Determining whether the Prevailing Wage Act applies to certain components of a public works project often requires a fact-specific analysis. And, absent clear guidance from the Illinois Department of Labor, the answer may be uncertain. One of the more difficult issues in recent years has been whether prevailing wages must be paid for landscaping work. The Illinois Department of Revenue recently issued an FAQ clarifying this issue and providing public bodies with much needed guidance.
The FAQ, available here, provides clear examples of when the Prevailing Wage Act applies to landscaping work and when it does not. First, all landscaping work undertaken as part of a public works project is covered by the Prevailing Wage Act. This is true regardless of when the work occurs. If the landscaping is integral to the project, the Prevailing Wage Act applies even if the landscaping work occurs in stages over years. Landscaping work is not considered to be part of a public works project, however, when it occurs after the issuance of a certificate of substantial completion or after a landscaping contractor has completed its work under the contract and left the worksite.
Additionally, according to the FAQ, the Department of Labor will consider landscaping work by itself to be subject to the Prevailing Wage Act when the work involves changes in the nature, function or character of real estate. This includes activities such as earth moving, converting a vacant lot through the planting of trees, flowers, shrubs, or grass.
According to the FAQ, however, the following activities by themselves are not covered by the Prevailing Wage Act:
- Lawn mowing or grass cutting;
- line trimming;
- cultivating beds;
- mulch application;
- bed preparation using soil amendments;
- core aeration;
- sweeping and blowing of landscape materials;
- pruning, planting, removal, or replacement of shrubs, plants, and flowers;
- pruning of trees and replacement of trees that are planted as a replacement due to the removal of diseased or irreparably damaged trees, or trees that constitute a hazard;
- non-substantive replacement of sod, the removal of diseased or irreparably damaged trees or trees that are a hazard;
- seeding, including the preparation and application of erosion control blanket, application of fertilizer, herbicide, pesticide, fungicide;
- aquatic applications, raking, watering of trees, shrubs, plants, flowers, bulbs, seeds, and sod;
- dividing plants;
- trash pick-up and removal of landscape litter;
- holiday light and seasonal decoration installation excluding the electrical connections if any.
Finally, the FAQ also makes clear that while there may be no classifications of workers specifically related to landscape work, landscape workers should be treated as falling within the classifications of workers performing similar functions. For example, a landscape worker is covered by the more general classification of laborer. Similarly, the operator of a landscaping machine is covered by the classification of operator.
This guidance from the Illinois Department of Labor is particularly timely as public bodies prepare for their summer projects. Understanding whether the Prevailing Wage Act applies to certain landscaping work can assist public bodies in fulfilling their reporting requirements under the Act and avoid costly penalties.