Judges: STEPHEN F. DEAN
Agency: Agency for Workforce Innovation
Latest Update: Dec. 20, 1978
Summary: Contractor was found not to have paid prevailing wage.
78-1283.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RICHARD E. FISHER, )
)
Petitioner, )
)
vs. ) CASE NO. 78-1283
) ACCO MECHANICAL CONTRACTORS, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
This case was heard pursuant to notice in the Conference Room, Department of Health and Rehabilitative Services, 2701 Lake Avenue, West Palm Beach, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on a claim filed by Richard E. Fisher against Acco Mechanical Contractors, Inc. that Acco had failed to pay the prevailing wage as required by Section 215.19, Florida Statutes.
Evidence was presented on behalf of claimant substantiating the fact that he had been employed by Acco Mechanical Contractors, Inc. in the capacity of a plumber in the construction of the regional juvenile detention facility built under the contracting authority of the Department of Health and Rehabilitative Services. The contract price exceeded $5,000.00, and was subject to the provisions of Section 215.19, supra. The claimant further established that a prevailing wage was established by the Department of Commerce for plumbers in the amount of $10.07 per hour. The claimant introduced additional evidence regarding the number of hours which he had worked for the employer and the wage paid. The employer presented evidence concerning the number of hours the claimant had worked and the wage paid for those hours. The employer asserted certain legal defenses against the claim.
The factual question presented is how many hours the employee worked and the wage paid the employee, and what if any, difference exists between the wage paid the employee and the prevailing wage.
APPEARANCES
For Petitioner: Dewey H. Varner, Jr., Esquire
Culp and Fisher
3003 South Congress Avenue Palm Springs, Florida 33461
For Respondent: L. Byrd Booth, Jr., Esquire
Post Office Drawer 11089
Fort Lauderdale, Florida 33339
FINDINGS OF FACT
Acco Mechanical Contractors, Inc. was a subcontractor in the construction of the regional juvenile detention center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services.
The contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and pursuant to Section 215.19(1)(b), Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project.
The prevailing wage established for plumbers on this project was $10.07 per hour.
During the course of this project, Acco Mechanical Contractors, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law.
Between January 7, 1978 and May 20, 1978 Richard Fisher was employed by Acco Mechanical Contractors; Inc. on this project as a plumber. During this time Fisher was paid at the rate of $6.50 per hour for regular time and $9.75 per hour for overtime.
The difference between the amount paid the Petitioner for regular time hours worked and the prevailing wage is $3.57 and the difference between the amount paid the Petitioner for overtime and the prevailing wage is $5.35 per hour.
The Respondent also controverts the number of hours asserted to have been worked by Fisher. The Respondent asserts in its hearing brief that Fisher worked 459 regular hours and 50 overtime hours. The claim presented by Fisher indicated that he worked 512 regular hours and 50 overtime hours. Exhibit 8 reflects that Fisher worked 459 regular hours and 55 overtime hours. Exhibit 8 further reflects that Fisher received $6.50 per hour for regular time worked and
$9.75 per hour for overtime worked. The prevailing wage rate established by the division was $10.07 per hour. The difference between the wage paid Fisher for regular time hours and the prevailing wage was $3.57. The difference paid Fisher between time and a half computed on the prevailing wage and time and a half paid Fisher is $5.35 per hour. The amount Fisher was underpaid is equal to the sum of the regular hours worked (459) times $3.57 end the overtime hours worked (55) times $5.35, or a total of $1,941.13.
The Petitioner has complied with the provisions of Section 215.19(3)(a)1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid for said hours. Said affidavit was filed within the time prescribed by statute.
Pursuant to Section 215.19(3)(b), Florida Statutes, the Department of Health and Rehabilitative Service is presently withholding $2,322.35 from Acco Mechanical Contractors, Inc. while awaiting the decision in this administrative proceeding.
CONCLUSIONS OF LAW
The Petitioner has established his claim for the prevailing wage pursuant to the provisions of Section 215.19, Florida Statutes.
The Respondent has argued that the prevailing wage rates adopted by the division are not based on a survey as required by statute, but are based on the union negotiated scale with the exception of Hillsborough County where the division has conducted a survey. The Respondent argues that this is a denial of equal protection. The argument by the Respondent that the agency failed to properly adopt prevailing wage rates has been considered by the appellate court in another case and the process by which the wage rates are adopted by the agency affirmed by the Court.
Regarding the argument by the Respondent that additional perquisites provided by the employer should be included in the wage rate, such perquisites do constitute a portion of the employee's compensation, but not wage. Therefore, the amount paid by the employer to provide the insurance benefits should not be included in his wage nor deducted from the $1,941.13.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the Division of Labor enter its order directing the contracting authority to pay to the employee the sum of $1,941.13 and the remaining amount held by the contracting authority pursuant to this claim be paid to Acco Mechanical Contractors, Inc.
DONE and ORDERED this 1st day of November 1978, in Tallahassee, Florida.
STEPHEN F. DEAN
Hearing Officer
Division of Administrative Hearings
530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
COPIES FURNISHED:
Dewey H. Varner, Jr., Esquire Culp and Fisher
3003 South Congress Avenue Palm Springs, Florida 33461
Byrd Booth, Jr., Esquire Post Office Drawer 11089
Fort Lauderdale, Florida 33339
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF LABOR
RICHARD E. FISHER,
Petitioner,
vs. CASE NO. 78-1283
ACCO, INC.,
Respondent.
