The construction industry has some of the highest rates of state and federal overtime violations. Contractors, subcontractors, project supervisors, and other employers routinely cheat construction workers out of the wages they earn, with many workers not even aware that they are entitled to more pay. Although employees in the construction industry have the right to overtime, those working on government projects enjoy even more protections. If you’re a construction worker and want to know whether you should be paid overtime, we can help.
Federal Overtime and the Construction Industry
Construction workers in both the private and public sectors are entitled to overtime under the Fair Labor Standards Act (FLSA). “Construction” includes manual-labor workers who are in the following industries:
- New construction (e.g. of homes)
- Repair and renovation of existing commercial or residential structures
- Roadway and bridge construction
- Water well drilling
- Installation of flooring
A construction business must have at least two employees and have an annual gross sales volume of at least $500,000 to fall under the FLSA. Individual state laws may apply even more broadly. In essence, almost all construction businesses will be required to follow state and federal overtime rules.
Overtime Requirements for Construction Workers
A construction worker must be paid overtime, also known as time and a half, for any work over 40 hours during a work week. “Time and a half” means 1.5 times the worker’s regular rate of pay, which itself must be at least the federal minimum wage. Many states and cities have enacted even stronger protections with respect to overtime and minimum wage. Whenever there is a difference between state and federal law, the one that is more beneficial to the worker prevails.
Common Ways That Contractors and Other Employers Violate Overtime Rules
There are overtime violations in every industry, and each one has unique ways in which employers try to deny their employees their wage and hour rights. Within construction, contractors and others routinely use some of the following schemes to cheat workers out of overtime:
Bi-weekly pay. Some employers will only pay overtime once a worker has reached 80 hours over the course of two weeks. They, therefore, expand the seven-day work week to 14 days and 80 hours. This is illegal under the FLSA; every work week must stand on its own – and overtime paid for all hours over 40 in each work week.
Misclassifying employees as independent contractors. This is very common in construction. If the company you work for controls the time, place, and manner of your work, you are not an independent contractor – you are an employee. Even if you signed a contract that labels you an independent contractor, if the company exerts substantial control over your work, you are an employee.
Paying a day rate. Another common practice in the construction industry is to pay a worker a flat day rate, regardless of the number of hours worked. However, day rate workers are not exempt from overtime, so the law requires that any hours above 40 during a work week must be compensated as time and a half.
“Off the clock” work. Many employers cheat their employees by calling the work they do “off the clock.” On a construction site, this may include failing to pay workers for downtime, rain delays, working through lunch or other breaks or time spent working before or after a shift.
Automatic meal break deductions. Employers can generally permit an unpaid meal break as long as the employee is free of all work duties during that time. But some construction employers automatically deduct meal breaks from workers’ wages, regardless of whether they actually take it. If an employee works during a “break,” the employee must be compensated and the time must be included when calculating overtime pay.
Unpaid travel. Employers usually do not have to pay a worker for time spent traveling to work at the start of the day and then home at the end of the day. However, in construction, it is common for workers to travel between different job sites or to and from a job site to a shop or other place to get materials. This sort of travel is part of the work and should be paid.
“Comp time” in lieu of overtime. Instead of paying cash to their workers for overtime, some employers use “comp time,” which means giving employees time off. It is illegal for non-governmental employers to pay a worker anything other than wages for their overtime hours.
The Prevailing Wage: What To Know About Work on Government Projects
A different and somewhat stricter overtime rule applies to those who work on federally financed projects or on projects in which the federal government has provided assistance with financing. Under the Davis-Bacon Act and Service Contract Act, workers on such projects must generally be paid a “prevailing wage rate.” Many state and local governments have similar rules.
A prevailing wage is the hourly rate of wage and benefits that is paid to other, similarly employed workers in a given geography. It can be thought of as the average wage paid to workers who perform similar duties in the same area. The point of using the prevailing wage standard is to ensure that federal dollars do not undercut local wages and benefits, which could trigger a race to the bottom among publicly funded construction contractors.
Prevailing wages are often higher than a construction worker’s regular hourly wages on non-government and non-government-funded projects. They may even be higher than the statutory minimum wage, even in states and localities which set a rate far higher than the federal $7.25/hour rate. That’s because prevailing rates require wages and benefits that are in line with market conditions, which tend to be far higher than minimum standards fixed by law.
For example, in Chesapeake County, Virginia, construction contracts entered into or extended after January 30, 2022, must include the pay rate of at least $16.20/hour. This covered work in sewer and water lines and is higher than the $12.00/hour minimum wage. Under a rate set in 2021 in Worcester, Massachusetts, electricians were required to be paid as much as $70.83/hour, which included pay for health insurance and pensions. The current minimum wage in Massachusetts is $15.00/hour.
If your prevailing wage is higher, then your overtime pay will be as well. Check with our experienced legal team to see if your work qualifies for compensation at a prevailing wage rate, or if you believe you have been paid less than the required prevailing wage for your trade.
Protecting the Rights of Construction Workers Nationwide
At The Lore Law Firm, we serve workers in every industry to ensure they are compensated fairly and in accordance with state and federal requirements. If you have questions about your right to overtime as a construction worker, we have answers. Connect with us today by filling out our free and confidential client intake form.