9th Circ. Prevailing Wage Case Microcosm of Battles to Come

Labor and employment attorney Timothy Taylor was cited in a Law360 article examining a case before the U.S. Court of Appeals for the Ninth Circuit concerning how the U.S. Department of Labor (DOL) calculates prevailing wage rates. At issue is the DOL's decision to use wage rates from Las Vegas for determinations for a project in northern Nevada because it lacked sufficient data from that particular area. The plaintiffs allege the DOL is violating the Davis-Bacon Act and Administrative Procedures Act by doing so. Some attorneys say the current litigation portends future cases to come because of the rollout of projects under the $1.2 trillion Infrastructure Investment and Jobs Act. Mr. Taylor commented that he doesn't view the current case before the Ninth Circuit as a question of agency power but rather a look at the practical difficulties the department faces when gathering data to make wage rate determinations.

"I think it's a question simply of: Does it make sense how DOL has chosen to execute its clear mandate to determine these prevailing wages," he said. "It's interesting to see these questions being held up in the cold light of day in a court where I think that they're sometimes difficult questions for the DOL to answer."

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