Former Employee Can’t Sue for Back Pay Until DOL Issues Ruling

Facts: A former employee sued the housing authority to recover unpaid wages and benefits allegedly owed to him under the Davis-Bacon Act. This federal law establishes the requirement for paying the local prevailing wages on public works projects. It applies to “contractors and subcontractors performing on federally funded or assisted contracts in excess of $2,000 for the construction, alteration, or repair (including painting and decorating) of public buildings or public works.”

The former employee began training as a plumber under a program jointly administered by the housing authority and local plumbers union. He worked during a probationary employment period, and, at the request of the union, he was terminated from the program. No reason for the termination appears in the record.

The former employee then filed complaints with local HUD officials claiming that the housing authority had paid him less than the relevant prevailing Davis-Bacon Act wages. HUD agreed twice and instructed the housing authority to pay the prevailing wage rate. Still contending that the wage rate should have been higher, the former employee filed a complaint with the Department of Labor (DOL), and two DOL officials wrote letters telling him that the Davis-Bacon Act didn’t apply to his work for the housing authority at all. The employee sued.

Ruling: A Pennsylvania district court dismissed the former employee’s claim.

Reasoning: The former employee is allowed to bring a claim to ask the court to review the DOL’s final decision as to whether and to what extend the Davis-Bacon Act applied to the former employee’s work for the housing authority when the final decision has been made. The court concluded, however, that the letters the former employee received from the DOL weren’t final decisions or final agency actions. The Davis-Bacon Act authorizes a private right to sue for back pay only after all the administrative actions to ensure adequate payment have been pursued and have failed.

• McClean v. Philadelphia Housing Authority, February 2013