Jorge Amaya v. Power Design, Inc.Jorge Amaya v. Power Design, Inc.
The Supreme Court has never given any indication that the bindingness concerns in Waterman could be cured by a court‘s determination that the other entity was “likely” to follow its decision. While a judgment may in fact have a higher chance of eventually being binding on the parties where the foreign sovereign has acted cooperatively, the U.S. judgment remains “subject to later review or alteration by [foreign] administrative action” and its bindingness remains impermissibly—a question of probabilities. See id. at 114, 68 S.Ct. 431.
IV.
The district court in this case did not have control of the res. The res is controlled by foreign sovereigns—New Zealand and Hong Kong. Therefore, the district court could not in my view issue an order as to the res which would be binding against the world. Foundational
ARGUED: Daniel Adlai Katz, THE LAW OFFICES OF GARY M. GILBERT & ASSOCIATES, P.C., Silver Spring, Maryland, for Appellants. Leslie A. Stout-Tabackman, JACKSON LEWIS P.C., Reston, Virginia, for Appellee. Erin Michelle Mohan, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus Secretary of Labor. ON BRIEF: Lucy Brierly Bansal, THE LAW OFFICES OF GARY M. GILBERT & ASSOCIATES, P.C., Silver
Before DIAZ, FLOYD, and THACKER, Circuit Judges.
Vacated and remanded by published opinion. Judge DIAZ wrote the opinion, in which Judge FLOYD and Judge THACKER joined.
DIAZ, Circuit Judge:
Appellants, over twenty electrical construction workers, (the “Electrical Workers” or “Workers“) sought unpaid hourly and overtime wages from Appellee Power Design, Inc. for work completed under a federally funded subcontract between Walbridge/Brasfield Gorrie Joint Venture and Power Design.
As relevant to this appeal, the Electrical Workers brought suit under the Fair Labor Standards Act (FLSA),
I.
A.
In 2010, the U.S. Department of the Navy awarded Walbridge a federally fund
Power Design, in turn, hired RDZ Electric to complete electrical installation work at the new naval facility, and they agreed to be bound by the NEX Contract terms. Power Design later entered into an equivalent subcontract for electrical installation work with ES & R Construction.1 The Electrical Workers worked for RDZ or ES & R, and their employment was governed by the relevant subcontract (and therefore also the NEX Contract).
B.
The Electrical Workers sued Power Design for violating the FLSA, but they did not bring claims under the DBA or the CWHSSA.2 The Workers alleged that the subcontractor “routinely required” them both to work over forty hours each week and to arrive at the jobsite fifteen minutes early each day to prepare the site, but “did not permit [them] to sign-in on the sign-in sheet until” the work shift‘s “official” start time. J.A. A27. The Workers also alleged that although Power Design paid them (and provided some funds to cover the overtime hours), it did not compensate the Workers “all wages owed for each hour worked” and failed to pay them overtime at time-and-a-half their hourly rate, as required under the FLSA. J.A. A27-28.
Power Design moved for summary judgment, arguing that “no reasonable jury could possibly find that [it] violated the [FLSA]” because “there is no applicable independent cause of action for [the Workers‘] overtime claims under the [DBA] and the [CWHSSA],” which governed the subcontract under which the Workers performed. J.A. A173, A181-85.
The district court granted the motion, finding that “the contract between [the Electrical Workers] and [Power Design] was a federal one to which the [DBA] and the [CWHSSA] appl[ied],” and that neither act “provide[d] a private right of action but [provided] only for enforcement of the standards they impose by the Department of Labor.” Amaya v. Power Design, Inc., No. JFM-14-446, 2015 U.S. Dist. LEXIS 69165, at *2 (D. Md. May 28, 2015). Accordingly, the Electrical Workers “c[ould] not circumvent those statutes by bringing claims under the [FLSA].” Id.
This appeal followed.
II.
Because the district court dismissed the Electrical Workers’ claim at summary judgment, we review that decision de novo to determine whether there is no genuine dispute of material fact and that Power Design is entitled to judgment as a matter of law. U.S. Dep‘t of Labor v. N.C. Growers Ass‘n, 377 F.3d 345, 350 (4th Cir. 2004).
