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NYC Prevailing Wage Law Loophole Cheats School Custodians of $8k Annually

The New York City Council is expected to weigh in on the city’s employment practices as they pertain to school district cleaners and other custodial employees.
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The problem, say fair pay advocates for the workers, is that some custodial employees are hired to work as “custodial engineers” for the public school district, as opposed to “private contractor custodians,” who are hired by the city. The former are paid $19.72 hourly, while the latter are compensated $23.85 an hour.

That difference breaks down to approximately $8,000 annually, and this is despite the fact these workers essentially do the same jobs at the same schools and sometimes are even working on the exact same block.

The reason for the disparity? It’s a loophole in the bureaucracy. Cleaning employees who work as custodial engineers are exempt from prevailing wage laws, while those hired as independent contractors are paid according to prevailing wage laws.

New York prevailing wage law is required by the state to be applicable for construction and building service workers, and schedules are set at rates tending to exceed average wages for similar positions in the NYC metro area.

The law applies to all private contractors awarded a public contract for maintenance or construction of a public project.

Some of the specific positions to which the law can apply:

  • Carpenters
  • Boilermakers
  • Electricians
  • Office cleaners
  • Laborers
  • Engineers
  • Security guards
  • Truck drivers
  • Refuse removers

However, it’s worth noting the process for determining prevailing wage is neither transparent nor straightforward. The standard for each job is supposed to reflect the wage level set by local collective bargaining agreements with at least one-third of trade union memberships in each jurisdiction. Still, there isn’t a lot of existing information in the public records regarding how certain titles are determined or which collective bargaining agreements are used as the basis for the wage determinations.

Prevailing wage laws also govern rules for overtime and fringe benefits, which again, tend to exceed what other local professionals in the same industry might expect. But lawmakers may not have anticipated workers putting in hours side-by-side, doing the same jobs for unequal pay.

The 14 percent bump in wages for private contracting school cleaners came last year, according to the Daily News. It affected about 600 workers, which was a fraction of the total 4,200 custodians for the Department of Education.

Those who work directly for the city say they should be compensated the same rate as those in the private sector. Compounding matters is the fact that most were on a wage freeze for six to seven years. Those kind of stagnant wages combined with the pay gap have many city cleaners disgruntled.

A complaint was filed with the Controller, but no change was implemented. Last November a collective bargaining agreement resulted in the first pay increase for city workers in years, but the disparity in pay still makes city workers bristle.

While city council probably isn’t legally compelled to take action, it might in the interest of fairness.

For individuals who believe they should be getting paid prevailing wages but are not, consultation with an experienced wage-and-hour law attorney is the best course of action.

The Law Offices of Ira S. Newman provides employment litigation representation in New York City, Long Island, Great Neck and throughout the area. Call 516-487-7375 or send us an e-mail.

Additional Resources:
Public school cleaners cheated out of fair pay due to loophole in state labor rules: union officials, Feb. 1, 2015, By Ben Chapman, New York Daily News
More Blog Entries:
New York City’s Paid Sick Leave Law Protects Workers, Sept. 9, 2014, New York Prevailing Wage Lawyer Blog