Jorge Amaya v. Power Design, Inc.

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: August 15, 2016

Before DIAZ, FLOYD, and THACKER, Circuit Judges.
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 from Appellee Power Design, Inc. for work

completed under a federally funded subcontract 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 unpaid minimum and overtime wages and

liquidated damages. 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 funded prime contract to design and construct a

facility at the National Naval Medical Center in Bethesda,

Maryland. Walbridge entered into a subcontract 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. Power Design

later entered into an equivalent subcontract for electrical

installation work with ES & R Construction. 1 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 sign-in sheet

until” the work shift’s “official” start time. 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 time-and-a-half their hourly

rate, as required under the FLSA. J.A. A27–28.

1Power 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. 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. 3 40 U.S.C. §§ 3142(a)–(b), 3141(2). Although the DBA

does not require overtime compensation, it specifies the

calculation of overtime wages under “any federal law” to 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. 88-963, at 2 (1964), as reprinted in 1964

U.S.C.C.A.N. 2339, 2339–40. The CWHSSA has a complementary

objective: to “bring order to the confusion which . . . marks

the application and enforcement of work standards legislation in

employment that results from Federal Government contracts or

employment.” 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). Specifically, the CWHSSA seeks to make the

eight-hour day, the forty-hour workweek, and corresponding

overtime pay applicable uniformly to federal contract and

subcontract work. S. Rep. No. 1722, at 2.

While the DBA and CWHSSA regulate different aspects of

federal construction contracts, they have similar enforcement

mechanisms, which are internal to the Department of Labor but

reviewable under the Administrative Procedure Act, 5 U.S.C.

7
§ 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 ban on the award of federal contracts to the

breaching contractor or subcontractor. §§ 3142(c)(3), 3144,

3703(b); see also 29 C.F.R. § 5.12. The CWHSSA also provides

for daily assessed liquidated damages and, in some cases,

criminal liability. 40 U.S.C. §§ 3703(b), 3708; 29 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. It was passed “to eliminate,

as rapidly as practicable, 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 one-

half 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. § 216(b).

9
 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 expressly incorporate the

FLSA. See 339 U.S. at 499–502. 4 The employers, as relevant

here, argued that the acts “should be construed as being

mutually exclusive.” 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 to apply broadly, with “narrow and specific”

exceptions. Id. at 515–17. 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

4A 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. Id. at 517–18. Nor was it lost

on the Court that the employers failed to show any

“instance[] . . . where compliance with one Act makes it

impossible to comply with the other.” Id. at 519. 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 Act and the CWHSSA does not affect the

computation of overtime under the FLSA. This is 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) (current version at 40

11
U.S.C. § 3702(a)). Similarly, the Service Contract Act, like

the FLSA, excludes fringe benefits from the overtime

calculation. 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,” e.g., the Electrical

Workers, “remain within the Act.” 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 it would be applied along with other federal labor

legislation. See 29 U.S.C. § 218(a) (stating that the FLSA’s

minimum wage requirement does not excuse noncompliance with

“any” federal law that mandates a higher wage); Powell, 339 U.S.

at 517–18.

12
 Similarly, the text and purpose of the DBA and CWHSSA

plainly envision concurrent application with one another and

with the FLSA. As we’ve noted, the CWHSSA’s overtime

requirements are expressly applicable to federal contracts,

including those covered by the DBA. See 40 U.S.C. §§ 3701,

3702. And Congress was aware when it passed the CWHSSA that the

FLSA already applied to “much of the construction industry,”

meaning that with the CWHSSA’s concurrent application, “many

contractors may well find themselves governed by several

different legislative standards and enforcement procedures

applicable to the same conduct.” 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). Moreover, the

Senate Committee Report accompanying 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 DBA-

governed overtime may be calculated. See S. Rep. No. 88-963, at

7 n.1.

13
 Power Design’s arguments otherwise are not persuasive. It

points to excerpts from the Department of Labor’s Prevailing

Wage Resource Book’s section on “Overtime Pay on DBA/DBRA 5

Contracts” as evidence that the FLSA does not apply when

employees work exclusively on a subcontract governed by both the

DBA and the CWHSSA. But the excerpts do not support Power

Design’s position: 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. Id.

at 5. It does not follow from that instruction that the FLSA

does 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

5According 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 right of action even though the [Service

Contract Act] does not. Such a difference between the two

statutes is not a conflict.” (citation omitted)); see 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 than the FLSA’s federal minimum wage is not a

conflict. See 29 U.S.C. § 218(a). Power Design has not shown

that it is impossible to determine “in each instance, the

respective wage requirements under each Act, and then apply[]

the higher requirement . . . [in order to] satisfy[] both.”

Powell, 339 U.S. at 519. Indeed, in this case, the DBA’s higher

hourly wages, see J.A. A231 (listing prevailing wages under the

NEX Contract), satisfy rather than contradict the FLSA’s

15
compensation floor, see 29 U.S.C. § 206 (providing the federal

minimum wage).

Third, calculating overtime under each statute does not

create a statutory inconsistency or conflict. In that regard,

we note that the CWHSSA’s and FLSA’s maximum-hour-workweek and

overtime requirements are the same. See 29 U.S.C. § 207(a)

(directing overtime be paid at one and one-half times the

employee’s “regular rate”); 40 U.S.C. § 3702(a) (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. Although Power

Design says otherwise, the FLSA and DBA both require the

exclusion of fringe benefits when calculating overtime. 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); see also 29 C.F.R. § 5.32(a) (“The [DBA]

excludes amounts paid by a contractor or 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 for using the higher hourly wage when calculating

overtime under the FLSA, the DBA directs this 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 consistent with Supreme Court and circuit

precedent. 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 nonetheless insists, relying on another

Department of Labor regulation, that the Electrical Workers’

claim for unpaid overtime compensation exposes a conflict. The

argument goes as follows: The Electrical Workers 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 DBA to prohibit such lower overtime

compensation. 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 Secretary of Labor as the basic hourly

rate . . . under [the DBA].”). Ergo, there is a 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.” 318 F.3d 80, 87 (2d Cir. 2003)

(emphasis added). 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 unpaid overtime wages . . . pursuant to [the FLSA].”

J.A. A33. Similarly, they argue on appeal that 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 he is entitled does not a legislative

conflict make. 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 only when (1) the statute is ambiguous and (2) the

agency’s interpretation is reasonable); see also 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, they again cite to the Department of Labor’s

regulation. 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. Additionally, the record

20
contains: (1) the prevailing rates (set by the Secretary of

Labor) applicable to the NEX Contract, J.A. A230–35;

(2) certified payroll records submitted to the 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, A412-

15, 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.” Oral Argument at

22:11–22:54. 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.

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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

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