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«August 30,2013 Matthew N. Metz Metz Law Group PLLC 701 Fifth Avenue, Suite 7230 Seattle, WA 98104 Dear Mr. Metz: Thank you for your letter dated May ...»

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STATE OF WASHINGTON

DEPARTMENT OF LABOR AND INDUSTRIES

Prevailing Wage

PO Box 44540 • Olympia, Washington 98504-4540

360/902-5335 Fax 360/902-5300

August 30,2013

Matthew N. Metz

Metz Law Group PLLC

701 Fifth Avenue, Suite 7230

Seattle, WA 98104

Dear Mr. Metz:

Thank you for your letter dated May 1, 2013 in which you requested a determination of the applicability of chapter 39.12 RCW to work you described. The work involves the application of insulation on the Mercer Hall project for the University of Washington, including the loading of the company truck with tools and materials for the project in the morning and the hauling and discarding of debris from the project.

This is a determination of the Industrial Statistician regarding coverage of the referenced work under Washington's prevailing wage laws and is made pursuant to RCW 39.12.015. See the enclosed document, "Prevailing Wage Determination Request and Review Process. " In the situation you describe, insulation workers upon anival at the employer's warehouse unload insulation scraps and garbage from the company's trucks left over from the previous day and place the debris in the dumpster. The workers then load the same truck with the insulation materials they will use that day and drive the truck with the materials to the job site where they will work for most of the day. When they leave the public works job site, the workers load up the trucks with the waste from the day's work and drive back to the warehouse. At the conclusion of the workday, the truck remains loaded with the referenced debris.

You ask whether prevailing wage rates must be paid for the time spent at the warehouse unloading construction site waste from a truck into a dumpster, loading insulation into the trucks, driving to the jobsite, and driving the waste-loaded truck back to the warehouse. Since your scenario refers to "workers" in the plural, this determination will answer your questions with respect to the worker who will drive the truck and any other worker who may be a passenger in the truck. With this in mind, your question has two aspects: (1) whether the work is compensable ("hours worked" for which wages must be paid, see enclosure); and (2) whether the compensation must be at prevailing wage rates.

Matthew N. Metz August 30, 2013 Page 2 of3 Compensable Work Regarding what constitutes "compensable time," Washington's Employment Standards law and rules apply: Time spent driving a company-provided vehicle from the employer's place of business to the job site is considered hours worked. Time spent riding in a company-provided vehicle from the employer's place of business to the job site is not considered hours worked when an employee voluntarily reports to the employer's location merely to obtain a ride as a passenger for the employee's convenience, is not on duty, and performs no work. Time spent driving or riding as a passenger from job site to job site is considered hours worked.

The truck driver worker's compensable time begins from the time of check-in at the warehouse and will include all work performed during the day including the drive time back to the warehouse.

If the passenger worker is directed by the employer to start the work at the warehouse, then even if the worker performs no additional duties in connection with unloading waste from the truck and/or loading supplies, the worker's "compensable time" begins from the time of check-in, or "clock-in" at the warehouse, including the ride to the public works job site. The trip back from the public works job site would also be compensable time.

Work Requiring Prevailing Wage Rates The "compensable work" is also subject to the payment of prevailing wages if the worker is required to unload scraps and other materials from the company's trucks left over from the day before. Prevailing wages are also required if, in preparation for the job, the worker must load specific materials (insulation materials, not the usual tools) into the truck in order to perform the day's work. In that case, the prevailing wage rate would apply to the loading of the materials and continue until all public work ceases for the day. The retum trip, hauling the debris to the employer's place of business remains part ofthe public work for the day, and prevailing wage rates apply. Also, once at the employee's place of business, if the worker must perfOlID any additional work connected with the public work contract, such as unloading or cleaning the truck, that work is also compensable at prevailing wage rates.

When the work performed, whether loading, unloading, or driving, has been determined to be compensable at prevailing wage rates, then the question arises as to which prevailing wage rate(s) will apply. The Insulation Applicator, WAC 296-127-01337, prevailing wage rate would be appropriately applied to all work to insulate floors, walls, partitions, and ceilings which requires prevailing wage compensation and would include the loading and unloading of materials used in performance of such tasks. Insulation of mechanical systems or fire stop work would use the prevailing wage rate for the Heat and Frost Insulator, WAC 296-127-01303, and would include the loading and unloading of materials used in performance of such tasks. However, for the truck driving portion ofthe work, if time records are kept for that portion of the work and the rate is lower than the Insulation Applicator rate, an employer could apply the Truck Driver prevailing wage rate to that portion of the work. Carefully detailed records should be maintained in order to exercise this option.





Matthew N. Metz August 30,2013 Page 3 of3 Prevailing wage questions, particularly those surrounding travel time and work surrounding travel time, are quite fact specific. This determination is based upon the specific information you provided. If that information changes or differs in any in any from how it is described, the answer may also be different.

I appreciate your interest in prevailing wage requirements and this opportunity to provide the detelmination you requested. If you have further questions, please let me know.

Sincerely, L. Ann Selover Industrial Statistician/Program Manager Alm.Selover@Lni.wa.gov (360) 902-5330 Enclosures: ES.C. 2 Policy Prevailing Wage Determination Request and Review Process cc: W. Eric Baisden Elizabeth Smith, Assistant Director for Fraud Prevention and Labor Standards Prevailing Wage Determination Request and Review Process

RCW 39.12.015 is the basis for requesting a determination, since it provides:

All determinations of the prevailing rate of wage shall be made by the industrial statistician of the department of labor and industries.

