Submission Date:
Question:
Are public library systems and public libraries (association, municipal, special district, school district) required to pay prevailing wage? It is highly recommended to pay the prevailing wage for work done using the NY State Aid for Library Construction Program funds. What about other projects - like electrician, snow removal, plowing, and plumbing that do not go out to bid? How does one know if a contract is signed with a vendor - and that vendor decides to subcontract?
Is it dependent upon the 501 (C) status?
Answer:
The "Prevailing Wage Rate" (or "PWR") is a pay equity concept found in Article 8 and Article 9 of the New York State Labor Law.
Article 8 addresses PWR in construction contracts.
Article 9 addresses PWR in service contracts.
Both articles require that workers on projects falling under the law be paid wages and benefits at least equal to those paid on private projects in the local area (or, as the law phrases it, the "prevailing wage").
Now, here's why (I think) the member had to submit the question. Since both Article 8 and Article 9 deal with prevailing wage, one would think they apply to the same type of projects.
But the Labor Law—like its friends the Public Officers Law and the Education Law—has no problem casting a variably wide net over who falls under its different sections and sub-sections.[1]
So, projects governed by Article 8 (construction) won't necessarily be governed under Article 9 (services).
For libraries, this distinction got a lot clearer on January 28th, 2021, with the ruling in the case Matter of Executive Cleaning Services v. NYS Department of Labor.[2]
While ostensibly about a fight over $16,671.57 dollars (plus 6% interest) in alleged wage underpayment by a cleaning service hired by the Ossining Public Library,[3] the ruling is really about the Article 8–Article 9 distinction, and how an entity covered by one might not be covered by the other.
Because the decision turns on the nature of a public library (in the case of Ossining, a school district public library), Executive Cleaning is also a great primer on the chimerical nature of libraries under the law. If you are ready to hang on for some legal jargon, the case does a great job of laying out how a library can fit under one law but not another.[4]
So, with all that as background, what is the answer to the member's question: Are public library systems and public libraries (association, municipal, special district, school district) required to pay prevailing wage?
Contractors working for association libraries are only required by law to pay the PWR for either construction or service if they are using grant money that requires it.
Contractors working for special district, school district, and municipal public libraries only have to pay the PWR for "construction-like labor."
Of course, a library—of any type—can decide to require contractors to pay PWR for just about anything. A requirement like that can be included in an RFP, procurement policy, or vendor contract rider.
To address the rest of the questions:
How does one know if a contract is signed with a vendor - and that vendor decides to subcontract?
Any contract for "construction-like labor" for a non-association library should require that PWR and other requirements of the primary contract apply to any subcontract. While that doesn't guarantee the contractor (or subcontractor) will do the right thing, it at least requires them to do it and to pass the obligation to any subcontractors.
Is it dependent upon the 501 (C) status?
I have learned in this business to "never say never," but the IRS status is not determinative of whether an organization falls under Article 8 or Article 9 of the Labor Law.
And now, for some gratuitous commentary.
I have heard many people comment that a commitment to paying the PWR is regarded as a gold standard of economic justice.
However, for an association library that is not obligated to pay the PWR,[5] it is wise to remember that there can be other ways to assure equitable compensation for those who might be working on a project.
What is important, when in the early planning stages of a project, is to identify how an association library will live up to its stated values with respect to conditions for workers on the job. While one option is certainly to require all contractors to pay the PWR, but there may be other options on the table.[6]
This same notion applies to ALL libraries when it comes to what types of worker conditions to include in service contracts not subject to PWR requirements. If a library decides to not require a contractor (and all subcontractors) to pay the PWR, it can still use its bargaining power to ensure workers providing services to the library are paid a living wage, have a certain level of benefits, and are afforded other considerations.[7]
If a library board finds it to be in the best interests of the library, a commitment of this nature should be included in the library's procurement policy, after which it can be baked into every phase of the contract process from start to finish.
Thank you for an excellent array of questions.
[1] You know what law doesn't do this to lawyers? None of them. There are always exceptions. It's why lawyers always have to double-check their research.
[2] Full citation: Matter of Executive Cleaning Servs. v. New York State Dept. of Labor, Supreme Court of New York, Appellate Division, Third Department, (January 28, 2021) 193 A.D. 3d; 141 NYS 3d 170.
[3] As noted in the ruling, as this saga unfolded, the library took the position that the PWR should apply and filed the complaint with the Department of Labor.
[4] This is also a very helpful case for any library working with a municipal government or school district that refuses to believe the library is a separate and independent entity. "Reflecting its status as a distinct entity," that ruling states, "the Library's Board of Trustees is vested with independent decision-making authority and operational control." BOOM.
[5] Again, some funding may be conditioned on PWR, so pay attention to the details of grants and donations.
[6] For example, in a community with a known dearth of opportunity for young people, there could be added apprenticeship requirements.
[7] For instance, if I was negotiating a contract for private security, I would want to know those workers had access to an employee assistance plan or other mechanism for personal support and managing stress.