/
FINAL ADMINISTRATIVE ORDER
Upon due notice to all parties in the above-styled cause, an administrative hearing was held on September 15, 1978 in West Palm Beach, Florida before Stephen F. Dean, the assigned hearing officer.
STATEMENT OF CLAIM:
Petitioner, Richard E. Fisher, filed a claim against Respondent, Acco, Inc., alleging that he had been hired by Acco, Inc. in the capacity of a plumber and that Acco, Inc. had failed to pay him the prevailing wage for plumbers as required by Section 215.19, Florida Statutes.
The question presented in this case is how many hours the Petitioner, Richard E. Fisher, worked, the wage paid the Petitioner, and what, if any, difference exists between the wage paid the Petitioner and the prevailing wage.
FINDINGS OF FACT:
Acco, Inc. was a subcontractor in the construction of the Regional Juvenile Detention Center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services.
The contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and, pursuant to Section 215.19, Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project.
The prevailing wage established for plumbers on this project was $10.07 per hour.
During the course of this project, Acco, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law.
Between January 7, 1978 and May 20, 1978, Richard E. Fisher was employed by Acco, Inc. on this project as a plumber. During this time, Fisher was paid at the rate of $6.50 per hour.
The difference between the amount paid Petitioner and the prevailing wage is $3.57.
The Petitioner has complied with the prOvisions of se6ion 215.19(3)(a)
1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid for said hours. This affidavit was timely filed.
Exhibit No. 8, the Weekly Time Reports for Richard E. Fisher, establish that Fisher corked 459 hours at the rate of $6.50 and 55 hours at the rate of
$9.75.
The difference between what Petitioner was paid and what he should have been paid at the prevailing wage rate is equal to the sum of hours worked (459) times $3.57 or a total of $1,638.63.
Pursuant to the statute, the Department of Health and Rehabilitative Services is withholding $2,322.35 from Acco, Inc. pending the outcome of this claim.
CONCLUSIONS OF LAW:
Petitioner has established that he was hired and worked for Acco, Inc. as a plumber and that he was paid $6.50 per hour rather than the prevailing wage of $10.07 for plumbers on the project in question. Petitioner is entitled to the difference between what he was paid and the prevailing wage for the total number of hours worked by Petitioner at less than the prevailing wage.
The Hearing Officer, in his Recommended Order, addressed the difference in pay between the regular time worked and overtime worked. However, Section 215.19, Florida Statutes, is void of any statutory language concerning overtime. The statute only requires that the employee be paid "not less than the prevailing wage." Absent a legislative directive in Section 215.19, Florida Statutes, concerning overtime pay, the employee is only entitled to the difference between what he was paid and what he should have been paid at the prevailing wage for the total number of hours worked at a rate less than the prevailing wage. Therefore, Petitioner is entitled to $1,638.63.
Respondent's argument that the Division of Labor failed to properly adopt prevailing wage rates has been considered by the First District Court of Appeals of Florida in Vernon Neff et al. vs. Biltmore Construction Company, Inc., 362 So.2d 442, (1st DCA Fla. 1978) and State of Florida Department of Commerce, Division of Labor vs. Matthews Corporation, 358 So.2d 256 (1st DCA Fla. 1978). The Court, in both cases, upheld the process by which the wage rates are adopted.
Respondent argues that additional insurance benefits should be included in the wage rates, but such benefits are not "wages". The amount paid by the employer to provide insurance benefits should not be included in Petitioner's wage nor deducted from the amount owed to the Petitioner based upon this claim.
It is, therefore, hereby
ORDERED and ADJUDGED that the contracting authority, the Department of Health and Rehabilitative Services, pay the Petitioner, from the amount it is
withholding in this claim, the amount of $1,638.63, and that the remaining amount held by the contracting authority, pursuant to this claim, be paid to Acco, Inc.
DONE and ORDERED this 19th day of December, 1978 at Tallahassee, Leon County, Florida.
STEVEN H. CAMPORA, Director
Division of Labor
Florida Department of Labor and Employment Security
Suite 200 - Ashley Building 1321 Executive Center Drive Tallahassee, Florida 32304
Telephone No.: (904) 488-7396
COPIES FURNISHED:
DEWEY H. VARNER, JR., ESQUIRE
Attorney for Petitioner 3003 South Congress Avenue
Palm Springs, Florida 33461
L. BYRD BOOTH, JR., ESQUIRE Attorney for Respondent O'Neal and Booth, P.A.
Post Office Drawer 11088
Fort Lauderdale, Florida 33339
LUTHER J. MOORE, Administrator of Prevailing Wage
Division of Labor
1321 Executive Center Drive, East Tallahassee, Florida 32301
THOMAS A. KOVAL, ESQUIRE
Florida Department of Labor and Employment Security
401 Collins Building Tallahassee, Florida 32304
STEPHEN F. DEAN, Hearing Officer Department of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
Docket for Case No: 78-001283
Orders for Case No: 78-001283