As we explain, we find nothing in the relevant statutes barring the Electrical Workers from pursuing an FLSA claim. We begin our analysis with a review of the
A.
1.
The DBA and CWHSSA apply to federal (or federally funded or assisted) construction contracts and subcontracts, though they regulate different aspects of the employment relationship. The DBA applies to federal construction contracts valued over $2,000, and it requires contractors and subcontractors to pay their employees a “prevailing” wage set by the Secretary of Labor that consists of a “basic hourly rate of pay” and fringe benefits.3
Congress passed the DBA in 1931 to set an earnings floor for federal contract employees, to protect against substandard wages, and to promote the hiring of local labor. See Univs. Research Ass‘n, Inc. v. Coutu, 450 U.S. 754, 771, 773-74 (1981); S. Rep. No. 88-963, at 2 (1964), as reprinted in 1964 U.S.C.C.A.N. 2339, 2339-40. The CWHSSA has a complementary objective: to “bring order to the confusion which marks the application and enforcement of work standards legislation in employment that results from Federal Government contracts or employment.” S. Rep. No. 87-1722, at 1 (1962), as reprinted in 1962 U.S.C.C.A.N. 2121, 2121; see also Janik Paving & Constr., Inc. v. Brock, 828 F.2d 84, 89 (2d Cir. 1987) (discussing the act‘s purpose). Specifically, the CWHSSA seeks to make the eight-hour day, the forty-hour workweek, and corresponding overtime pay applicable uniformly to federal contract and subcontract work. S. Rep. No. 1722, at 2.
While the DBA and CWHSSA regulate different aspects of federal construction contracts, they have similar enforcement mechanisms, which are internal to the Department of Labor but reviewable under the Administrative Procedure Act,
Caselaw suggests that neither statute provides a private right of action. See Coutu, 450 U.S. at 768-69, 771-84 (holding that the DBA “does not confer a private right of action for back wages under a contract that administratively has been determined not to call for Davis-Bacon work,” but declining to decide “whether the Act creates an implied private right of action to enforce a contract that contains specific [DBA] stipulations“); see also, e.g., Bane v. Radio Corp. of Am., 811 F.2d 1504, 1987 WL 35851, at *1 (4th Cir. 1987) (unpublished table decision) (“[T]here is no implied right of private action under the [DBA].“); United States ex rel. Glynn v. Capeletti Bros., Inc., 621 F.2d 1309, 1316-17 (5th Cir. 1980) (concluding the same); Koren v. Martin Marietta Servs., Inc., 997 F.Supp. 196, 217 & n.28 (D.P.R. 1998) (noting the lack of caselaw discussing a private right of action under the CWHSSA but concluding that, based on Supreme Court precedent and the act‘s regulatory scheme, an implied right of action likely does not exist).
2.
The FLSA, on the other hand, has both a broader purpose and a different means of enforcement. It was passed “to eliminate, as rapidly as practicable, substandard labor conditions throughout the nation” and “to raise living standards without substantially curtailing employment or earning power.” Powell v. U.S. Cartridge Co., 339 U.S. 497, 509-10 & nn.11-12 (1950), superseded on other grounds by statute, e.g., Fair Labor Standards Amendments of 1966, Pub. L. No. 89-601, 80 Stat. 830, as recognized in Graham v. Town & Country Disposal of W. Mo., No. 4:10-CV-00551-NKL, 2010 WL 3927756, at *2 (W.D. Mo. Oct. 4, 2010).
The FLSA sets a federal minimum wage and maximum forty-hour workweek for all employees covered under the act, and it requires covered employers to pay their employees time and one-half their “regular rate” for all hours worked in excess of forty each week.
B.
We find two cases instructive to the issue presented here, Powell v. U.S. Cartridge Co., 339 U.S. 497 (1950), and Masters v. Maryland Management Co., 493 F.2d 1329 (4th Cir. 1974).
