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11-3000-14334-2 |
STATE OF MINNESOTA
OFFICE
OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF TRANSPORTATION
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In the Matter of Valley Paving, Inc., State Contract No. 2480-92 |
RECOMMENDED
ORDER ON CROSS
MOTIONS FOR SUMMARY DISPOSITION |
The above-entitled matter is before Administrative Law Judge Barbara L. Neilson on the parties’ Cross Motions for Summary Disposition. After the cross motions were filed on February 3, 2003, and the Department filed its reply brief on February 14, 2003, the parties engaged in extensive discussions in an attempt to settle the case or narrow the issues for decision. Supplemental letter briefs were filed on April 8, April 18, May 23, June 13, July 24, and July 25, 2003, at which time the OAH record with respect to the pending motions closed.
Michael A. Sindt, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, Minnesota 55103-2122, appeared on behalf of the Department of Transportation. Gerald S. Duffy and M. Gregory Simpson, Attorneys at Law, Siegl, Brill, Greupner, Duffy & Foster, P.A., 100 Washington Avenue South, Suite 1300, Minneapolis, Minnesota 55401, appeared on behalf of Valley Paving, Inc.
Based upon the files, records, and proceedings herein, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:
It is respectfully recommended as follows:
1.
The parties’ cross motions for summary disposition are granted in part
and denied in part, as set forth in detail in the Memorandum below.
2.
In accordance with the
April 3, 2003, decision of Deputy Commissioner Differt in In the Matter of Bauerly Brothers, Inc., laborers performing work
for Valley Paving’s subcontractors on State Project S99162, including those
delivering hot-mix from the Ellendale site, constructing the highway shoulder,
and constructing the roadbed, were subject to the requirements of the Minnesota
Prevailing Wage Laws. Valley Paving
breached its contracts with the State and violated Minn. Stat. § 177.44 by
failing to ensure that the subcontractors on this State highway construction
project paid prevailing wages to their driver employees. The
Department’s motion is granted and Valley Paving’s motion is denied in this
regard.
3.
With respect to the treatment of cash paid in lieu of fringe benefit
contributions, it is appropriate to follow the April 2003 decision of Deputy Commissioner
Differt in Bauerly Brothers. Thus, the total required overtime rate in this matter shall
be calculated by multiplying the basic hourly rate (i.e., the rate exclusive of
fringe benefits) by 1.5, then adding the prevailing fringe rate. The Department should revise its calculation
of additional wages owing accordingly. The parties’ motions are denied to the extent
that they urge adoption of different calculation methods.
4.
Where laborers worked on projects during the workweek other than the
project at issue here, Valley Paving is only responsible for the provision of
overtime pay based upon the prevailing wage rate when a laborer exceeded 8 hours
per day or 40 hours per week on the particular project at issue here, since
there is no evidence that Valley Paving and other entities who employed the
laborer on another job were affiliated or related. The
Department thus should revise its calculation of additional wages owing to
exclude from the overtime determination hours worked by drivers on jobs other
than the project involved here during the same period (i.e., hours worked by a
driver on other jobs should not be counted towards that employee’s regular time hours for purposes of calculating Valley
Paving’s liability for overtime).
The Department’s motion is denied and
Valley Paving’s motion is granted to the extent consistent with this ruling.
5. Because this ruling resolves the pending issues, there is no need for a further evidentiary hearing in this matter.
Dated: August 25, 2003. /s/ Barbara L. Neilson
_________________________________________
BARBARA L. NEILSON
Administrative
Law Judge
NOTICE
This Recommended Order is a recommendation, not a final decision. The Commissioner of Transportation will make the final decision after a review of the record. The Commissioner may adopt, reject or modify the Recommended Order. Under Minn. Stat. § 14.61, the final decision of the Commissioner shall not be made until this Report has been made available to the parties to the proceeding for at least ten days. An opportunity must be afforded to each party adversely affected by this Report to file exceptions and present argument. Parties should contact Carol Molnau, Commissioner, Department of Transportation, 395 John Ireland Boulevard, Mail Stop 100, St. Paul, MN 55155-1899, telephone (651) 296-3000, to inquire about filing exceptions or presenting argument.
