Truck drivers hauling to/from an off-site private facility, including de minimis trips, are not owed prevailing wage

STATE OF NEVADA

                                                   •
STEVE SISOLAK                                                                            REPLY TO:
   Governor
                                                                                         OFFICE OF THE LABOR

MICHAEL J BROWN COMMISSIONER
Director
1818 COLLEGE PARKWAY, STE 102

                                                               . ..

SHANNON M. CHAMBERS CARSON CITY, NEVADA 89706
Labor Commissioner PHONE (775) 684-1890
FAX (775) 687-6409

                                        Department of Business & Industry
                           OFFICE OF THE LABOR COMMISSIONER
                                               http://www.labor.nv.gov


        September 30, 2019

        Mr. Graig Madole
        Chief Executive Officer
        Associated General Contractors - Nevada Chapter
        5400 Mill Street
        Post Office Box 7578
        Reno, Nevada 89510

        Dear Mr. Madole:

        Pursuant to Nevada Administrative Code (NAC) Section 607.650, an Advisory Opinion has
        been requested clarifying when Prevailing Wage requirements for Truck Drivers apply or are
        triggered pursuant to Nevada Law.

        The Office of the Labor Commissioner issued a previous Advisory Opinion on this subject on
        June 12, 2017, that is attached and incorporated herein by reference in this Advisory Opinion.
        The situations involving Truck Drivers that you describe in your Request for an Advisory
        Opinion include: (1) transporting materials between the site of a public work and an off-site
        private facility; (2) truck drivers making numerous round trips between the site of a public work
        and the private facility throughout the course of a single shift with very limited or "de minimis"
        periods of time being spent at the public work site; and (3) the limited delivery or transportation
        of materials to the public work and/or from the public work to a private facility.

        Nevada Administrative Code Section 338.017 specifies when Truck Drivers are deemed to be
        employed on a Public Work.

         NAC 338.017 Truck drivers: Periods when deemed to be employed on public work.
         (NRS 338.012, 338.040) A worker who performs the craft of truck driver shall be deemed
         to be employed on a public work while:
             1. Transporting materials at the site of a public work; or
            2. Transporting materials between the sites of a public work.
             (Added to NAC by Labor Comm'r by R090-04, eff. 6-30-2004)


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Nevada Revised Statutes (NRS) 338.010 Subdivision 22 also defines "Supplier"

22. "Supplier" means a person who provides materials, equipment or supplies for a
    construction project.

The Merriam-Webster Dictionary 2019 Edition defines "De Minimis" as:

Definition of de minimis = "lacking significance or importance: so minor as to merit
disregard."

In addition, and as you point out in your Request for an Advisory Opinion, "Since at least 1995,
and pursuant to Attorney General Opinion (AGO) 95-07, truck drivers transporting materials
between the site of a public work and a private facility where work is done at non-Prevailing
Wage rates are not employed at the site of a public work and are not entitled to prevailing wage
rates. AGO 95-07 ("A truck driver who delivers materials to a Nevada public work does not
need to be paid the prevailing wage.") (Emphasis added.) This conclusion was confirmed by
the Nevada Supreme Court in 2002 in the Granite Construction Co., case and again by this
Office in 2004, when it adopted NAC 338.017. See State Dept. of Business and Industry v.
Granite Construction Co., 118 Nev. 83 (2002.)"

As stated in the previous Advisory Opinion and as set forth above, the current parameters of
Nevada Law regarding Truck Drivers do not support the conclusion that the transportation
and/or hauling of materials (i.e. sand, soil, rocks, gravel, concrete, asphalt grindings, excavation
materials, and construction debris, etc.) to or from an off-site private facility to the public work
including, "De Minimis" deliveries, subject that Truck Driving work to Prevailing Wage
requirements.

To expand Prevailing Wage requirements to situations where Truck Drivers are engaged in the
transportation and/or hauling of materials (i.e. sand, soil, rocks, gravel, concrete, asphalt
grindings, excavation materials, and construction debris, etc.) to or from an off-site private
facility to the public work including, "De Minimis" deliveries; would be contrary to Nevada
Revised Statutes (NRS) Section 338 and NAC Section 338, and specifically NAC Section
338.017.

The Labor Commissioner further finds that Prevailing Wage requirements for Truck
Driving work apply only in the following instances as set forth in NAC Section 338.017
1. Transporting materials at the site of a public work; or
2. Transporting materials between the sites of a public work.

                                        Page 2 of 3

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Should an Awarding Body or any other party maintain or feel that certain Truck Driving work
is subject to Prevailing Wage that does not comply with the requirements of NAC Section
338.017, they should contact the Office of the Labor Commissioner or pursue a potential
Complaint pursuant to NAC section 338.107.