Both cases address the interplay between the FLSA and laws similar in kind and structure to the DBA and CWHSSA. In Powell, workers sued their employers, government contractors, for unpaid overtime under the FLSA even though the employment contract invoked the Walsh-Healey Act, a law that also regulates federal contract employment, and does not expressly incorporate the FLSA. See Id. at 499-502.4 The employers, as relevant here, argued that the acts “should be construed as being mutually exclusive.” Id. at 519.
The Court did not agree. First, the Court considered the statutes’ distinct purposes and applications—most notably, that while the Walsh-Healey Act applies narrowly to a limited class of government
In Masters, we confronted a similar question: whether the FLSA, CWHSSA, and the Service Contract Act (another federal labor statute governing federal contract and subcontract work) could apply concurrently, and, if so, whether the CWHSSA and the Service Contract Act require a different overtime calculation than the FLSA. 493 F.2d at 1331-32. Relying in part on Powell, we held that the acts are not “mutually exclusive” and that “the provisions of all may apply so far as they are not in conflict.” Id. at 1332.
As to overtime compensation, we found that applying the Service Contract Act and the CWHSSA does not affect the computation of overtime under the FLSA. This is because “regular rate” under the FLSA is “synonymous” with “basic rate” under the CWHSSA, id. at 1333, and both acts mandate that overtime be “not less than one and one-half times” that rate,
C.
Applying these cases in the context of the Electrical Workers’ complaint, we discern no conflict in the reach of the three statutes before us. Rather, we are satisfied that Congress intended the FLSA to apply broadly notwithstanding any overlap with other labor statutes.
As the Supreme Court noted in Powell, the FLSA‘s scope “was stated in terms of substantial universality amply broad enough to include employees of private contractors working on public projects,” such as the Electrical Workers, and the act‘s “specificity in stating exemptions strengthens the implication that employees not thus exempted, such as employees of private contractors under public contracts,” e.g., the Electrical Workers, “remain within the Act.” 339 U.S. at 516-17; see also
Similarly, the text and purpose of the DBA and CWHSSA plainly envision concurrent application with one another and with the FLSA. As we‘ve noted, the CWHSSA‘s overtime requirements are expressly applicable to federal contracts, including those covered by the DBA. See
The same is true of the DBA. See
Power Design‘s arguments otherwise are not persuasive. It points to excerpts from the Department of Labor‘s Prevailing Wage Resource Book‘s section on “Overtime Pay on DBA/DBRA5 Contracts” as evidence that the FLSA does not apply when employees work exclusively on a subcontract governed by both the DBA and the CWHSSA. But the excerpts do not support Power Design‘s position: In them, the Department of Labor provides that the FLSA may apply to DBA contracts regardless of whether they are governed by the CWHSSA, see U.S. Dep‘t of Labor, Prevailing Wage Resource Book Tab 10, at 4 (2014), which plainly refutes Power Design‘s argument.
The Resource Book also states that, “[u]nless specifically exempted” from the FLSA, employees who work on federally funded (or assisted) and commercial projects in the same workweek must receive overtime compensation for hours worked over forty. Id. at 5. It does not follow from that instruction that the FLSA does not apply when the employees work solely on government contract (or subcontract) work in a given workweek. See also Brief for the Secretary of Labor as Amicus Curiae in Support of Plaintiffs-Appellants at 25-26, Amaya v. Power Design, Inc. (No. 15-1691) (stating that the Department of Labor‘s “longstanding interpretation [of the acts] reflected in the[]” Resource Book excerpts supports the Workers’ position).
Several other purported conflicts arising from the concurrent application of the three statutes evaporate on closer examination. First, that the DBA and CWHSSA do not provide an implied private right of action does not amount to a conflict with the FLSA. See Lee v. Flightsafety Servs. Corp., 20 F.3d 428, 431 (11th Cir. 1994) (“It is possible that the FLSA may allow a private right of action even though the [Service Contract Act] does not. Such a difference between the two statutes is not a conflict.” (citation omitted)); see also Powell, 339 U.S. at 519 (explaining why employees may prefer to pursue administrative remedies in some instances and FLSA remedies in others).