The Notice and Order for Hearing filed by the Department in this matter alleges that the Department of Transportation received three complaints during 2000 that the Respondent, Valley Paving, Inc., committed violations of the Minnesota prevailing wage law while it was under contract with the State of Minnesota to perform highway construction services in Freeborn County, Minnesota, under Mn/DOT Project 2480-92. The Department alleged in the Notice and Order for Hearing that it investigated these complaints in August of 2000 and determined that the off-site bituminous hot-mix plant used to provide asphalt to the project was performing “work under the contract” under Minn. Stat. § 177.44, subd. 1. The Department further found that the hot-mix plant was not exempted under Minn. Stat. § 177.44, subd. 2, from the prevailing wage laws because it was portable and was not a “commercial establishment” with “a fixed place of business from which they regularly suppl[ied] . . . processed or manufactured materials or products.” The Department concluded that Valley Paving had failed to pay prevailing wages to “laborers or mechanics” employed by a Mn/DOT “contractor, subcontractor, agent, or other person doing or contracting to do all or part of the work under a contract” under Minn. Stat. § 177.44, subd. 1. The Department asserts in this contested case proceeding that Valley Paving violated its contract with the Department by virtue of its violation of the Minnesota prevailing wage laws. The Department did not allege a violation of the federal Fair Labor Standards Act or any other federal law in its Notice and Order for Hearing.
The moving party has the initial burden of showing the absence of a genuine issue concerning any material fact. A genuine issue is one that is not sham or frivolous. A material fact is a fact whose resolution will affect the result or outcome of the case.[3] To successfully resist a motion for summary judgment, the nonmoving party must show that there are specific facts in dispute that have a bearing on the outcome of the case.[4] A nonmoving party cannot rely on pleadings alone to defeat a summary judgment motion.[5] The nonmoving party must establish the existence of a genuine issue of material fact by substantial evidence; general averments are not enough to meet the nonmoving party’s burden under Minn. R. Civ. P. 56.05.[6]
When considering a motion for summary judgment, the facts must be viewed in the light most favorable to the non-moving party,[7] and all doubts and factual inferences must be resolved against the moving party.[8] If reasonable minds could differ as to the import of the evidence, judgment as a matter of law should not be granted.[9]
The statutory framework, underlying facts, and contentions of the parties are set out below.
I. Prevailing Wage Law
The Minnesota Prevailing Wage Law (“PWL”) is a minimum wage law that applies to contracts for construction and maintenance of highways funded in whole or in part by state funds. The Davis-Bacon Act, 40 U.S.C. § 276a(a), applies to federal projects that are funded in whole or in part with federal funds. The Davis-Bacon Act and Minnesota’s Prevailing Wage Law have somewhat different statutory schemes.[10]
The Minnesota PWL is set forth in Minn. Stat. §§ 177.41 - 177.44. Minn. Stat. § 177.41 recognizes that “[i]t is in the public interest that public buildings and other public works be constructed and maintained by the best means and highest quality of labor reasonably available and that persons working on public works be compensated according to the real value of the services they perform.” The statute acknowledges that “[i]t is therefore the policy of this state that wages of laborers, workers, and mechanics on projects financed in whole or part by state funds should be comparable to wages paid for similar work in the community as a whole.” The term “project” is defined to mean “erection, construction, remodeling, or repairing of a public building or other public work financed in whole or part by state funds.”[11] The term “area” is defined to mean “the county or other locality from which labor for any project is normally secured.”[12] The term “prevailing hours of labor” is defined to mean “the hours of labor per day and per week worked within the area by a larger number of workers of the same class than are employed within the area for any other number of hours per day and per week. The prevailing hours of labor may not be more than eight hours per day or more than 40 hours per week.”[13] The term “hourly basic rate” is defined to mean “the hourly wage paid to any employee”[14] and the term “prevailing wage rate” is defined to mean “the hourly basic rate of pay plus the contribution for health and welfare benefits, vacation benefits, pension benefits, and any other economic benefit paid to the largest number of workers engaged in the same class of labor within the area and includes . . . rental rates for truck hire paid to those who own and operate the truck. The prevailing wage rate may not be less than a reasonable and living wage.”[15]
