Current through Register Vol. 49, No. 13, September 23, 2024
Subpart
1.
In general.
For purposes of parts
5200.1105 and
5200.1106 and Minnesota Statutes,
sections
177.41
to
177.44,
the prevailing wage rate which, for the purpose of all public works highway
projects funded in whole or in part by state funds only, includes truck rental
rates, must be paid for work under the contract.
Subp. 2.
Work under the
contract.
A. Except as provided in
subpart
4, work under the contract
means all construction activities associated with the public works project,
including any required hauling activities on the site of or to or from a public
works project and work conducted pursuant to a contract as defined by item B,
regardless of whether the construction activity or work is performed by the
prime contractor, subcontractor, trucking broker, trucking firms, independent
contractor, or employee or agent of any of the foregoing entities, and
regardless of which entity or person hires or contracts with another. The term
"work under a contract" has the same meaning.
B. "Contract" means the written instrument
containing the consideration and the terms of agreement between the prime
contractor and the contracting agency for the construction of all or a part of:
(1) a highway pursuant to Minnesota Statutes,
sections
161.32
and
177.44;
(2) a public works project pursuant to
Minnesota Statutes, section
177.43
and chapter 16B; or
(3) any public
building or public works financed in whole or in part with state funds pursuant
to Minnesota Statutes, sections
177.41
to
177.44.
Contract includes project proposals, plans, and
specifications, and all requirements for labor, equipment, and materials found
in such proposals, plans, and specifications.
C. "Prime contractor" means an individual or
business entity that enters into a contract as defined in item B with the
contracting agency.
D. "Contractor"
means an individual or business entity that is engaged in construction or
construction service-related activities including trucking activities either
directly or indirectly through a contract as defined by item B, or by
subcontract with the prime contractor, or by a further subcontract with any
other person or business entity performing work under the contract.
Subp. 3.
Work considered to
be under a contract.
Without limiting the application of parts
5200.1105 and
5200.1106 to other situations, the
following are considered to be work under the contract.
A. Work performed by employees of a
contractor or subcontractor that operates an asphalt or concrete plant, that
was moved into a gravel pit, borrow pit, or other location not on the project,
primarily to serve public works projects is considered work under the contract
including the contractor's employees loading the equipment hoppers with
materials obtained from the pit regardless of whether the pit meets the
definition of commercial establishment.
B. The following hauling activities are
included in hours worked and considered work under the contract for purposes of
payment of prevailing wages and payment of the truck rental rate:
(1) the hauling of any or all stockpiled or
excavated materials on the project work site to other locations on the same
project even if the trucks leave the work site at some point;
(2) the delivery of materials from any
facility that does not meet the requirements of a commercial establishment to
the project and the return haul to the starting location either empty or
loaded;
(3) the delivery of
materials from another construction project site to the public works project
and the return haul empty or loaded is considered work under the contract.
Construction projects are not considered a commercial establishment;
(4) the hauling required to remove any
materials from the public works project to a location off the project site and
the return haul if empty or if loaded from other than a commercial
establishment;
(5) the delivery of
materials or products by trucks hired by a contractor, subcontractor, or agent
thereof, from a commercial establishment; and
(6) delivery of sand, gravel, or rock, by or
for a commercial establishment, which is deposited "substantially in place,"
either directly or through spreaders from the transporting vehicles is work
under the contract. In addition, the return haul to the off-site facility empty
or loaded is also considered work under the contract.
Subp. 4.
Work not considered
to be under a contract.
Without limiting the application of parts
5200.1105 and
5200.1106 to other situations, the
following work is not considered to be work under a contract:
A. the processing or manufacturing of
materials or products by or for a commercial establishment;
B. the work performed by employees of the
owner or lessee of a gravel pit or borrow pit that is a commercial
establishment and that performs work in conjunction with a public works project
by adding value to the sand, gravel, or rock contained in or delivered to the
pit through the use of screening, washing, or crushing machines. This applies
even if the machines are portable. This does not include the employees
described in subpart
3, item A;
C. the delivery of processed or manufactured
goods to a public works project by the employees of a commercial establishment
including truck owner-operators hired by and paid by the commercial
establishment, unless it is the delivery of mineral aggregate that is
incorporated into the work under the contract by depositing the material
substantially in place; or
D.
multiple site hauling operations include secondary hauling activities in
addition to the hauling of materials on and off the public works project in
order to complete the truck's round trip haul. The hauling of materials or
products between these secondary off-site facilities as part of a multiple site
hauling operation is not considered work under the contract as long as the time
spent hauling between the secondary sites is properly documented in the
trucking records and the time spent hauling on and off the project is properly
compensated as required in subpart
3.
Subp. 5.
