The United States Court of Appeals for the Fourth Circuit recently issued a landmark decision regarding Government Contractors under the Fair Labor Standards Act (“FLSA”).
In Amaya v. Power Design, Inc., No. 15-1691, 2016 WL 4269801 (4th Cir. Aug. 15, 2016), the plaintiffs were 23 electrical construction workers who performed work on the Bethesda Navy Exchange. 
The subcontract expressly incorporated the Davis–Bacon Act (DBA), and the Contract Work Hours and Safety Standards Act (CWHSSA).
The DBA applies to federal construction contracts valued 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. 
The CWHSSA applies to “any” federally funded or assisted construction contracts and 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.
Neither the DBA nor the CWHSSA has an explicit private right of action. 
The Amaya plaintiffs brought their case under the FLSA.
The defendants argued that there is no private right of action under the DBA or CWHSSA, and therefore the plaintiffs could not bring suit for wages. The district court agreed, even though the plaintiffs did not bring any claims under either the DBA or CWHSSA, and granted summary judgment to the defendants.
On appeal, the United States Court of Appeals for the Fourth Circuit determined that there is no statutory conflict that would prevent the plaintiffs from bringing their wage claims under the FLSA, but that they could, and should, seek overtime wages at a rate consistent with what they should have, but didn’t earn for their DBA/CWHSSA-covered work. 
That is, instead of using the actual regular rate of pay for calculating FLSA overtime, the Court of Appeals allowed using the higher prevailing wage rates from the DBA/CWHSSA, consistent with Department of Labor Regulations.
This is a tremendous opinion that rewrites the laws for Government Contractors under the FLSA.
All employers handling government contracts, particularly in construction, must immediately be aware of this crucial development in the law.