What is the Davis Bacon Act?
The Davis Bacon Act was enacted in 1931 to provide wage protections for construction workers, as wells as equal opportunities for contractors, when bidding and working on federal projects. It requires contractors and subcontractors to pay their employees the prevailing local wage and fringe benefits for work on a federally-funded or federally-assisted construction project involving public buildings or public works. The law covers a wide array of public projects involving construction, repairs, or improvements on projects involving highways; airports; railways; subways; streets; and power lines. The Department of Labor sets the prevailing wage for each locality. At a minimum, contractors are required to pay the prevailing wage, but they are free to pay their employees more than the prevailing wage.
A contractor must certify compliance with the Davis-Bacon Act when working on federal project. Failure to pay the prevailing wage after certifying compliance is a violation the False Claims Act. A company could be liable for three times the government’s damages, and an eligible whistleblower could potentially receive as much as 30 percent of the amount recovered by the government.
In United States ex rel. Wall v. Circle C Const., L.L.C., 697 F.3d 345 (6th Cir. 2012), the Sixth Circuit Court of Appeals held that certain violations of the Davis-Bacon Act create liability under the False Claims Act. Circle C Construction was contracted to construct buildings at a U.S. Army base. Circle C hired a subcontractor to perform the majority of the electrical work on the project. After failing to initially include the subcontractor’s employees on its payroll certifications, Circle C subsequently included them to certify compliance with Davis-Bacon. However, the subcontractor paid its employees less than the prevailing wage for electrical workers in that area.
The Sixth Circuit upheld the district court’s finding that Circle C’s original and subsequent payroll certifications were expressly false because (1) they stated that they were complete, when no employees of the subcontractor who worked on the project were listed, and (2) the certifications wrongly represented that the prevailing wages were paid to the subcontracted employees.
The Sixth Circuit found that Circle C made false statements, acted in reckless disregard of the truth or falsity of the information, and that the false statements were material to the government’s decision to make the payment to Circle C. Based on those findings the Sixth Circuit affirmed the district court’s grant of summary judgment in favor of the relator’s claim under the False Claims Act.
Certain aspects of the Davis-Bacon Act, such as the appropriate classification of an employee, fall within the purview of the Department of Labor Prior. See, e.g., Foundation for Fair Contracting, Ltd. v. G & M Eastern Contracting & Double E, LLC, 259 F.Supp.2d 329 (D.N.J. 2003). However, even when an employer is accused of misclassifying workers, qui tam litigation may still be permitted if the Department of Labor has “previously determined the type of work within each classification” because the adjudication of whether a certification is actually a false statement “‘is not dependent on interpretation’ of classifications and wage determinations.” U.S. ex rel. International Broth. of Elec. Workers, Local Union No. 98 v. Fairfield Co., Civil Action No. 09-4230, 2013 WL 3327505, *7 (E.D. Pa. 2013).
Violations of the Copeland Act
The Copeland Act was passed by Congress and signed by President Roosevelt in 1934 as a supplement to the Davis-Bacon Act. Federal contractors and subcontractors covered by the Copeland “Anti-kickback” Act must provide a weekly statement of wages paid to employees during the preceding payroll. If a company induces its employees to give up compensation for which they are entitled by law, the company may be liable under the False Claims Act.
Regulations for Overtime Pay
The Contract Work Hours and Safety Standards Act and the Fair Labor Standards require contractors and subcontractors to pay overtime to eligible employees on certain government contracts. If you are not receiving one and one-half times your regular pay for working more than forty hours per week, consult an attorney at Young Law Group to determine whether your employer is violating the law. You may be entitled to backpay as well as a reward for providing information to the government.
Has a contractor or subcontractor on a construction project violated the Davis-Bacon Act or Copeland Act?
Contact an attorney at Young Law Group to report them to the federal government through the False Claims Act.
The False Claims Act Permits Whistleblowers to File a Qui Tam Lawsuit for False Davis-Bacon Certifications and Earn a Reward.
On Federal projects, contractors are required to certify that they are in compliance with the Davis-Bacon Act. If they complete the certification and have not paid the prevailing wage according to the law, they have violated the False Claims Act. This opens the company up to a judgment of three times the government’s damages and permits a reward to eligible whistleblowers of up to 30 percent of the amount received by the government.
In 2012, the Sixth Circuit Court of Appeals held that a violation of the Davis-Bacon Act could create liability under the False Claims Act. U.S. ex rel. Wall v. Circle C Const., L.L.C., 697 F.3d 345, 357 (6th Cir. 2012). Circle C Construction was the contractor on a project to construct buildings at Fort Campbell, a military base. The company hired a subcontractor to perform the majority of the electrical work on the project. After failing to initially include the subcontractor’s employees on its payroll certifications, it subsequently included them and certified compliance with Davis-Bacon. The wages paid, however, were not above the amount required for electrical workers. This decision was in line with the result of a Ninth Circuit opinion in 1999 which also concluded that the “FCA does indeed extend to false statements regarding the payment of prevailing wages.” U.S. ex rel. Plumbers and Steamfitters Local Union No. 38 v. C.W. Roen Const. Co., 183 F.3d 1088, 1092 (9th Cir. 1999).
Past judicial decisions have not applied the False Claims Act to disputes with the Department of Labor about the appropriate classification of an employee. See Foundation for Fair Contracting, Ltd. v. G & M Eastern Contracting & Double E, LLC, 259 F.Supp.2d 329, 339 n.9 (D.N.J. 2003). Those determinations are within the jurisdiction of the Department of Labor. However, when the contractor’s statement does not implicate the complex classification regulations, such as falsification of the actual wages paid, liability under the FCA is appropriate. Even where the employer is accused of misclassifying workers, qui tam litigation may still be permitted if the Department of Labor has “previously determined the type of work within each classification” because the adjudication of whether the certification is actually a false statement “‘is not dependent on interpretation’ of classifications and wage determinations.” U.S. ex rel. International Broth. of Elec. Workers, Local Union No. 98 v. Fairfield Co., Civil Action No. 09-4230, 2013 WL 3327505, *7 (E.D. Pa. July 2, 2013).
About the Davis-Bacon Act
Contractors and subcontractors performing on federally funded or assisted construction contracts on public buildings or public works must pay the local prevailing wage to covered employees. The law covers an expansive amount of public projects. Construction projects or improvements on highways, airports, railways, subways, streets and power lines are all covered. The prevailing wage for their employees is determined and set by the Department of Labor for each area. Contractors are allowed to pay their employees more, but they cannot pay less.
Violations of the Copeland Act are also Actionable
The Copeland Act was passed by Congress and signed by President Roosevelt in 1934 as a supplement to the Davis-Bacon Act. Federal contractors and subcontractors covered by the Copeland “Anti-kickback” Act must also provide a weekly statement of wages paid to employees during the preceding payroll. If a company induces its employees to give up compensation which they are entitled to by law, then it may have also violated the False Claims Act.
Are You Getting Your Overtime Pay?
Contractors and subcontractors are also required on certain government contracts to pay overtime to eligible employees according to the Contract Work Hours and Safety Standards Act or the Fair Labor Standards. If you are not receiving one and one-half times your regular pay for hours worked over 40, then contact an attorney at Young Law Group to discuss whether your employer is breaking the law. You may be entitled to backpay as well as a reward for informing the government of the violation.