Amaya v. Power Design, Inc., No. 15-1691 (4th Cir. 2016)
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Over twenty electrical construction workers filed suit under the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq., seeking unpaid hourly and overtime wages from Power Design for work completed under a federally funded subcontract between a joint venture and Power Design. The district court granted summary judgment for Power Design. The court found nothing in the relevant statutes barring the Electrical Workers from pursuing an FLSA claim. In light of the statutory texts, which admit of no conflict, and the similarities between Powell v. U.S. Cartridge Co., Masters v. Maryland Management Co., and this case, the court held 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 and the court vacated the judgment, remanding for further proceedings.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1691 JORGE AMAYA; MIGUEL MARTINEZ; CARLOS A. REAL; JAIME ZUBIETA; JOSE SANABRIA; DONACIANO CRUZ; CARLOS JOSE MUNOZ BARILLAS; AMADA M. CLEMENTE; DAGOBERTO TREJO GUZMAN; MOISES W. PORTILLA HUAMAN; MARIO ANTONIO SIGUENZA DIAZ; ROBERTO CARLOS BONILLA REYES; JOEL CHRISTIAN GUEVARA; FRANCISCO CABALLERO; RAUL D. AMPUDIA; CARLOS SAMUEL SANABRIA; JOSE MANUEL CARTAGENA; MARDIN J. MOZ GIRON; JACOBO MEDINA ZELAYA; JEFFREY O. COREA MONTALVAN; JUAN CAMPOS−PEREZ; JUAN PABLO DE PAZ; MARCOS ANTONIO FLORES, Plaintiffs − Appellants, v. POWER DESIGN, INC., Defendant − Appellee. ---------------------------------------SECRETARY OF LABOR, Amicus Supporting Appellant. ASSOCIATED BUILDERS AND CONTRACTORS, INC., Amicus Supporting Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:14−cv−00446−JFM) Argued: May 10, 2016 Decided: Before DIAZ, FLOYD, and THACKER, Circuit Judges. August 15, 2016 Vacated and remanded by published opinion. Judge Diaz wrote the opinion, in which Judge Floyd and Judge Thacker joined. 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 Spring, Maryland; Virginia Rae Diamond, ASHCRAFT & GEREL, LLP, Alexandria, Virginia, for Appellants. Paul DeCamp, Jeremy S. Schneider, JACKSON LEWIS P.C., Reston, Virginia, for Appellee. M. Patricia Smith, Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, William C. Lesser, Deputy Associate Solicitor, Paul L. Frieden, Counsel for Appellate Litigation, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus Secretary of Labor. Maurice Baskin, LITTLER MENDELSON, P.C., Washington, D.C., for Amicus Associated Builders and Contractors, Inc. 2 DIAZ, Circuit Judge: Appellants, over twenty electrical construction workers, (the “Electrical Workers” or “Workers”) sought unpaid hourly and overtime wages completed from under Appellee a Power federally Design, funded Inc. for subcontract work 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), 29 U.S.C. § 201 et seq., seeking liquidated damages. unpaid minimum and overtime wages and The district court granted summary judgment in favor of Power Design. For the reasons that follow, we vacate the court’s judgment and remand for further proceedings. I. A. In 2010, the U.S. Department of the Navy awarded Walbridge a federally facility Maryland. at funded the prime contract National Walbridge Naval entered to design Medical into a and Center construct in subcontract a Bethesda, with Power Design (the “NEX Contract”) for electrical work at the new naval facility. The subcontract expressly incorporated the Davis- Bacon Act (DBA), 40 U.S.C. § 3141 et seq., and the Contract Work Hours and Safety Standards Act (CWHSSA), 40 U.S.C. § 3701 et seq., but not the FLSA. 3 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. later entered into an equivalent subcontract installation work with ES & R Construction. 1 Power Design for electrical 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 until” the work shift’s “official” start time. sign-in sheet 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 rate, as required under the FLSA. time-and-a-half their hourly J.A. A27–28. 1 Power Design ultimately fired RDZ, citing its “repeated[] and persistent[] fail[ure] to demonstrate compliance with applicable federal statutes and regulations.” J.A. A221. 2 They also brought state law claims not relevant here. 4 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). 5 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 relevant statutes and cases. Then we turn to the merits. 