The PWL contains the following provision relating to work on state highway contracts:
A laborer or mechanic employed by a contractor, subcontractor, agent, or other person doing or contracting to do all or part of the work under a contract based on bids as provided in Minnesota Statutes 1971, section 161.32, to which the state is a party, for the construction or maintenance of a highway, may not be permitted or required to work longer than the prevailing hours of labor unless the laborer or mechanic is paid for all hours in excess of the prevailing hours at a rate of at least 1½ times the hourly basic rate of pay of the laborer or mechanic.”[16]
The statute further specifies that the “laborer or mechanic must be paid at least the prevailing wage rate in the same or most similar trade or occupation in the area.”[17] This provision “does not apply to wage rates and hours of employment of laborers or mechanics engaged in the processing or manufacture of materials or products, or to the delivery of materials or products by or for commercial establishments which have a fixed place of business from which they regularly supply the processed or manufactured materials or products.”[18] The provision does, however, expressly apply “to laborers or mechanics who deliver mineral aggregate such as sand, gravel, or stone which is incorporated into the work under the contract by depositing the material substantially in place, directly or through spreaders, from the transporting vehicle.”[19] The statute requires that the prevailing hours of labor, prevailing wage rates, hourly basic rates of pay, and classifications for all labor as certified by the commissioner must be specifically stated in the proposals and contracts for state highway construction contracts and posted on the project.[20] The statute also specifies that the prevailing wage laws are to be enforced by the Department of Transportation, which is authorized to examine records relating to hours of work and wages paid to laborers and mechanics on work to which the law applies, and county attorneys are empowered to investigate and prosecute violations.[21]
Prevailing wage rates are determined by the Department of Labor and Industry by the use of wage surveys that it compiles for each of ten defined areas of the state. The prevailing wage rate paid is the surveyed rate paid to the largest number of workers engaged in the same class of labor within the areas, as required by Minn. Stat. § 177.42, subd. 6, and Minn. R. 5200.1060.[22]
II. Underlying Facts
The parties entered into a Stipulation of Facts in this matter, which was attached as Exhibit 1 to the State’s Memorandum in Support of its Motion for Summary Disposition. The Stipulation indicates that Valley Paving is a Minnesota corporation that is in the business of contracting for highway heavy construction of roadways and asphalt paving in Minnesota and other states and is engaged in asphalt paving in a large area across Minnesota.[23] Valley Paving was the low bidder in May of 1999 on Mn/DOT contract S99162 for projects 2480-92 (TH 35=390) and 7480-101 (TH 35=390) in Freeborn and Steele counties, and was awarded the contract for those projects.[24] It thus was the prime contractor on the project.[25]
Contract S99162 provided for the bituminous overlay of the roadway, the reconstruction of ramp shoulder, and construction of temporary crossovers.[26] The contract also called for the removal of pipe culverts, concrete nose, and concrete millings, and for hauling bituminous wearing course and non-wearing course onto the project as overlayment on the highway.[27] The project’s starting date was July 12, 1999, work was completed on September 24, 1999, and the total amount of the contract was $2,299,225.80.[28] The bid specifications for the project, which were ultimately incorporated into the contract, included several provisions relating to prevailing wage rates and the application of Minn. Stat. § 177.44, subd. 2.[29] The following “Prevailing Wage Statement” dated March 16, 1998, was included:
A recent unpublished decision of the Minnesota Court of Appeals, affirms the authority of the Minnesota Commissioner of Transportation to enforce the Minnesota Prevailing Wage Law on State Highway projects on a case-by-case basis. International Union of Operation [sic] Engineers, Local 49 vs. Minn. Dept. of Transportation, et al., Court of Appeals Case No. C6-97-1582, also see, Minn. Stat. §§ 177.43 and 177.44 (1996).
