Where an employee is hired to perform labor for public works covered by the Prevailing Wage Act, they retain the right of action from the act even if their contract does not contain the provision guaranteeing them prevailing wage in contravention of the act.
Posted May 7, 2020 9:54 AM
The 1st District Appellate Court reversed and remanded the decision of Cook County Circuit Judge Margaret Ann Brennan.
The plaintiffs in this case are 12 landscape laborers employed by Moore Landscapes LLC (Moore) as tree planters. Moore had three contracts with the Chicago Parks District for landscaping and related work, each of which contained a standard “prevailing wage rates provision” which mandates that the contractor pay all their employees prevailing wages “if applicable.” It is not disputed that $41.20 is the prevailing wage for landscape related work and the plaintiffs were paid an hourly rate of $18 for their labor. Section 11 of the Prevailing Wage Act (Act) requires all public works to pay the prevailing wage for the labor, and provides a right of action for any laborer who was paid less than the prevailing wage for a contractor doing public works.
The plaintiffs filed suit against Moore in September 2018 seeking unpaid wages, punitive damages, prejudgment interest and reasonable attorney fees and costs. Moore moved to dismiss, arguing their work was exempt from the prevailing wage provisions of the act and citing interpretations by the Illinois Department of Labor. Moore also moved to dismiss under fail to allege facts sufficient to support a claim, asserting the laborers failed to allege facts that supported the inference that the type of labor they performed was covered by the Wage Act. The trial court granted the motion to dismiss. The plaintiffs appealed.
On appeal, Moore argued that, for section 11 of the act to apply, the contract with the laborers must specify that they would be paid prevailing wages, and their contracts had no such provision. The plaintiffs argued that section 11 of the act also mandated that Moore include such a provision, which Moore did not deny, but instead claimed that because there was no contractual stipulation, the plaintiffs had no right of action and must rely on the Department of Labor to enforce any provisions of the act on their behalf. The plaintiffs claimed that the trial court’s interpretation rewards those who issue contracts which violate the act by protecting them from the right of action the act guarantees their employees.
The appellate court agreed with the plaintiffs. The court found that an employer’s failure to adhere to section 4 of the act, which mandates that the contracts include the provision at issue, does not in any way limit an employee’s right of action granted under section 11 of the act for any work where they should have been covered under the act. The appellate court emphasized that to do otherwise would allow employers to avoid liability by failing to adhere to the mandates of the act. The appellate court acknowledged that there is an issue as to whether the labor performed by the plaintiffs was covered under the act, but found that this was a material question of fact suitable for an evidentiary hearing. For that reason, dismissal was inappropriate.
The appellate court therefore reversed and remanded the decision of the circuit court.
Samuel Valerio, et al. v. Moore Landscapes LLC
2020 IL App (1st) 190185
Writing for the court: Justice Bertina E. Lampkin
Concurring: Justices Robert E. Gordon and Eileen O’Neill Burke
Released: March 26, 2020