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. DBA applies to federal construction contracts valued The 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 40 U.S.C. §§ 3142(a)–(b), 3141(2). does require not calculation of overtime overtime wages compensation, under “any Although the DBA it specifies federal law” to the be based on the “regular or basic hourly rate” determined by the Secretary. § 3142(e) (citing § 3142(2)(A)). The CWHSSA applies to “any” federally funded or assisted construction contracts and 3 Under the DBA, “fringe benefits” are employer payments or contributions to “a trustee or to a third person under a fund, plan, or program,” such as health insurance, life insurance, or a pension. 40 U.S.C. § 3141(2)(B). Payments required by federal, state, or local law, such as Social Security, do not qualify as fringe benefits. Id.; see also Davis-Bacon and Related Acts Frequently Asked Questions, U.S. Dep’t of Labor, https://www.dol.gov/whd/programs/dbra/faqs/fringes.htm (last visited June 15, 2016) (saved as ECF opinion attachment). 6 subcontracts for public works that are valued over $100,000, and requires contractors and subcontractors to pay their employees time and one-half their “basic rate of pay” for all hours worked over forty each week. §§ 3701, 3702(a). 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. U.S.C.C.A.N. 88-963, 2339, at 2 (1964), 2339–40. The as reprinted CWHSSA has a in 1964 complementary objective: to “bring order to the confusion which . . . marks the application and enforcement of work standards legislation in employment that employment.” results from Federal Government contracts or 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). eight-hour overtime Specifically, day, pay the While federal the forty-hour applicable subcontract work. the CWHSSA workweek, uniformly to seeks and federal to make the corresponding contract and S. Rep. No. 1722, at 2. DBA and construction CWHSSA regulate contracts, they different have similar aspects of enforcement mechanisms, which are internal to the Department of Labor but reviewable under the Administrative 7 Procedure Act, 5 U.S.C. § 702. See 40 U.S.C. §§ 3143–44, 3703. In the case of a violation, both statutes provide for the withholding of contract funds by the Department of Labor (to pay under- or unpaid employees at the prevailing rate) and the possibility of an up to three-year breaching ban on contractor the or award of subcontractor. 3703(b); see also 29 C.F.R. § 5.12. for daily criminal assessed liability. liquidated 40 federal §§ 3142(c)(3), to the 3144, The CWHSSA also provides damages U.S.C. contracts and, §§ 3703(b), in some 3708; 29 cases, C.F.R. § 5.8. 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 case law discussing a 8 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. as rapidly as practicable, It was passed “to eliminate, 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 onehalf their “regular rate” for all hours worked in excess of forty each week. 29 U.S.C. §§ 206, 207. And unlike the DBA and CWHSSA, the FLSA clearly provides a right of action; employees may sue in state or federal court for unpaid minimum wages and overtime compensation, plus liquidated damages. 9 § 216(b). B. We find two cases instructive to the issue presented here, Powell v. U.S. Cartridge Co., 339 U.S. 497, 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-Healy Act, a law that also regulates federal contract employment, and does not See 339 U.S. at 499–502. 4 FLSA. here, argued that the mutually exclusive.” acts expressly incorporate the The employers, as relevant “should be construed as being 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 contracts valued over $10,000, Congress intended the FLSA exceptions. to apply broadly, Id. at 515–17. with “narrow and specific” The Court then noted—as shown by the FLSA’s “Relation to Other Laws” provision, 29 U.S.C. § 218— Congress’ “awareness that the coverage of the [FLSA] overlaps 4 A booklet distributed to the workers by one of the employers provided that the employer “w[ould] pay the legal overtime rate as provided under the Walsh-Healy Act, and the [FLSA].” Powell, 339 U.S. at 501 (emphasis added). This fact did not affect the employer’s argument or the Court’s analysis. 10 that of other federal legislation affecting labor standards,” including the Walsh-Healy Act. on the Court that “instance[] . . . the where Id. at 517–18. employers compliance Nor was it lost failed with impossible to comply with the other.” to Act one show makes Id. at 519. any it The Court thus concluded that the acts are “not mutually exclusive” so that “[t]he applicability of the Walsh-Healy Act . . . does not preclude the application of the [FLSA].” Id. at 519–20. 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 computation of Act and overtime the under CWHSSA the does FLSA. not This affect is the 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, 29 U.S.C. § 207(a); 40 U.S.C. § 328(a) 11 (current version at 40 U.S.C. § 3702(a)). the FLSA, Similarly, the Service Contract Act, like excludes calculation. fringe benefits from the overtime Masters, 493 F.2d at 1332–33. 