The Davis Bacon Act is a prevailing wage federal statute that applies to contractors and subcontractors performing work on federally assisted or federally funded projects in excess of $2,000 for the construction, alteration, or repair, including painting and decorating, of a public project.  40 U.S.C. s. 3142.   Contractors and subcontractors performing work on Davis Bacon projects must pay mechanics or laborers minimum wages / prevailing wages based on the class of labor and project determined for the locale of the project per a wage determination published by the United States Department of Labor.  40 U.S.C. s. 3142.  These rates must be certified through weekly certified payroll. For more information on the Davis Bacon Act, check out the United States Department of Labor’s website.     You can also check out wage determinations or prevailing wage rates to get an understanding of prevailing wage rates for the class of project and labor based on the locale of the project. 

Over the last few years, there have been federal decisions supporting the argument that a violation of the Davis Bacon Act can form the basis for a violation of the False Claims Act otherwise known as a qui tam action.

For instance, in United States ex rel. Brian K. Smith v.  Clark/Smoot/Russell, 796 F.3d 424 (4^th Cir. 2015), a relator (private person) brought a qui tam action (violation of False Claim Act) against his employer, in particular, for failing to pay him locally prevailing wage rates as set forth by the Department of Labor. The Fourth Circuit reversed the dismissal of this claim by the trial court finding that a violation of Davis Bacon could support a violation of False Claims Act action. 

Here, the relator alleged that he was a labor or mechanic that worked on federal construction projects governed by the Davis Bacon Act. The relator claimed he was paid based on an improper, lower-paying labor classification and was never paid or provided fringe benefits required for his labor classification.   He lodged a complaint with the Department of Labor’s Wage and Hour Division that concluded he was not properly being paid.  Thereafter, he was temporarily reassigned to a non-Davis Bacon project, meaning there was no prevailing wage rates and he could be justifiably paid at a lower wage rate.  The reassignment also resulted in a substantially longer commute. He was then assigned to another federal project, but while it was a Davis Bacon project, he was only given limited hours to work.  Based on these facts, the relator filed a qui tam action (violation of False Claims Act) stating (1) the submission of false Davis Bacon certified payroll constituted a false claim because he was not paid prevailing wages based on any applicable Davis Bacon wage schedule / wage determination and (2) his reassignment and reduction in work hours violated the whistleblower (anti-retaliatory) provision of the False Claims Act because they were retaliatory in nature based on his complaint to the Department of Labor.

This case shows the dynamics of a project governed by Davis Bacon.  You need to know the prevailing wages inclusive of fringe benefits for labor classes.  Also, you know to understand that a wage determination for a project showing the prevailing wages is probably not going to touch upon every class of labor that a construction contract requires.  You need to recognize this and inquire as to the prevailing wage you think should apply so that the public agency can get a project-specific wage determination from the Wage and Hour Division of the Department of Labor.  What you do not want, however, is to have to deal with a violation of Davis Bacon or a potential qui tam action under the False Claims Act for violating the prevailing wage requirements of Davis Bacon.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.