes what may look like processed materials because the materials are acted upon before hauling.

    WisDOT defines materials like gravel, sand, and stone that are sorted, screened, and crushed as mineral aggregates as well. However, WisDOT also includes combining recycled concrete with virgin materials and performing the aforementioned actions.

    So, gravel or stone sorted and screened remains mineral aggregate and workers associated with this work remain subject to prevailing wages.

    A Starting Point: WisDOT’s Chart

    WisDOT’s website provides a chart that helps identify when a truck hauling material to a work site is covered under prevailing wage and hour requirements. The website also provides information on what is not a mineral aggregate, and what is considered a dedicated facility under Wis. Stat. §84.062(2m)(b).

    As noted, with respect to work for WisDOT, mineral aggregate is not just the raw material pulled from a pit or quarry. Likewise, graded mineral aggregate material may at first blush appear to be “processed,” but it is not. Conversely, truckers hauling materials from source locations that are not “mineral aggregates,” such as topsoil, dirt, and the like are not subject to prevailing wage rates and hours.

    Understanding those nuances will help you not only comply with the law, but also prepare bids that properly account for these circumstances.

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    The Construction & Public Contract Law Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Mark Schmidt and review Author Submission Guidelines. Learn more about the Construction & Public Contract Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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