In June 2024, the New York City Comptroller’s Office clarified that flag persons working on public construction worksites must be paid prevailing wages. The rule is now clear: Flaggers on New York City public worksites must be paid prevailing wages.
The Comptroller’s Office is the government agency in charge of all matters concerning prevailing wages in New York City. In 1998 and 2001, the Comptroller’s Office explained that workers performing flagging duties on a construction worksite could be entitled to prevailing wages if they worked close enough to the worksite and performed certain construction-related tasks. Based on this, employers took the position that only “construction flaggers” were entitled to prevailing wages, and traffic agents or pedestrian crossing guards were not entitled to prevailing wages. Employees took the opposite position and claimed that they should have received prevailing wages.
In 2022, a court in New York City ruled that flag persons whose duties ensured the safety of the general public and construction workers on a public worksite must be paid prevailing wages. According to the court, flag persons who ensure that the public does not walk or drive into construction worksites necessarily protect the safety of construction workers and must be paid prevailing wages. For example, flag persons who stand around a worksite to direct pedestrians, bicycles, and cars away from the worksite have to be paid prevailing wages.
In June 2024, the Comptroller’s Office agreed with the court. The Comptroller’s Office now states that all workers performing “traffic control duties” for a construction worksite must be paid prevailing wages because their work “serves to protect the public and safeguard the work crew.” Additionally, workers performing construction-like tasks, such as placing traffic cones, barriers, and tape around construction worksites, must also be paid prevailing wages.
Under the Comptroller’s Office’s new rule, the following types of flaggers are example of persons who must be paid prevailing wages:
- A flagger who holds a sign directing traffic around a construction worksite;
- A flagger who holds a flag directing pedestrians and bicycles to go to the other side of the road to avoid the construction worksite;
- A flagger who helps construction vehicles move on the road by holding a flag or sign and walking next to, in front of, or behind the vehicle;
- A flagger who stops traffic so that construction equipment can move on or near a construction worksite; and
- A flagger who moves and sets up traffic tape, cones, or other barriers around a construction worksite.
If you are a flagger who is not getting prevailing wages, call us to see if we can help you recover your pay due. The attorneys at Pechman Law Group PLLC have helped hundreds of flaggers in New York City recover millions of dollars.