The Department of Transportation will enforce the Minnesota Prevailing Wage Law in a manner consistent with the Court of Appeal’s [sic] decision notwithstanding any prior notices on this subject. A copy of the Court of Appeal’s [sic] decision is available to anyone who is interested in reviewing it. Please call Charles Groshens, Labor Compliance Unit at (651) 297-5716 to receive a copy.[30]
The contract also included the state and federal prevailing wage rates for project 2480-92.[31] In addition, the Standard Specifications for Construction and the Supplemental Specifications that applied to the contract specified that the prime contractor could, under certain circumstances, subcontract portions of the work but stated that subcontracting work cannot relieve the prime contractor of any of its liabilities and obligations under the contract.[32]
The asphalt plants used to supply material in road construction are called hot-mix plants.[33] Such plants are made up of several transportable components that can be moved to other locations when and where they are needed.[34] Aggregate, sand, and asphalt cement are mixed at the hot-mix plant to make the asphalt. The ability to move the plants where they are needed reduces the cost of transporting the aggregate used in the asphalt and permits the asphalt to be delivered to the project at the temperature specified by the contract.[35] Such plants are most often located in a pit at or near the source of the aggregate.[36] Asphalt plants that are used on Mn/DOT projects must be inspected by Mn/DOT as producing the asphalt product specified by the contract, and must be certified every time they are set up. [37]
Valley Paving assigned its employees to operate the pits and plants and moved from one to another as necessary.[38] Depending on the capacity of the mineral aggregate production facility, at least two employees are necessary: one to operate each of one or more front-end loaders to extract the raw material from the pit face and deliver it to a crusher for processing, separation and stacking, and one to operate the production equipment.[39] A hot-mix plant requires a loader operator and a plant operator, and sometimes a plant maintenance person who oils and maintains the equipment.[40]
The construction involved temporary cross-overs and roadway resurfacing.[41] Aggregate was also used for the cross-over roadbed.[42] In that case, belly dumps would deposit the material on the road in a windrow.[43] The aggregate was then graded, leveled, and compacted.[44]
Two lifts (layers) of new asphalt, a base course and a wearing course, are laid by a paving machine over the roadbed to form the new road.[45] As the paving machine moves along the roadbed, it takes the hot-mix from its front-end hopper, spreads it to the appropriate width with conveyors or augers, conveys it on the roadbed at the appropriate thickness, and levels it off with a screed.[46] The hot mix is delivered from the trucks by one of two methods: (1) a dump truck backs up to the paving machine and dumps the hot mix directly into the hopper as the paving machine pushes the truck along, or (2) belly dumps or flowboys place the asphalt in windrows in front of the paving machine, where it is picked up by a combine attached to the front of the paving machine and moved by conveyor to the hopper.[47] Following the paving machine, laborers may do some hand touch-up work, and then the asphalt is compacted by asphalt rollers.[48]
The aggregate shoulders of the projects are typically raised to the new grade of the road using a shouldering machine.[49] The shouldering machine is like a simple paving machine.[50] It rides on the roadbed, takes aggregate from its hopper, and moves it by conveyor to its right side, where it drops the appropriate amount on the shoulder area, then levels it off with a strike-off at the appropriate depth and slope.[51] The aggregate is delivered in end-dump trucks.[52] One at a time, the trucks back up to the shouldering machine.[53] The shouldering machine pushes the truck along as the truck unloads the aggregate into the hopper at a rate controlled by the truck driver, and the shoulder machine spreads it on the shoulder.[54] The aggregate is then compacted by rollers.[55]