Commercial establishment,
exceptions, definitions.
For purposes of parts
5200.1105 and
5200.1106 and Minnesota Statutes,
sections
177.41
to
177.44,
the following terms have the meanings listed.
A. "Laborer or mechanic" means a worker in a
construction industry labor class identified in or pursuant to part
5200.1100.
B. "Mineral aggregate" is sand, gravel, or
crushed stone or rock, or earthen material suitable for roadway development, or
mixtures of these naturally occurring substances with recycled materials,
suitable for the base or shoulder of a highway or heavy project used to compose
the shoulder, or support bituminous or concrete pavement, or used as a final
gravel road surface. Mineral aggregate specifically does not include
screenings, slag, riprap, recycled concrete and bituminous materials, ready-mix
concrete, bituminous concrete, asphalt, mastic, mortar, plaster, macadam, and
other similar processed or manufactured materials or products. Additionally,
mineral aggregate does not include materials such as clay, topsoil, fill, dirt,
silt, boulders, wall stone, loam, gumbo, loess, peat, muck, hardpan, or other
similar soils or mixed earth.
C.
"Incorporated into the work under the contract by depositing the material
substantially in place" means the mineral aggregate is deposited on the project
site directly or through spreaders where it can be spread from or compacted at
the location where it was deposited. As used in this part, "depositing
substantially in place" has the same meaning.
D. To be a "fixed place of business," a
commercial establishment must serve the government project from a location from
which it served the public prior to and at the time of advertisement of the
public works contract and that has sufficient utilities and equipment to serve
the public upon demand.
E.
"Regularly supply" includes supply by a commercial establishment that is closed
on a seasonal basis.
F. The
determination of whether a facility is a "commercial establishment" is made on
a location-by-location basis and on a product-by-product basis, not on a
businesswide basis. For purposes of parts
5200.1000 to
5200.1120 and Minnesota Statutes,
sections
177.41
to
177.44,
production of mineral aggregate is considered production of one product.
Construction projects are not considered commercial establishments. A
"commercial establishment" is a business entity that has not set up at the
location from which deliveries are made primarily to serve public works
projects and, prior to and at the time of advertisement of the public works
contract, it:
(1) owned or leased the land on
which it operates;
(2) possessed
business records indicating that sales from the location from which deliveries
are made are for other than the contracting agency's public works
contracts;
(3) advertised the
availability of material for sale to the general public from the location and
had facilities available for effecting sales at the location; and
(4) has acquired all necessary permits to
operate from the location, and met all legal obligations of state and local
regulations to excavate soils, sand, gravel, or rock for the purpose of
receiving something of value for the product.
Subp. 6.
Prohibited payment
practices.
The contractor, subcontractor, trucking broker, or other
person making payment to an employee laborer, mechanic, worker, or truck
owner-operator may not accept a rebate for the purpose of reducing or otherwise
decreasing the value of the compensation paid.
Subp. 7.
Trucking definitions.
The following terms have the meanings given them for the
purpose of parts
5200.1105 and
5200.1106 and Minnesota Statutes,
sections
177.41
to
177.44.
A. "Independent truck owner-operator" is an
individual, partnership, or principal stockholder of a corporation who owns or
holds a vehicle under lease and who contracts that vehicle and the owner's
services to an entity which provides construction services to a public works
project. In addition, an owner and operator of a vehicle that is licensed and
registered as a truck, tractor, or truck-tractor by a governmental motor
vehicle regulatory agency is an independent contractor, not an employee, only
if each of the following factors are significantly present:
(1) the individual, partnership, or
corporation owns the equipment or holds it under a lease arrangement;
(2) the individual, partnership, or
corporation is responsible for the maintenance of the equipment;
(3) the individual, partnership, or
corporation bears the principal burden of the operating costs, including fuel,
repairs, supplies, vehicle insurance, and personal expenses while on the road,
but not including brokerage fees;
(4) the owner drives the equipment;
(5) the owner determines the details and
means of performing the services in conformance with regulatory requirements,
operating procedures, and specifications of the entity with which the
individual or corporation contracts; and
(6) the individual or corporation enters into
a legally binding agreement that specifies the relationship to be that of an
independent contractor and not that of an employee.
B. "Trucking firm" is any legal business
entity that owns more than one vehicle and hires the vehicles out for services
to brokers or contractors on public works projects.
C. "Trucking broker" is an individual or
business entity, the activities of which include, but are not limited to:
(1) contracting to provide trucking services
in the construction industry to users of such services;
(2) contracting to obtain such services from
providers of trucking services;
(3)
dispatching the providers of the services to do work as required by the users
of the services;
(4) receiving
payment from the users in consideration of the trucking services provided;
and
(5) making payment to the
providers for the services.
