Second Circuit Reaffirms that Private Prevailing Wage Claims Are Barred by Davis-Bacon Act

Carrion v. Agfa Construction, Inc., Nos. 11-5098, 11-5334 (2d. Cir. June 13, 2013): On appeal from an order by District Judge Brian M. Cogan in the U.S. District Court for the Eastern District of New York, the plaintiff-appellant Carrion argued that the lower court erred in dismissing his prevailing wage claim. Carrion argued that, as a third-party beneficiary to a construction contract between the defendant and the New York City Housing Authority, he was entitled to the “prevailing wage” as established by the Davis-Bacon Act. In reliance upon Grochowski v. Phoenix Construction, 318 F.3d 80 (2d Cir. 2003), which holds that the Davis-Bacon Act does not “confer a private right of action on an aggrieved employee for back wages,” the lower court found that the claim was unavailing. On appeal, Carrion argued that Grochowski should be overruled or limited to its particular facts, especially in light of a contrary holding by the New York Court of Appeals in Cox v. NAP Construction Co., 10 N.Y.3d 592, 604 (N.Y. 2008). However, the Second Circuit declined to overrule Grochowski and ruled that Carrion’s theory of recovery is barred. Although the case stands as a reminder that the U.S. Department of Labor retains exclusive jurisdiction over prevailing wage claims, the conflict between the Second Circuit and the New York Court of Appeals will continue to encourage plaintiffs to forum shop and avoid asserting their wage claims involving federally-funded construction contracts in federal courts to avoid dismissal under the Davis-Bacon Act.