Second, that the DBA requires the payment of wages that may be higher than the FLSA‘s federal minimum wage is not a conflict. See
Third, calculating overtime under each statute does not create a statutory inconsistency or conflict. In that regard, we note that the CWHSSA‘s and FLSA‘s maximum-hour-workweek and overtime requirements are the same. See
Further, the DBA‘s directives to use the prevailing cash rate and to exclude fringe benefits when calculating overtime dovetail with the FLSA‘s overtime computation. Although Power Design says otherwise, the FLSA and DBA both require the exclusion of fringe benefits when calculating overtime. See
As for using the higher hourly wage when calculating overtime under the FLSA, the DBA directs this course. It specifies that “[i]n determining the overtime pay to which a [worker] is entitled under any federal law, the regular or basic hourly rate of pay (or other alternative rate on which premium rate of overtime compensation is computed)...is deemed to be the rate computed under [§]
Thus, when we turn to the FLSA, which requires overtime be “not less than one and one-half times the regular rate at which [the worker] is employed,”
Power Design nonetheless insists, relying on another Department of Labor regulation, that the Electrical Workers’ claim for unpaid overtime compensation exposes a conflict. The argument goes as follows: The Electrical Workers sought overtime compensation at one-and-a-half times the hourly rate they were paid rather than the rate set by the Secretary of Labor. But, says Power Design, the Department of Labor has interpreted the DBA to prohibit such lower overtime compensation.
The Electrical Workers’ proposed overtime calculation was in response to Grochowski v. Phoenix Construction, the only circuit case to directly address the computation of overtime under the FLSA on a DBA-governed contract, which found that the calculation must be “limited...to one-and-a-half times the hourly rates actually paid.” 318 F.3d 80, 87 (2d Cir. 2003) (emphasis added). Notably, however, the Workers’ complaint did not limit overtime to a calculation based on the lower hourly wage; rather, they asked for “a sum that will properly, adequately and completely compensate [the Electrical Workers]” and that the court “[a]ward each [Electrical Worker]...his or her unpaid overtime wages...pursuant to [the FLSA].” J.A. A33. Similarly, they argue on appeal that calculating overtime on the basis of the hourly rate that they should have been paid under the DBA “would also produce a favorable and legally sound result.” Reply Br. at 15.
In any event, a plaintiff‘s request for less in damages than that to which he is entitled does not a legislative conflict make. Moreover, we will not defer to a regulation that creates a statutory conflict between the DBA and the FLSA where one does not exist. So even if section 5.32(a) meant what Power Design urges here, we would ignore it. See Chevron, U.S.A., Inc. v Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984) (explaining that we defer to an agency‘s interpretation of a statute only when (1) the statute is ambiguous and (2) the agency‘s interpretation is reasonable); see also Skidmore v. Swift & Co., 323 U.S. 134, 138-140 (1944) (providing that the “weight of an agency‘s interpretation of a statute] in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade“).
Relatedly, Power Design argues that because the Electrical Workers seek overtime on the basis of the hourly wages they actually received, which is less than the prevailing wage rates prescribed by the Department of Labor, the district court cannot determine the proper overtime owed to the Workers because of the statutory mandate to exclude the fringe rate in the calculation. In support, they again cite to the Department of Labor‘s regulation.
The scenario imagined in
Here, the Electrical Workers allege that they were paid less than the prevailing hourly rate. Additionally, the record contains: (1) the prevailing rates (set by the Secretary of Labor) applicable to the NEX Contract, J.A. A230-35; (2) certified payroll records submitted to the Department
One final point. At oral argument, Power Design contended for the first time that there was a question of fact regarding the Electrical Workers’ FLSA overtime calculation because there are different classifications for electricians and laborers, all of which have different cash and fringe rates and “several of which could potentially be applicable here.” Oral Argument at 22:11-22:54. We generally do not consider arguments raised for the first time on appeal (much less when sprung on us at oral argument), In re Under Seal, 749 F.3d 276, 285 (4th Cir. 2014), and decline to do so here. In any event, this, too, is a matter of proof best left for the district court.
III.
In light of the statutory texts, which admit of no conflict, and the similarities between Powell, Masters, and this case, we hold that the statutes at issue apply concurrently to the Electrical Workers’ employment arrangement. Accordingly, the district court erred in granting summary judgment to Power Design.
VACATED AND REMANDED