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,” Workers, “remain within the Act.” e.g., the Electrical 339 U.S. at 516–17; see also 29 U.S.C. § 213 (listing FLSA exemptions, none of which apply to the Workers). Moreover, the FLSA’s plain language envisions that be it would applied along with other federal labor legislation. See 29 U.S.C. § 218(a) (stating that the FLSA’s minimum requirement wage does not excuse noncompliance with “any” federal law that mandates a higher wage); Powell, 339 U.S. at 517–18. 12 Similarly, plainly with the envision the and concurrent FLSA. requirements text are As purpose application we’ve expressly of noted, applicable DBA with the to including those covered by the DBA. 3702. the one and another CWHSSA’s federal CWHSSA and overtime contracts, See 40 U.S.C. §§ 3701, And Congress was aware when it passed the CWHSSA that the FLSA already applied to “much of the construction industry,” meaning that contractors different with may the well legislative CWHSSA’s find concurrent themselves standards and applicable to the same conduct.” application, governed by enforcement “many several procedures S. Rep. No. 87-1722, at 18 (1962), as reprinted in 1962 U.S.C.C.A.N. 2121, 2133. The same is true of the DBA. See 40 U.S.C. § 3142(e) (explaining the calculation of overtime pay “under any federal law” (emphasis added)); see also 29 C.F.R. §§ 5.32(a) (specifying overtime pay under the DBA when the FLSA and CWHSSA apply concurrently), 778.6 (stating that DBA-covered workers may be subject to the FLSA’s overtime provision). Senate Committee Report accompanying the Moreover, the legislation that created the DBA’s overtime provision, 40 U.S.C. § 3142(e), lists the FLSA as one of the “existing Federal laws” under which DBAgoverned overtime may be calculated. 7 n.1. 13 See S. Rep. No. 88-963, at Power Design’s arguments otherwise are not persuasive. It points to excerpts from the Department of Labor’s Prevailing Wage Resource Contracts” as Book’s section evidence on that the “Overtime FLSA does Pay on not DBA/DBRA 5 apply when employees work exclusively on a subcontract governed by both the DBA and the CWHSSA. Design’s position: But the excerpts do not support Power 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. at 5. does Id. It does not follow from that instruction that the FLSA 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 5 According to the Resource Book, DBA/DBRA stands for “Davis-Bacon Act and Davis-Bacon ‘related Acts.’” U.S. Dep’t of Labor, Prevailing Wage Resource Book Tab 2 (2014). 14 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 Contract Act] statutes is right does not a of not. action Such conflict.” even a though difference (citation the [Service between omitted)); the see two 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 conflict. that it than the FLSA’s federal See 29 U.S.C. § 218(a). is impossible to minimum wage is not a Power Design has not shown determine “in each instance, the respective wage requirements under each Act, and then apply[] the higher requirement . . . Powell, 339 U.S. at 519. [in order to] satisfy[] both.” Indeed, in this case, the DBA’s higher hourly wages, see J.A. A231 (listing prevailing wages under the NEX Contract), satisfy rather 15 than contradict the FLSA’s compensation floor, see 29 U.S.C. § 206 (providing the federal minimum wage). Third, calculating overtime under each statute create a statutory inconsistency or conflict. does not In that regard, we note that the CWHSSA’s and FLSA’s maximum-hour-workweek and overtime requirements (directing overtime employee’s “regular are be the same. See paid at one and rate”); 40 U.S.C. 29 U.S.C. one-half § 3702(a) § 207(a) times the (directing overtime be paid at one and one-half times the employee’s “basic rate of pay”); Masters, 493 F.2d at 1333 (calling “synonymous” the CWHSSA’s “basic rate” and the FLSA’s “regular rate”). 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. Design says otherwise, the FLSA and DBA Although Power both require exclusion of fringe benefits when calculating overtime. the See 29 U.S.C. § 207(e) (precluding fringe benefits from the “regular rate” determination under the FLSA); 40 U.S.C. §§ 3141(2)(A), 3142(e) (directing overtime “under any federal law” to be computed using the DBA’s “basic hourly rate of pay” and not fringe benefits); excludes amounts see paid also by a 29 C.F.R. contractor § 5.32(a) or (“The [DBA] subcontractor for fringe benefits in the computation of overtime under the [FLSA] 16 [and] the [CWHSSA] . . . whenever the overtime provisions of any of these statutes apply concurrently with the [DBA] . . . .”). As overtime for using under the the higher FLSA, the hourly DBA wage directs when this calculating 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 [§] 3141(2)(A),” 40 U.S.C. § 3142(e), which is “the basic hourly rate of pay”—or the DBA’s “prevailing wage[]” minus fringe benefits, § 3141(2)(A). 