Valley Paving subcontracted with River City Asphalt to supply Class I and Class V mineral aggregate and bituminous material for use in the project.[56] River City Asphalt placed a temporary bituminous hot mix plant in a farm field adjacent to northbound TH 35.[57] The plant was referred to as the Ellendale Plant and was located on property owned by Mark Sorenson, the owner of Sorenson Appliances in Geneoa, Minnesota.[58] Mr. Sorenson indicated that he allowed River City Asphalt to place its plant on his property and in return River City Asphalt did some earth moving and landscaping so that he could develop the property into a campground.[59] The Ellendale site for River City’s hot mix plant was not used as a plant site prior to Project 2480-92 and was not used as a plant site after the project.[60] The River City hot-mix plant was a temporary plant that did not have a fixed place of business, nor did it regularly supply bituminous hot mix from the Ellendale location.[61] River City Asphalt utilized the Wondra Pit to provided Class I and Class V mineral aggregate for Project 2480-92.[62] The mineral aggregate from the Wondra Pit was hauled to the project site and was put on the shoulders of the roadway or used for the base of the temporary crossovers.[63]
Valley Paving hired various trucking operators to work on the project, including Dulas Excavating, Inc., Dahl Trucking, McPhillips Trucking; Witte Brothers, Mesenbrink Construction, and River City Asphault, Inc.[64] These trucking firms and their employees were hired to deliver aggregate materials to the job site using trucks. The aggregate material was prepared at an off-site facility where it was loaded onto trucks operated by employees of the trucking firms and delivered to the job site. At the job site, some of the material was deposited in windrows on the road bed to be further spread and compacted, and some of it was dumped into hoppers and deposited from the hoppers onto the roadbed.[65] The parties stipulated as to the business addresses of each of these trucking operators and the names of their employee drivers who worked on the 2480-92 project.[66] Valley Paving contends that the practice in the industry at the time this contract was bid and awarded was to treat workers who hauled bituminous materials to the job site of state-funded road construction projects as being outside the scope of the Prevailing Wage law. Accordingly, in preparing its bid, Valley Paving claims that it did not include enough payroll expense to pay the drivers of these trucks more than market rate wages.[67]
The Department of Transportation commenced an investigation of Valley Paving’s work under State Contract No. S99162 as a result of complaints received from employees and review of company records. Based upon a review of payroll records, Mn/DOT investigators arrived at information relating to the amount of back wages owed.[68] Mn/DOT contends that, based on its review of the time cards and payroll records of trucking operators, particular employee drivers are owed back wages based on the contract classification total wage rate minus the bona fide fringe benefits paid by the contractor to a third party.[69] The State argues that the overtime should be based on 1½ times the hourly rate paid to the employee, consisting of the basic hourly rate of pay plus fringe benefit contributions.[70] Valley Paving disputes this contention, and asserts that, even if these drivers are to be paid prevailing wage, payment of 1½ times the hourly rate on cash paid in lieu of fringe benefits is not authorized or required by law.[71] Valley Paving does, however, agree that, if the State’s methodology is deemed to be correct, the amounts indicated in the Stipulation as owing are otherwise correct.[72] The parties also stipulated as to the amounts that would be owed to particular employee drivers of the trucking operators should it be determined that they were to be paid prevailing wage but that the amount should not include overtime on cash paid in lieu of fringe benefit contributions.[73] Valley Paving did not concede that these employees should be paid prevailing wage, but agreed that the State’s figures are accurate if it is decided that they should be paid prevailing wage.
III. Contentions of Parties and Analysis
The primary
issues raised by the parties in their cross motions for summary disposition are
(1) whether the laborers performing work
for Valley Paving’s subcontractors on State Contract S99162 are covered by the
PWL in this instance; and (2) if so,
the amount of back pay owing to those workers.
With respect to the second issue, the parties disagree concerning two
matters: the proper treatment of cash
paid in lieu of benefits in the calculation of overtime pay; and whether all
hours worked by a particular employee each day or each work week regardless of
the project must be considered in determining the overtime obligation, or whether
only those hours worked by the employee on the particular state highway project
in question should be counted. Each of
these issues, and the parties’ contentions, will be discussed below.
