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Frequently asked questions – Off-Site Hauling
Legal Background Regarding Coverage of Off-Site Hauling
Off-the-site hauling is not generally covered work but has been found to be covered work in limited and specific circumstances by the Director of Industrial Relations, the courts and where covered under Labor Code section 1720.3. The following rate setting questions and answers assume that the prevailing wage requirements apply to the hauling work being performed. (For questions concerning the applicability of the prevailing wage requirements to the off-site hauling work, please see the Director's prevailing wage coverage determinations posted at http://www.dir.ca.gov/dlsr/PubWorkDecision.htm).
Actual coverage of workers is determined by coverage decisions and enforcement decisions by the Director of Industrial Relations as well as judicial opinions. These include:
- O. G. Sansone v. Department of Transportation (1976) 55 Cal.App.3d 434
- Williams v. SnSands Corporation (2007) 156 Cal.App.4th 742
Public Works Case No. 99-037, Alameda Corridor Project, A&A Ready Mix Concrete and Robertson's Ready Mix Contract (April 10, 2000) (finding delivery drivers of ready mix suppliers not subject to prevailing wage requirements).
PW Case 2002-016, Materials Hauling - Clear Lake Basin 2000 Northwest Regional Wastewater Treatment Facility Project - Lake County Sanitation District, (8/12/02), (drivers are covered when hauling from a dedicated yard)
Public Works Case No. 2008-027, On-Haul and Off-Haul to and from the Friendly Senior Center-Abatement and Demolition Project-City of Morgan Hill (10/31/08), discussing when off and on hauling is deemed covered work)
04-0180 PWH, Triple E Trucking (11/13/2008), (requiring the hauler himself to engage in immediate incorporation to be entitled to prevailing wages.)
Prevailing Wage Questions and Answers Regarding Off-Site Hauling
Q. Will the new Driver (On/Off Hauling To/From Construction Site) rates replace the Teamster (construction site) rates and the superseded six county Driver determinations as the default rate for off the site hauling as of March 4, 2009?
A. Yes. In the absence of trucking rates for other types of materials or for different types of trucks involving On/Off Hauling To/From the Construction site, the off-the-site rates apply. For covered work that was advertised for bid prior to March 4, 2009, the on-site rate will apply except for the six counties that had an off-site rate (Labor Code section 1773.6). The new On/Off Hauling rates are not applicable to projects advertised for bids prior to March 4, 2009.The date of notice or call for bids also referred to as the bid advertisement date is defined as the date the first notice inviting bids was published in a newspaper of general circulation or promulgated in a legally sufficient manner which results in a contract being awarded with or without competitive bidding (Title 8, California Code of Regulations section 16000).
Q. Will the Driver (On/Off Hauling To/From Construction Site) rates apply to truck drivers operating trucks in addition to dump trucks and ready mix trucks?
A. Yes. The dump truck rates at their minimums will apply to other types of trucks performing off-the-site hauling (to or from a construction site) except for ready mix trucks which have their own prevailing wage determination.
Q. Will the Driver (On/Off Hauling To/From Construction Site) rates apply to drivers when they perform hauling to or away from the job site while working for an on-site contractor?
A. Yes. The off-site hauling rate(s) is the minimum rate of pay required for this type of work. In support of the off-site rate being paid, contractors are required to maintain documentation including the hours worked for each worker regarding the craft, classification or type of work being performed.
Q. What rate (the on-site or the off-site) applies to drivers who pick up materials from a dedicated material supply source that was specified in the construction contract documents?
A. This question will require the Director to determine coverage of the work and the appropriate rate to be paid based on specific facts and circumstances such as the actual location of the dedicated facility and other relevant information. At this time, it is not possible to answer this question in a general manner.
Q. Will the Driver (On/Off Hauling To/From Construction Site) rate(s) apply to drivers who haul refuse from the construction site?
A. Yes. The Driver (On/Off Hauling To/From Construction Site) rate(s) will apply to drivers who haul refuse away from the construction site. See Labor Code section 1720.3; PW Case 2006-017, Off-hauling of Contaminated and Clean Soil - Long Beach Unified School District, Avalon School, (6/26/07), (explaining that off-haul of contaminated soil to a land fill is covered public work under Labor Code section 1720.3); Public Works Case No. 2008-027, On-Haul and Off-Haul to and from the Friendly Senior Center-Abatement and Demolition Project-City of Morgan Hill (10/31/08).
Q. What rate (on-site or off-site) applies to a driver who performs off-the-site hauling for:
- 1. Material supply company?
- 2. For-hire trucking company?
- 3. A construction company who also operates a legally separate and independent material supply company and does not interchange the drivers between the two companies?
A. The answer to all the questions above is the off-site rate but only when the work itself is covered.
Q. What rate (the on-site or the off-site) applies when a driver who works for a construction company who uses the same driver to haul material on the site of construction and also perform work off the site that is covered by prevailing wages?
A. The off-site rate will be the minimum rate of pay for workers employed by contractors and subcontractors when those workers are performing covered off-site work. The on-site activities by these workers would require the on-site rate.
Q. Do the dump truck rates apply to all trucks delivering or picking up materials to and from a construction site irrespective of their size or tonnage, or the material being hauled or the type of truck?
A. The answer is yes until rates for these other types of trucks or sizes or types of material differentials are published as prevailing. Note that mixer truck has its own prevailing wage rate.
Q. What location determines the appropriate rate of pay (job site, material supply source, off-the-site delivery point, employer's off-the-site yard or shop, etc.)?
A. The geographic location of the covered job site determines the county or area rate to be applied.
Q. Does the geographic location of the job site prevail when the driver drives through different counties with different rates?
A. Yes. The rate is determined by the location of the job site.
Q. What Prevailing Wage Rate applies when the driver picks up material from a covered job site in one county and delivers it to another covered job site that has a different county rate?
A. The employer should pay the off-site rate required by the job site where the public works construction contract requires the removal of the material (originating site) to be delivered to the second covered site.
Q. Is an employee driving for an intrastate or interstate trucking company entitled to prevailing wages when performing covered work?
A. Yes. Such drivers are subject to all the prevailing wage requirements including the overtime rates. The Prevailing Wage determinations set forth the overtime rates and requirements but only when the work itself is deemed to be covered. Wage and hour exemptions that may be otherwise applicable are not available for covered public works.
Q. May an employer pay more than the indicated health & welfare, pension, vacation & holiday rates and other such employer payments?
A. Yes, the employer may pay higher rates. The prevailing wage rates are minimums. The employer may pay lower benefit rates than indicated on the determination and transfer the difference to the basic hourly rate. In no case can the total compensation be less than the total hourly rate which includes the total of the basic hourly rate and the employer payments (Labor Code sections 1771 and 1774). There are two caveats: (1) The employer may not pay less than the specified published basic hourly rate (the wage rate). (2) The other employer payments must be legitimate meaning that they must be irrevocably paid to third person or trustee pursuant to a plan, fund or program for the benefit of the employee (Labor Code section 1773.1).