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,” 29 U.S.C. § 207(a)(1), we supplant “regular rate” with the DBA’s prevailing basic hourly rate. This statutory interplay creates no conflict between the acts, and is entirely precedent. consistent with Supreme Court and circuit See Powell, 339 U.S. at 519 (stating that the higher hourly rate satisfies both the Walsh-Healy Act and the FLSA); Masters, 493 F.2d at 1332 (“‘Regular rate’ under the [FLSA] ‘must reflect all payments which the parties have agreed shall be received regularly during the work week, exclusive of . . . actual fact.’” (quoting Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424 (1945))). 17 Power Design Department of nonetheless Labor insists, regulation, that relying another Electrical the on Workers’ claim for unpaid overtime compensation exposes a conflict. argument goes as follows: The Electrical Workers The 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 compensation. DBA to prohibit such lower overtime See 29 C.F.R. § 5.32(a) (“[I]n no event can the regular or basic rate upon which premium pay for overtime is calculated under the [FLSA or CWHSSA] be less than the amount determined by the rate . . . under Secretary [the of as Ergo, DBA].”). Labor the there is basic a hourly statutory conflict between the DBA and the FLSA in this case. 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.” (emphasis added). 318 F.3d 80, 87 (2d Cir. 2003) 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]” 18 and that the court “[a]ward each [Electrical Worker] . . . his or her J.A. unpaid A33. overtime Similarly, wages . . . they argue pursuant on appeal to [the that FLSA].” 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 conflict make. he is entitled does not a legislative 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 agency’s only when (1) the interpretation is statute is reasonable); ambiguous see also and (2) the Skidmore v. Swift & Co., 323 U.S. 134, 138–140 (1944) (providing that the “weight of a[n 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 19 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, regulation. they again cite to the Department of Labor’s See § 5.32(c)(1) (“[I]n some cases a question of fact may be presented in ascertaining whether or not a cash payment made to laborers or mechanics is actually in lieu of a fringe benefit or is simply part of their straight time cash wage. In the latter situation, the cash payment is not excludable in computing overtime compensation.”). The scenario imagined in section 5.32(c) is of no moment. That regulation explains that the rate used in calculating overtime will be either the prevailing cash rate or a higher amount if the employee has been paid at a cash rate higher than the one prescribed by the Secretary of Labor. See § 5.32(c)(1)-(3); see also id. at § 5.32(a) (“The contractor’s contributions or costs for fringe benefits may be excluded in computing such [rate on which overtime is calculated] so long as the exclusions do not reduce th[at rate] below the basic hourly rate contained in the [prevailing] wage determination.” (emphasis added)). Here, the Electrical Workers allege that they were paid less than the prevailing hourly rate. 20 Additionally, the record contains: Labor) (1) the prevailing applicable (2) certified to payroll the records rates NEX (set by the Contract, submitted to Secretary J.A. the of A230–35; Department of Labor’s Wage and Hour Division, which indicate that some of the Workers 6 were classified as Electricians entitled to the $37.60 cash hourly rate and $12.28 fringe rate set by the Secretary under the NEX Contract, J.A. A237–337; and (3) affidavits by additional Workers stating that they, too, were Electricians paid below the prevailing NEX Contract rate, J.A. A380–85, A41215, A447–49. In our view, this is an issue of proof rather than a legislative conflict, which the district court can address on remand. 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.” 22:11–22:54. Oral Argument at 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), 6 The payroll records in the Joint Appendix do not account for all named appellants. Those whose payroll records were included, however, are classified exclusively as Electricians. 21 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 22
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