Report Contractors for Davis Bacon Act Violations Under the False Claims Act

Has a contractor or subcontractor on a construction project violated the Davis-Bacon Act or Copeland Act?  Contact an attorney at McEldrew Young Purtell Merritt 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 McEldrew Young Purtell Merritt 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.

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