U.S. Court Seeks Guidance on 'Prevailing Wage' Rule

, New York Law Journal

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A federal appeals court has asked the New York Court of Appeals to clarify unsettled questions on prevailing wages under New York Labor Law and the deference a court should give to an agency's interpretation of the law.

The U.S. Court of Appeals for the Second Circuit Thursday certified two questions to the state's highest court in Ramos v. SimplexGrinnell LP, 12-4901-cv, a case where workers who installed, fixed, maintained and inspected fire alarm and suppression systems sued SimplexGrinnell, saying it was obligated to pay them "prevailing wages" for their labor on "public works" pursuant to New York Labor Law §220.

During litigation in the Eastern District, SimplexGrinnell asked the state's Department of Labor for clarification on the law and the company provided matrices of the work it thought was covered—matrices that did not include testing and inspection. DOL posted the matrices on its website but then-commissioner Patricia Smith ordered the matrices removed from the website and issued an opinion saying testing and inspection were indeed covered. DOL then stated it would only enforce this opinion prospectively.

The circuit asked for clarification on the deference to be afforded to both the DOL's opinion and its decision to apply it prospectively where a court is deciding the meaning of §220 before the agency issues its opinion and decision.

The Second Circuit also asked "Does a party's commitment to pay prevailing wages…bind it to pay those wages only for work activities that were clearly understood" to be covered by §220 or does it require prevailing wages for "all the work activities that are ultimately deemed by a court or agency to be 'covered' by that portion of the statute?"

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