This Advisory Opinion supports the conclusion of the previous Advisory Opinion and should
be followed similar to the previous Advisory Opinion and from the date of issuance going
forward. The Office of the Labor Commissioner may revisit this issue through the
Administrative Rulemaking Process. Please also be advised that subsequent statutory or
administrative rule changes or judicial interpretation of the statutes or rules upon which any
opinion is based may require that this Advisory Opinion by modified.

Should you have any questions in regards to this matter, please do not hesitate to contact our
office at (775) 684-1890.

Shannon M. Chambers
Labor Commissioner
Office of the Labor Commissioner

                                      Page 3 of 3

Page 4 — attached and incorporated 2017 Advisory Opinion

                                                                          REPLY TO:

BRIAN SANDOVAL STATE OF NEVADA
GOVERNOR
OFFICE OF THE LABOR COMMISSIONER
1818 COLLEGE PARKWAY #102
BRUCE BRESLOW CARSON CITY, NEVADA 89706
DIRECTOR TELEPHONE: (775) 687-4850
FACSIMILE: (775) 687-6409
SHANNON CHAMBERS
LABOR COMMISSIONER

                                 Department of Business & Industry
                          OFFICE OF THE LABOR COMMISSIONER

June 12, 2017

Ms. Vickie C. Coll
Compliance/Audit Investigator III
Nevada Department of Transportation
1263 So. Stewart Street
Carson City, Nevada 89712

Re: Request for Advisory Opinion - Truck Drivers

Dear Ms. Coll:

Pursuant to Nevada Administrative Code (NAC) Section 607.650, an Advisory Opinion has been
requested clarifying when Prevailing Wage requirements should apply for Truck Drivers who may
or may not be hauling materials (i.e. sand, soil, rocks, gravel, concrete, asphalt grindings,
excavation materials, and construction debris, etc.) to an off-site destination. In your Request for
an Advisory Opinion, you reference a recent decision issued on March 24, 2017, by the State of
California Department of Industrial Relations involving the California Department of
Transportation and Granite Construction Company (Granite).

Nevada Administrative Code (NAC) 338.017 specifies when Truck Drivers are deemed to be
employed on a public work.

Truck drivers: Periods when deemed to be employed on public work. (NRS 338.012, 338.040)
A worker who performs the craft of truck driver shall be deemed to be employed on a public work
while:
1. Transporting materials at the site of a public work; or
2. Transporting materials between the sites of a public work.

Our office conducted an inspection of the off-site yard/pit operated by Granite that appears to be
the subject of your Request for an Advisory Opinion. Based on that inspection, it was determined
that the off-site yard/pit operated by Granite was not established for a particular public works job
involving the Nevada Department of Transportation (NDOT), or involved the transporting of

Page 5

Vickie Coll
NDOT
June 14, 2017
Page 2 of 2

materials at the site of a public work, or the transporting of materials between the sites of a public
work. The off-site yard/pit included non-public work transporting and hauling.

The parameters of current Nevada Law (NAC 338.017) does not support NDOT's position as
stated in the Request for an Advisory Opinion that the hauling of materials (i.e. sand, soil, rocks,
gravel, concrete, asphalt grindings, excavation materials, and construction debris, etc.) to an off-
site destination subjects that hauling to Prevailing Wage requirements. If the site is not established
for the purposes of constructing a public work, or includes the transportation of materials at the
site of a public work, or between the sites of a public work, it is the current position of the Office
of the Labor Commissioner that NAC 338.017 governs when Truck Drivers are deemed to be
employed on a public work.

To expand Prevailing Wage requirements to Truck Drivers for those situations not defined in
Nevada Revised Statutes (NRS) Section 338 or NAC 338 by adopting the March 24, 2017,
Decision of the State of California Department of Industrial Relations and the State of California
requirements that are explicitly set out in California law and regulation, would constitute
rulemaking in violation of NRS 233B and the Administrative Procedure Act.

The Office of the Labor Commissioner would continue to encourage NDOT to consult with the
Office of the Labor Commissioner if there are questions about a specific NDOT project and
hauling by Truck Drivers that may occur at a site established for the purposes of constructing a
public work, or includes the transportation of materials at the site of a public work, or between the
sites of a public work.

This Advisory Opinion should also not be considered to be retroactive or applying to any past
matters involving this issue that involved the Office of the Labor Commissioner. Please be
advised that this Advisory Opinion is limited to the specific facts and circumstances described
herein. The Office of the Labor Commissioner may revisit this issue through the Administrative
Rulemaking Process. Please be further advised that subsequent statutory or administrative rule
changes or judicial interpretation of the statutes or rules upon which any opinion is based may
require that this Advisory Opinion be modified or abandoned.

Should you need any additional clarification, please do not hesitate to contact me at your earliest
opportunity at (775) 684-1890.

Shannon M. Chambers
Labor Commissioner