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Couch White Obtains Temporary Stay of Newly Enacted Department of Labor Regulation

Sep 5, 2023

On June 26, 2023, Couch White, on behalf of its clients, successfully obtained a New York State Supreme Court Order enjoining the enforcement of a recently enacted Department of Labor (“DOL”) regulation, which requires that prevailing wage be paid in certain circumstances during the hauling of aggregate supply construction materials on public works projects.

The DOL regulation at issue stems from a bill passed by the Legislature and signed by Governor Hochul, which narrowly defined when prevailing wage must be paid for the hauling of aggregate construction materials.  Specifically, Governor Hochul explained in her approval memorandum that:

This bill clarifies the circumstances under which haulers of aggregate supply construction materials are to be paid the prevailing wage when working at public works construction sites.  I have reached an agreement with the Legislature to clarify that prevailing wage will be paid only at the worksite itself and for travel between the worksite and a designated central stockpile where aggregate supply construction materials are delivered.  Prevailing wage will not apply to out of jurisdiction deliveries of aggregate supply materials to the designated central stockpile.  On the basis of that agreement, I am pleased to sign this bill.

The DOL impermissibly exceeded its authority and enacted 12 NYCRR 222.2(c), which added:

Prevailing wage shall be paid for work performed within a 50-mile radius of a worksite involving the delivery of aggregate supply construction materials from a vendor of aggregate supply construction materials, such as a plant or quarry, to a worksite, except prevailing wage shall not be paid to direct employees of a supplier of aggregate supply construction materials, when making a single delivery in a given day.

The stay, however, is only temporary while the New York Supreme Court considers and ultimately decides on the lawfulness of the regulation. This proceeding was brought on behalf of Associated General Contractors of NYS, New York Construction Materials, Suit-Kote Corporation, and the Town of Windham.

The matter is next scheduled for a Court Appearance on August 17, 2023.  Couch White is available to discuss the content of the regulation and the potential impact it may have on public works projects.  Please contact Charles Carluccio at for more information.