Prevailing Wages – Private Right of Action

Under the McNamara O’Hara Service Contract Act, employee plaintiffs have no private right of action against defendant employers for alleged failure to pay prevailing wages.

In a recent case heard by the United States District Court for the District of Massachusetts, and in despite of plaintiff’s allegations that the Service Contract Act “was approved by Congress to provide labor standards for the protection of employees of contractors furnishing services to or performing maintenance service for the United States Government,” the court held that the Service Contract Act “does not provide an express or implied private right of action.”

Additionally the court rejected the plaintiff’s argument that the Fair Labor Standards Act creates a private right of action by supplementing the Service Contract Act.

A plaintiff may also be barred from bringing a claim under a common law contract theory when the claims are based solely on the employer’s failure to pay the prevailing wage under the Service Contract Act. An employee lacks standing to bring a contract claim under a contract that arises out of an independent contractor relationship between the governmental entity and employer-contractor. Additionally the obligation to pay prevailing wages is a statutory obligation that did not previously exist at common law and as such preempts common law contract claims.

The court took a strong stance in finding that “ultimately, the Secretary of Labor has the exclusive right to enforce the SCA. As such, the redress of plaintiffs’ grievances lay with the Secretary and not in the courts.” The court did leave the option open in which an employee may bring a private right of action under the Massachusetts’ Wage Act, so long as the claim is filed within the three-year statute of limitations.



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