A. Applicability
of PWL to Truck Drivers Employed by Valley Paving’s Subcontractors
In its Motion for Summary Disposition, Mn/DOT asserted as a threshold matter that Valley Paving is subject to the State Prevailing Wage Act for all activities on State Contract No. S99162 and that Mn/DOT can properly enforce the PWL in a contested case proceeding such as this. MN/DOT acknowledges that Valley Paving did, in fact, pay its own workers the State prevailing wage on Contract S99162, but alleges that it did not require all of its subcontractors to pay the proper wages. In particular, Mn/DOT argues that hot-mix delivered from the River City Asphalt Plant set up at the Ellendale site was not exempt from the PWL under the commercial establishment exception set forth in Minn. Stat. § 177.44, subd. 2. Valley Paving indicated in its Cross Motion for Summary Disposition that it objects to the State’s “newly expansive interpretation” of the PWL, which it contends is “being applied retroactively to jobs that were bid and let and performed at a time when the road construction industry and Mn/DOT had a different, narrower, understanding of the scope of the PWL.” If the interpretation is upheld, Valley Paving asserted that it will become responsible for the payment of wages that it did not take into consideration when it submitted its bid on the project. Valley Paving contends that the drivers who hauled materials to and from the work sites fall within the exception contained in Minn. Stat. § 177.44, subd. 2. Valley Paving further argues that Mn/DOT should be estopped from enforcing its new interpretation of the Act retroactively, even if it is a permissible interpretation of the PWL.
The Administrative Law Judge has determined, in accordance with numerous other rulings, that the Department of Transportation is responsible for civil enforcement of the prevailing wage law and is entitled to use contested case proceedings to enforce compliance with the PWL.[74] The PWL has been in effect since 1973 and applies to all companies who work on state-funded construction projects in Minnesota. Valley Paving, as the low bidder awarded a state contract worth more than $2 million in state and federal funds, knew or should have known of the PWL. It is significant that a notice concerning the PWL, a statement that Mn/DOT intended to enforce the PWL, and a list of the wage rates to be paid were specifically included in the contract signed by Valley Paving. In fact, the parties stipulated that “Valley Paving, the prime contractor on Project 2480-92, is subject to Mn/DOT’s standard contract specifications and by contract is required to pay the state and federal prevailing wage rates on this project as applicable.”[75] The parties further stipulated that Valley Paving, as prime contractor, is also required by contract and standard contract specifications, to insure that its subcontractors, and any other workers on the project are paid the required state or federal prevailing wage rate as applicable.”[76] The doctrine of estoppel is not applicable here since Valley Paving was on notice that the law would be enforced and there has been no showing of any act by the State on which Valley Paving relied to its detriment.
The Administrative Law Judge has also concluded that the Prevailing Wage Law is properly applied to the employee drivers of trucking operators that were used by Valley Paving on State Contract S99162. The commercial establishment exception contained in Minn. Stat. § 177.44, subd. 2, specifies that the statute does not apply to wage rates and hours of employment of laborers or mechanics “engaged in the processing or manufacture of materials or products or to the delivery of materials or products by or for commercial establishments which have a fixed place of business from which they regularly supply the processed or manufactured materials or products.” (Emphasis added.) The drivers employed by the trucking operators used by Valley Paving as subcontractors on the project do not fall within this exception because there was no fixed place of business during the 1999 construction season from which bituminous mix was regularly supplied. To the contrary, the Ellendale site was not an established pit or a commercial hot mix facility, but merely a temporary site. The hot-mix plant was simply a portable plant that was moved to the Ellendale site and removed from that site when the project was completed. The hot-mix plant did not “regularly supply” bituminous from the Ellendale pit since the plants were moved in and out of the Ellendale site. The production of a product for a single company on a temporary basis for a few months does not constitute “regularly supplying a product” within the meaning of the statute. The commercial establishment exception thus does not preclude the applicability of the PWL to the employees of trucking operators who were used by Valley Paving as subcontractors on the project.
The further question is whether these employees were engaged in the type of work covered by the PWL. Minn. Stat. § 177.44, subd. 2, states that the PWL applies to “laborers or mechanics who deliver mineral aggregate such as sand, gravel, or stone which is incorporated into the work under the contract by depositing the material substantially in place, directly or through spreaders, from the transporting vehicle.” It is undisputed that the construction of the highway shoulder on the project at issue in this case involved dumping aggregate into a shouldering machine or a windrow next to the machine. This operation amounts to placing the mineral aggregate “substantially in place” within the meaning of Minn. Stat. § 177.44, subd. 2, and thus the work performed by truckers in this regard is covered by the PWL. Finally, the work involved in constructing the roadbed is covered by the PWL because it, again, involves placing the material substantially in place in a series of “lifts” or layers of mineral aggregate, each of which is leveled and compacted.
