Truck Drivers Hauling Material Between a Turnpike
Construction Site and a Borrow Pit Adjacent to the Project
Are Entitled to be Paid the Prevailing Wage
February 2012 by Andrew Levy
The Pennsylvania Commonwealth Court recently clarified the scope of coverage under the
Pennsylvania Prevailing Wage Act with respect to truck drivers and other workers whose work
in relation to a prevailing wage project extends beyond the actual project boundaries.
Contractors and subcontractors performing work on state or federally funded construction
projects must pay all "workmen" not less than the prevailing minimum wages for all hours
worked. Payment of the prevailing wage on federally funded projects is governed by the federal
Davis-Bacon Act; on state funded projects, the Pennsylvania Prevailing Wage Act ("Act")
applies. Because of the specific provisions of the federal Act and the Pennsylvania Act, in some
cases the applicable state and federal prevailing rates can differ, as can the specific rules
regarding coverage and payment of the prevailing wage. In Bockelman Trucking v.
Pennsylvania Prevailing Wage Appeals Board, the Commonwealth Court of Pennsylvania
interpreted the Pennsylvania Act in a manner consistent with the federal Davis-Bacon Act with
respect to the important issue of whether workers whose work activities extend beyond the
actual project site are entitled to the prevailing minimum wage.
The disputed issue in Bockelman was whether truck drivers were entitled to payment of the
prevailing wage where they were subcontracted to haul materials between a Pennsylvania
Turnpike construction site in Lawrence and Beaver Counties and a dump or borrow pit that was
located near the project site . Due to the location of the construction site and the borrow pit, to
travel from one to the other, the drivers had to first drive several miles eastbound on the
Turnpike to the next exit, reenter the westbound lane and drive several miles past the site
before turning around again and driving eastbound to the borrow pit. The prevailing minimum
wages in Lawrence and Beaver Counties for the particular class of truck drivers was $32.74 per
hour; the truck drivers who performed this work alleged, however, that they were paid only
$12.00 per hour.
In analyzing the drivers’ claims, the Commonwealth Court noted that the drivers were entitled to
prevailing wage payment if they fit within the definition of "workmen." The Act defines a
"workman" as follows:
[A] "workman" includes laborer, mechanic, skilled and semi-skilled laborer and apprentices
employed by any contractor or subcontractor and engaged in the performance of services
directly upon the public work project, regardless of whether their work becomes a component
part thereof, but does not include material suppliers or their employees who do not perform
services at the job site. (emphasis added)
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43 P.S. § 165-2(7). The primary disputed issue in the case was whether the truck drivers were
performing work "directly upon the public work project" when they were hauling materials
between the construction site and the borrow pit. Notwithstanding the fact that the truck drivers
needed to leave the section of the Turnpike under construction in order to get to and from the
borrow pit, the Commonwealth Court concluded that the pit was part of the project site because
it was adjacent to the area of the Turnpike under construction and used exclusively for the
project.
In reaching this conclusion, the Commonwealth Court adopted the same legal standards
established under federal regulations enacted pursuant to the Davis-Bacon Act. Under these
regulations, the site of work is defined as follows:
(1) The site of work is the physical place or places where the building or work called for in the
contract will remain; and any other site where a significant portion of the building or work is
constructed provided that such site is established specifically for the performance of the contract
or project;
(2) Except as provided in paragraph (l)(3) of this section, job headquarters, tool yards, batch
plants, borrow pits, etc., are part of the site of the work, provided they are dedicated exclusively,
or nearly so, to performance of the contract or project, and provided they are adjacent or
virtually adjacent to the site of the work . . .
29 C.F.R. § 5.2(l). Adopting this definition, the Commonwealth Court determined that the site of
work includes "secondary sites, other than the project's final resting place, if they are dedicated
to the covered project and are adjacent or virtually adjacent to a location where the . . . work is
being constructed." Because the borrow pit was adjacent or virtually adjacent to the Turnpike
reconstruction site and because it was dedicated exclusively or nearly exclusively to the
Turnpike project, the Court held that the work hauling materials between the project and the
borrow pit was covered work under the Act. It is important to note that, in reaching this
conclusion, the Commonwealth Court disregarded the contract document’s description of the
borrow pit as an "off-site disposal facility." As such, it appears that such language in the contract
documents with the letting agency will not serve to limit the scope of coverage for workmen
under the Act.
Ultimately, this significant decision serves to clarify the circumstances under which truck drivers
and others who perform work at locations that are outside the actual boundaries of a prevailing
wage job site are entitled to payment of prevailing wage. This is an area that is well developed
under Davis-Bacon, and the Commonwealth Court has now adopted these federal standards
when interpreting prevailing wage requirements under Pennsylvania state law. In light of the
Bockelman case, the applicability of the Pennsylvania Act can be summarized as follows:
(1) Materialmen and suppliers who do no more than drop off at the project site are not covered
workmen;
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(2) Truck drivers are covered workmen when they haul materials within the project site or
to/from an off-site location that is:
a) dedicated exclusively, or nearly exclusively, to the performance of the project; and
b) adjacent or virtually adjacent to the site of work.
(3) These same standards apply to other employees who work at nearby tool yards, batch
plants, and fabrication shops. If the work location is dedicated to the project and adjacent or
virtually adjacent, then work at such locations will be covered.
As can be seen in the Bockelman case, compliance with the prevailing wage laws can involve
complex legal and factual issues. While the Bockelman decision addressed the issue of
employee coverage under the Pennsylvania Prevailing Wage Act, issues relating to
classification of work (i.e., which prevailing rate to pay) and proper crediting of fringe benefits
are often also of significant concern to contractors who perform work on state or federally
funded construction projects. The attorneys in the Labor & Employment Group at McNees
Wallace & Nurick are experienced in assisting contractors in efforts to comply with applicable
prevailing wage requirements.
© 2012 McNees Wallace & Nurick LLC
Employer Alert is presented with the understanding that the publisher does not render specific
legal, accounting or other professional service to the reader. Due to the rapidly changing nature
of the law, information contained in this publication may become outdated. Anyone using this
material must always research original sources of authority and update this information to
ensure accuracy and applicability to specific legal matters. In no event will the authors, the
reviewers or the publisher be liable for any damage, whether direct, indirect or consequential,
claimed to result from the use of this material.
© 2012 McNees Wallace & Nurick LLC
This document is presented with the understanding that the publisher does not render specific legal, accounting or other professional
service to the reader. Due to the rapidly changing nature of the law, information contained in this publication may become outdated.
Anyone using this material must always research original sources of authority and update this information to ensure accuracy and
applicability to specific legal matters. In no event will the authors, the reviewers or the publisher be liable for any damage, whether direct,
indirect or consequential, claimed to result from the use of this material.
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