If you disagree with a determination the industrial statistician provides, WAC 296-127-060(3)

provides for a review process:

(3) Any party in interest who is seeking a modification or other change in a wage determination under RCW 39.12.015, and who has requested the industrial statistician to make such modification or other change and the request has been denied, after appropriate reconsideration by the assistant director shall have a right to petition for arbitration of the determination.

(a) For purpose of this section, the term "party in interest" is considered to

include, without limitation:

(i) Any contractor, or an association representing a contractor, who is likely to seek or to work under a contract containing a particular wage determination, or any worker, laborer or mechanic, or any council of unions or any labor organization which represents a laborer or mechanic who is likely to be employed or to seek employment under a contract containing a particular wage determination, and (ii) Any public agency concerned with the administration of a proposed contract or a contract containing a particular wage determination issued pursuant to chapter 39.12 RCW.

(b) For good cause shown, the director may permit any party in interest to intervene or otherwise participate in any proceeding held by the director. A petition to intervene or otherwise participate shall be in writing, and shall state

with precision and particularity:

(i) The petitioner's relationship to the matters involved in the proceedings, and (ii) The nature of the presentation which he would make. Copies of the petition shall be served on all parties or interested persons known to be participating in the proceeding, who may respond to the petition. Appropriate service shall be made of any response.

If you choose to utilize this review process, you must submit your request within 30 days of the date of the applicable industrial statistician's determination or response to your request for modification or other change. I nclude with your request any additional information you consider relevant to the review.

Direct requests for determinations, and for modification of determinations via email or letter to

the prevailing wage industrial statistician:

L. Ann Selover Industrial Statistician/Program Manger Department of Labor & Industries Prevailing Wage PO Box 44540 Olympia, WA 98504-4540 Ann.Selover@Lni.wa.gov

–  –  –

Elizabeth Smith, Assistant Director Department of Labor & Industries Fraud Prevention and Labor Standards PO Box 44278 Olympia, WA 98504-4278 Elizabeth.Smith@Lni.wa.gov

Direct petitions for arbitration to:

Joel Sacks, Director Department of Labor & Industries PO Box 44001 Olympia, WA 98504-4001 If you choose to utilize this arbitration process, you must submit your request within 30 days of the date of the applicable assistant director's decision on reconsideration (redetermination).

Submit an original and two copies of your request for arbitration to the Director personally, or by mail. The physical address for the Director is 7273 Linderson Way, SW, Tumwater, WA 98501.

WAC 296-127-061 also contains the following provisions regarding petitions for arbitration:

In addition, copies of the petition shall be served personally or by mail upon each of the

following:

(a) The public agency or agencies involved, (b) The industrial statistician, and (c) Any other person (or the authorized representatives of such person) known to be interested in the subject matter of the petition.

(2) The director shall under no circumstances request any administering agency to postpone any contract performance because of the filing of a petition. This is a matter which must be resolved directly with the administering agency by the petitioner or other party in interest.

(3) A petition for arbitration of a wage determination shall:

(a) Be in writing and signed by the petitioner or his counsel (or other authorized representative), and (b) Identify clearly the wage determination, location of project or projects in question, and the agency concerned, and (c) State that the petitioner has requested reconsideration of the wage determination in question and describe briefly the action taken in response to the request, and (d) Contain a short and plain statement of the grounds for review, and (e) Be accompanied by supporting data, views, or arguments, and (f) Be accompanied by a filing fee of $75.00. Fees shall be made payable to the department of labor and industries.

–  –  –

This policy is designed to provide general information in regard to the current opinions of the Department of Labor & Industries on the subject matter covered. This policy is intended as a guide in the interpretation and application of the relevant statutes, regulations, and policies, and may not be applicable to all situations. This policy does not replace applicable RCW or WAC standards. If additional clarification is required, the Program Manager for Employment Standards should be consulted.

This document is effective as of the date of print and supersedes all previous interpretations and guidelines. Changes may occur after the date of print due to subsequent legislation, administrative rule, or judicial proceedings. The user is encouraged to notify the Program Manager to provide or receive updated information. This document will remain in effect until rescinded, modified, or withdrawn by the Director or his or her designee.

1. The department has the authority to investigate and regulate "hours worked" under the Industrial Welfare Act.

"Hours worked," means all hours during which the employee is authorized or required, known or reasonably believed by the employer to be on duty on the employer's premises or at a prescribed work place. An analysis of "hours worked" must be determined on a case-by-case basis, depending on the facts. See WAC 296-126-002(8). See Administrative Policy ES. C. 1.

The department's interpretation of "hours worked" means all work requested, suffered, permitted or allowed and includes travel time, training and meeting time, wait time, on-call time, preparatory and concluding time, and may include meal periods. "Hours worked" includes all time worked regardless of whether it is a full hour or less. "Hours worked" includes, for example, a situation where an employee may voluntarily continue to work at the end of the shift.

The employee may desire to finish an assigned task or may wish to correct errors, prepare time reports or other records. The reason or pay basis is immaterial. If the employer knows or has reason to believe that the employee is continuing to work, such time is working time.

An employer may not avoid or negate payment of regular or overtime wages by issuing a rule or policy that such time will not be paid or must be approved in advance. If the work is performed, it must be paid. It is the employer's responsibility to ensure that employees do not perform work that the employer does not want performed.

–  –  –

This policy is designed to provide general information in regard to the current opinions of the Department of Labor & Industries on the subject matter covered. This policy is intended as a guide in the interpretation and application of the relevant statutes, regulations, and policies, and may not be applicable to all situations. This policy does not replace applicable RCW or WAC standards. If additional clarification is required, the Program Manager for Employment Standards should be consulted.



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