“If you want a job done right, you have to do it yourself” – unattributed

The relationship between the U.S. Department of Labor (“DOL”) enforcement of the federal wage and hour laws, and the private right of action to sue under them is a complicated one. The Fair Labor Standards Act (“FLSA”) has an uncomplicated history of expressly allowing a private right of action to recoup minimum wage and overtime violations. It includes a statute of limitations and liquidated damages. But this is not the case for violations of the Service Contract Act (“SCA”), Davis-Bacon Act (“DBA”) and the Contract Work Hours and Safety Standards Act (“CWHSSA”). These federal wage and hour laws contain no express private right of action and leave most of the enforcement to DOL through DOL investigations.

But, DOL cannot be everywhere and a private right of action to enforce prevailing wages would likely be welcomed by those that the laws are meant to protect. This is where the Washington D.C. Wage Payment and Collection Law (“DCWPCL”) may play a key role in allowing workers to enforce their congressionally mandated rights. The DCWPCL requires that employers pay all wages owed to their employee on regular pay days. D.C. Code § 32-1302. “Wages” as defined by the statute, means “means all monetary compensation after lawful deductions, owed by an employer, whether the amount owed is determined on a time, task, piece, commission, or other basis of calculation.” D.C. Code § 32-1301(3). Plaintiffs have argued, somewhat successfully, that this statute confers a private right of action for employees to sue their employers for non-payment of owed wages regardless of who or what sets those wages. These actions are similar to those in contract law, where the employer is violating an employment agreement to pay a certain wage to their employee, and even though those are DBA or SCA mandated wages that are normally enforced by DOL, an employee can sue for back wages through the D.C. Wage Payment and Collection Law. Indeed, the erosion of the bar against private causes of action is ongoing with courts finding various FLSA, state wage laws and common law causes of action to be colorable and refusing to dismiss them. Clever pleading thus may get around the rule that there is no private cause of action under the SCA, DBA and CWHSSA.

The success of these suits is based on a singular line of reasoning — rather than arguing that there is an express or implied private right of action in the federal wage and hour laws, the plaintiffs argue that those laws do not preempt or restrict private rights of action under them. Similar suits based on an implied private right of action have largely failed. See e.g. Danielsen v. Burnside-Ott Aviation Training Ctr., 941 F.2d 1220 (1991); Dist. Lodge No. 166, Int'l Ass'n of Machinists & Aerospace Workers v. TWA Servs., Inc., 731 F.2d 711 (11th Cir. 1984); see also GROCHOWSKI v. Phx. Constr., YPSILON Constr. Corp., 318 F.3d 80 (2d Cir. 2003); Univs. Research Ass'n v. Coutu, 450 U.S. 754 (1981). In the District of Columbia, however, piggybacking off of a state statute has been successful.

At first, using the DCWPCL to enforce prevailing wages was unsuccessful. In Ibrahim v. Mid-Atlantic Air of DC, LLC, 802 F. Supp. 2d 73 (D.D.C. 2011) and in Johnson v. Prospect Waterproofing Co., 813 F. Supp. 2d 4 (D.D.C. 2011) two separate DC District judges decided that using the D.C. Wage payment and Collection Law to enforce prevailing wags would be an impermissible end run around the DBA’s requirement to seek administrative remedies. But, more recently, this sentiment changed with a later D.C. District Court opinion in Garcia v. Skanska USA Bldg., Inc., 324 F. Supp. 3d 76 (D.D.C. 2018) allowing a suit to go forward.  The D.C. Superior court weighed in and unsurprisingly found Garcia most persuasive thereby expanding the protection of the D.C. Wage Payment and Collection Law. Calix v. Prestige Bldg. Co., 2020 D.C. Super. LEXIS 21 (Oct. 9, 2020); Castaneda v. V&V Constr., LLC, 2020 D.C. Super. LEXIS 20 (Oct. 7, 2020). In those cases, the courts stated that it was the D.C. Wage Payment and Collection Law that provided the cause of action, even though it was the Davis-Bacon Act that set the wages. The only limitation imposed was that the issue of job classification (i.e., what prevailing wage position is being performed) is not subject to private suit and court resolution. That classification issue remains committed to DOL’s exclusive jurisdiction.

The more recent cases show a trend in the D.C. area that loosen the restrictions of federal labor statutes but until the D.C. Circuit court weighs in, these cases are merely persuasive leaving any suit of this type up to the leanings of the judge assigned to the case. Still these decisions interpreting the DBA and the DCWPCL could open the door for other states to provide a statutory cause of action to enforce wages set by the SCA and the DBA. This would contravene decades of precedent preventing private causes of action thereby providing relief where the DOL is unable or unwilling to do so.