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Garcia v. Skanska USA Building, Inc.

United States District Court, District of Columbia

August 24, 2018

MARIO MENJIVAR GARCIA, et al., Plaintiffs,
SKANSKA USA BUILDING, INC., et al., Defendants.



         Mario Menjivar Garcia and his coworkers allege that their employers deliberately underpaid them for carpentry work on public buildings in the District of Columbia. The employers ask this Court to dismiss the suit under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim, arguing that the Davis-Bacon Act forecloses any cause of action-whether under the Act itself, the Fair Labor Standards Act, or state labor laws-outside the Act's administrative scheme. Because the Davis-Bacon Act is not so expansive, the Court will deny the motion.

         I. BACKGROUND

         A. Facts[1]

         Mario Menjivar Garcia and his coworkers Alfonso Fuentes Castro, Elfidio Alvarado Barrera, Gabriel Ramirez Brito, and Javier Barrera Salinas-collectively, “Garcia”-worked for Skanska USA Building, Inc., P.O.S.T. LLC, and Alvin Smith-collectively, “employers”-on various public buildings in the District of Columbia between 2014 and 2017.[2] See Compl. ¶¶ 2, 19, 38, 56, 75, 93. The employers agreed to hire and pay Garcia “as a carpenter, ” by which Garcia understood that he would be paid “at least the legal prevailing wage for a carpenter.” Id. ¶¶ 21-22, 40-41, 58-59, 77-78, 95-96. The employers' contracts with the District of Columbia also “promised that workers on these projects would be paid the appropriate prevailing wage.” Id. ¶ 134. For years, however, Garcia was paid hourly wages below the prevailing wage and fringe benefits for a carpenter as determined by the Department of Labor under the Davis-Bacon Act. See Id. ¶¶ 33, 52, 70, 89, 107, 132. And, despite “often” working over forty hours per week, Garcia was “often not” paid overtime wages (time-and-a-half) for each hour over forty. Id. ¶¶ 26-27, 45-46, 63-64, 82-83, 100-01.

         Garcia sued to recover overtime wages under the Fair Labor Standards Act and the District of Columbia Minimum Wage Act Revision Act, as well as “promised prevailing wages and fringe benefits” under the District of Columbia Wage Payment and Collection Law. Id. ¶ 6- 7. The employers now move to dismiss, arguing the Davis-Bacon Act-specifically, its administrative remedial scheme-forecloses Garcia's claims. Dkt. 17.

         B. Relevant Statutes

         1. Davis-Bacon Act

         The Davis-Bacon Act sets requirements for certain contracts with the federal government or the District of Columbia relating to construction on public buildings or public works. As relevant here, the “advertised specifications” for covered contracts must “contain a provision stating the minimum wages to be paid various classes of laborers and mechanics, ” and those minimum wages “shall be based on the wages the Secretary of Labor determines to be prevailing” for each class of worker in a given market. 40 U.S.C. § 3142(a), (b). The eventual contract itself must then contain three stipulations: (1) that the contractor will pay covered workers at least the prevailing rates as recited in the advertised specifications, any contrary agreement between the contractor and his workers notwithstanding; (2) that the contractor will publicly post the wage scale at work; and, most important here, (3) that

there may be withheld from the contractor so much of accrued payments as the contracting officer considers necessary to pay to laborers and mechanics employed by the contractor or any subcontractor on the work the difference between the rates of wages required by the contract to be paid laborers and mechanics on the work and the rates of wages received by the laborers and mechanics and not refunded to the contractor or subcontractors or their agents.

Id. § 3142(c). Under this contractual provision, a government contracting officer can ensure that workers are paid at the Department of Labor's prevailing rates-and if the workers are underpaid, the contracting officer can withhold payment to the contractor and use the withheld funds to make up the difference. If the withheld funds are insufficient, “the laborers and mechanics have the same right to bring a civil action and intervene against the contractor and the contractor's sureties as is conferred by law on persons furnishing labor or materials.” Id. § 3144(a)(2). The contracting officer may also terminate a contract if he learns that any covered worker has been underpaid. See Id. § 3143. Most courts to have examined the issue have held that the Davis-Bacon Act does not create a private right of action before a plaintiff has navigated the administrative scheme. See infra note 4.

         2. Fair Labor Standards Act

         The Fair Labor Standards Act provides, inter alia, that “no employer shall employ any of his [covered] employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). An employee's “regular rate” is “deemed to include all remuneration for employment paid to, or on behalf of, the employee, but shall not be deemed to include” various items such as gifts, vacation and sick pay, various insurance payments, and certain other exempted items. Id. § 207(e). The FLSA imposes liability on employers who violate §§ 206 and 207 “in the amount of [the employee's] unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.” Id. § 216(b). And it explicitly authorizes a private right of action for aggrieved employees: “An action to recover the ...

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