D. "Own" and "operate" have the following
meanings and apply to independent truck owner-operators and trucking firms. The
notation "truck owner-operator" for the purposes of this part will apply to
both the independent owner-operator and trucking firms unless otherwise
defined:
(1) "Own" means to have a legal and
rightful title to the vehicle or to have an approved lease on the
vehicle.
(2) "Operate" means the
owner either physically drives the vehicle or hires another to physically drive
the vehicle but maintains the right to direct the day-to-day operations of the
vehicle.
Subp.
8.
Trucking provisions.
A. Independent truck owner-operators or the
owner-driver of a trucking firm are not required to be paid the truck rental
rate for:
(1) time spent repairing or
maintaining, or waiting to repair or maintain, the truck owner-operator's
equipment, except that repair, maintenance, or time spent waiting to load or
unload which is attributable to the fault of the broker, contractor, agent
thereof, or an employee of such entities, must be included in the hours worked
and paid the hourly truck rental rate; and
(2) time spent correcting work that was not
performed according to the prime contract that can be directly attributed to
the negligence of the truck owner-operator.
B. Employees of a trucking firm must always
receive the appropriate prevailing wage rate for any work performed under the
contract.
C. The owner of a
trucking firm may either drive the vehicles or hire employees to drive the
vehicles. If the owner drives the vehicle, then the truck hire is subject to
the truck rental rates. If the owner hires an employee to drive the vehicle,
the truck hire is subject to the truck rental rates and the employee driver is
subject to the appropriate prevailing wage rate. These provisions apply
regardless of who owns any trailer being pulled by the truck.
Subp. 9.
Required
records.
A. Upon agreement of a
contractor or trucking broker with an independent truck owner-operator to
perform work under the contract, the contractor or broker must keep the
following records for a period of at least six years following the payment for
services:
(1) name, address, and social
security number of the truck owner-operator;
(2) name, address, and phone number of the
truck owner-operator's business and federal tax identification
number;
(3) time period covered by
the agreement between the truck owner-operator and the broker or
contractor;
(4) date and amount of
each payment to the truck owner-operator, and for each payment:
(a) number of hours the truck owner-operator
performed work under the contract, not including hours excluded under subpart
7;
(b) type of trucking equipment used for each
job by the truck owner-operator and if leased, the name and address of the
individual or business entity which owns the equipment;
(c) type of services performed;
(d) hourly truck rental rate used to
calculate the minimum payment due; and
(e) an itemization of any deductions from the
gross amount payable to the truck owner-operator;
(5) a copy of the owner's certificate of
insurance; and
(6) a copy of the
vehicle/truck registration.
The contractor or broker must also keep the same records for
owner-drivers of trucking firms working on the public works project unless the
owner-drivers' information is submitted along with the employee information to
a contracting agency as listed under subpart
10.
B. Records required to be kept by
item A and other similar records necessary to determine compliance with
Minnesota Statutes, sections
177.41
to
177.44,
as determined by the commissioner of the department of transportation or the
department of labor and industry, must be provided upon request accompanied by
a certification form approved by the requesting department.
Subp. 10.
Required employee
records.
Records pertaining to the proper payment of employees
including, but not limited to, fringe benefit documentation, time cards,
payroll ledgers, check registers, and canceled checks will be made available on
request from the department for further review to determine if the employee was
paid according to this part and Minnesota Statutes, sections
177.41
to
177.44.
If the commissioner of the department of transportation or the department of
labor and industry requests any or all of the following information, the
contractor, subcontractor, or trucking firm shall submit the following
information to the department together with any certification forms approved by
the requesting department:
A. name,
address, and social security number of the employee;
B. the classification of work performed
defined by part
5200.1100, master job
classification;
C. the hours worked
per day and per week;
D. legal
deductions made from the employee's check;
E. contract information regarding the public
works projects worked on by the employee;
F. hourly rate of pay, including any fringe
benefit information deemed necessary to determine if the proper prevailing wage
rate was paid;
G. project gross
amount earned;
H. weekly gross and
net amount of payroll check; or
I.
in the case of the owner-driver, information described in items A to E shall be
submitted along with the hourly truck rental rate paid to the
owner-driver.
Subp. 11.
Effective date.
Parts
5200.1105 and
5200.1106 are effective June 25,
2001. Part
5200.1106 is effective for all
projects as described in part
5200.1106, subpart
2, item B, that are
advertised for bid on and after June 25, 2001. The new truck rental rates to be
issued under part
5200.1105 are effective for all
projects as described in part
5200.1106, subpart
2, item B, that are
advertised on and after the publication in the State Register of the notice of
certification of the truck rental rates.
Statutory Authority: MS s
175.171;
177.41
to
177.44