These conclusions are supported by the findings of Administrative Law Judge Mihalchick in the Bauerly Brothers case as well as the decisions issued in that case in August of 2002 and April of 2003 by Deputy Commissioners Weiszhaar and Differt. In Bauerly Brothers, [77] Judge Mihalchick initially determined that Mn/DOT was authorized to bring a contested case proceeding to enforce the PWL and was not estopped from enforcing the prevailing wage requirements. He concluded that Bauerly Brothers, as the prime contractor providing labor and materials on three State-funded highway construction projects, “was required to assure that all workers performing work under the contracts, including its own employees and employees of subcontractors, were paid the prevailing wage as required under Minn. Stat. § 177.44.”[78] Judge Mihalchick also determined that the methods used to deliver aggregate and asphalt in specialized trucks and trailers directly into the hoppers of the moving shouldering machines or pavers, or in windrows on the roadbed immediately in front of the moving shouldering machines, pavers, or graders, constituted “depositing the material substantially in place, directly or through spreaders, from the transporting vehicle,” within the meaning of Minn. Stat. § 177.44, subd. 2.[79] In connection with this conclusion, Judge Mihalchick noted that the mere fact that the material was subsequently spread did not mean that it was not substantially in place. Therefore, it was determined that the prevailing wage must be paid to the drivers who performed such work on the projects.[80] Because Bauerly Brothers was the prime contractor providing labor and materials and not a separate commercial establishment or materials provider producing and delivering aggregate and asphalt products to the prime contractor, Judge Mihalchick found that the exception set forth in Minn. Stat. § 177.44.subd. 2, did not apply to Bauerly Brothers for these contracts. In this regard, he pointed out that “[t]he employee truck drivers were not delivering materials for a materials provider [but instead were] delivering them for the prime contractor from pits and plants owned or leased and operated by the prime contractor.”[81]
Judge Mihalchick also determined that certain pits used on the projects were “commercial establishments which have a fixed place of business from which they regularly supply the processed or manufactured materials or products” within the exception set forth in Minn. Stat. § 177.44, subd. 2, because they were stationary places of business with stock piles and equipment brought in as necessary to maintain the stock piles and deliver product, and were in operation regularly supplying material to Bauerly Brothers’ divisions and to other contractors prior to and at the time the projects were started.[82] Judge Mihalchick indicated that the statute did not require that there be sales or sales to the public or that the product be available to all bidders on state highway projects for the exception to apply.[83] However, Judge Mihalchick found that several other pits from which aggregate was supplied to the project did not fall within the exception because they were not in operation immediately before the projects they served were commenced and thus had not “regularly supplied” the processed materials or products.[84] Judge Mihalchick also concluded that the hot-mix plants from which asphalt for the projects was supplied did not fall within the exception set forth in the first sentence of Minn. Stat. § 177.44, subd. 2, because they did not have a “fixed place of business.”[85] Judge Mihalchick further found that no exemption applied to truck drivers hauling material off the project sites or employee truck drivers of disadvantaged business enterprises who served as subcontractors.[86] Judge Mihalchick’s findings were, in large part, upheld by the Deputy Commissioner of Transportation in two later decisions.[87]
B. Treatment
of Cash Paid in Lieu of Fringe Benefit Contributions
Apart from these threshold issues, the parties’ briefs primarily focused upon the manner in which State law should be applied to calculate the overtime that should be paid to the drivers employed by the trucking subcontractors on the project. The PWL states that “a laborer or mechanic employed by a contractor, subcontractor, agent, or other person . . . may not be permitted or required to work longer than the prevailing hours of labor [which, under Minn. Stat. § 177.42, subd. 4, may not be more than eight hours per day or more than 40 hours per week] unless the laborer or mechanic is paid for all hours in excess of the prevailing hours at a rate of at least 1½ times the hourly basic rate of pay of the laborer or mechanic” and that “a laborer or mechanic may not be paid a lesser rate of wages than the prevailing wage rate in the same or most similar trade or occupation in the area.”[88] The PWL defines the term “prevailing wage rate” to mean the “hourly basic rate of pay plus the contribution for health and welfare benefits, vacation benefits, pension benefits, and any other economic benefit paid to the largest number of workers engaged in the same class of labor within the area . . . .”[89] The PWL defines “hourly basic rate” to mean “the hourly wage paid to any employee.”[90] Contractors are allowed to pay the total rate (the base rate plus the fringe rate) in accordance with the prevailing wage rates that are published by the Minnesota Department of Labor and Industry either by paying cash wages to the employee (referred to by the parties as paying “cash in lieu of benefits”) or by paying some combination of cash wages and bona fide fringe benefit costs.
