Whether work performed is lienable or not is a question we often pose on the blog. We’ve also talked about other similar subjects, namely- what constitutes “labor” under the Miller Act, and whether the Davis-Bacon Act applies to P3 projects. A recent Massachusetts case brings all of these subjects together to determine whether a computer technician’s work might be entitled to prevailing wages as “construction work.” The court determined that some of the technician’s work constituted construction work in the context of prevailing wages.
But would that work be lienable?
Computer Technician and Construction Work
In Niles v. Huntington Controls, Inc., a computer technician (“Niles”) helped install and test HVAC systems. At the end of the project, Niles claimed his labor on public works fell under prevailing wage laws. After being denied, Niles brought his arguments to court.
Niles served as a full-time HVAC controls technician. Niles provided work on and off site, where he programmed and downloaded software for the installation of HVAC systems. He also provided computer programming work off site. Niles argued that because his work was an integral part of the installation of HVAC equipment, that work, just as the work of those who physically installed the system, was subject to prevailing wage laws.
At court, Niles produced several opinion letters from the Commissioner of Labor and Industry indicating that the work he performed falls under prevailing wage laws. Among other things, the letters stated that “the programming and downloading of software and installation and commissioning of electronic direct digital controls (DDC) for HVAC in buildings” are subject to prevailing wage law. The court found these letters persuasive.
Ultimately, the court found that some of the work was subject to prevailing wages, while some was not. Under Massachusetts law, “construction” includes “additions to or alterations of public works.” The court found that some of Niles’ work fell under this definition. Specifically, the court found that the programming, downloading, software, and installation on site fell under prevailing wage laws, citing the letters as strong evidence.
Could A Computer Technician File Mechanics Liens?
In Massachusetts, where this case occurred, the ability to file mechanics liens does not rely on the same definition of “construction work” as the prevailing wage laws. The court found that Niles’ work constituted an “addition to or alteration of” a public work. The lien statute requires “alteration, repair or removal of a building or structure upon land or improvement or alteration to real property…”
While those may not sound terribly different, the Massachusetts mechanics lien statute already has provisions for professionals working on the job site that are otherwise not quite protected. Since those providing work on the margins of the statute- architects, engineers, and other design professionals- get their protection from another part of the mechanics lien statute, it might not make sense to extend the definition of labor to cover computer technicians. Further, this decision does not relate to the ability to file mechanics liens, though a Massachusetts court could consider it persuasive to some degree.
In any event, most states are pretty strict when deciding what constitutes lienable work. The work of a computer technician, unless tied to the design of the building itself, is unlikely to qualify.
The construction industry is constantly implementing new technology. However, lien laws are not changing at the same pace, and there’s little reason to believe that they will going forward. Mechanics lien legislation moves slowly- Texas has been talking about it for ages. But as processes become more automated going forward, it’s not unthinkable that more technology-based construction work will become lienable.
We’ve actually contemplated this subject before when we discussed the intersection of Drones and Mechanics Liens.