Mn/DOT contended that the “hourly basic rate of pay” to which the overtime multiplier is applied should be interpreted to mean the full wage rate paid to the employee. If contributions were made to a bona fide fringe benefits program on behalf of employees, both parties agree that the fringe benefit contribution made by the contractor should be deducted from the amount paid to the employee before the overtime rate is calculated. However, where the subcontractors on the project did not pay fringe benefits on behalf of each employee into a bona fide fringe benefit program, Mn/DOT argued that the benefits must be paid in cash directly to the employees as part of their hourly wage, and asserts that the overtime rate should be calculated by taking 1½ times this total rate (the basic rate plus cash paid in lieu of benefits). Mn/DOT asserted that this interpretation is supported by the fact that the Minnesota Legislature failed to adopt language contained in both the federal Contract Work Hour Safety Standards Act and the Wisconsin Prevailing Wage Statute that expressly excluded benefits as part of the basic hourly rate, and finds this indicative of a legislative intent to have the broadest possible definition of “hourly basic rate” under the Minnesota law.
Valley Paving argued in response that, even if the employee-drivers must be paid prevailing wage, the State’s methodology of basing the overtime rate on the “total wage rate” rather than the “hourly basic rate” improperly inflates the amount owed to the employees. In this regard, Valley Paving emphasizes that the PWL clearly states that the overtime rate should be 1.5 times the “hourly basic rate of pay of the laborer,”[91] the term “hourly basic rate” is defined to mean “the hourly wage paid to any employee,”[92] and the term “prevailing wage” is defined to include the “hourly basic rate” plus the benefit contribution. Valley Paving argues that, as a result, the overtime rate should be calculated as 1.5 times the basic hourly rate of pay not including the benefit contribution. Because there is no ambiguity in the statute, Valley Paving asserts that there is no basis for the State’s effort to meld “hourly basic rate” and “prevailing wage rate.”
Counsel for the parties acknowledged during a conference call on April 4, 2003, that the final order issued by the Deputy Commissioner in the Bauerly Brothers case in April of 2003 resolved the issue pertaining to the proper treatment of cash paid in lieu of fringe benefit contributions when calculating overtime. In Bauerly Brothers, Judge Mihalchick initially determined with respect to the back pay calculation that the contribution for benefits should not have been included in the hourly basic rate in calculating the overtime that should be paid because he concluded that, under the statutory definitions, the “hourly basic rate does not include the benefits contribution and neither does the overtime calculation.”[93] Judge Mihalchick concluded that “Bauerly Brothers’ trucking subcontractors failed to pay the prevailing wage to certain truck driver employees in the amounts determined by the Department, except that the Department included the benefits contribution in the hourly basic rate for overtime calculations.”[94] He recommended that the Commissioner of Transportation order that Bauerly Brothers “pay all employee truck drivers delivering mineral aggregate and asphalt to the projects in this matter the difference between the prevailing wage in their classifications and areas and the amounts that were actually paid to them by Bauerly Brothers or its subcontractors.”[95]
On August 28, 2002, Doug Weiszhaar, then Deputy Commissioner/Chief Engineer of the Department of Transportation, issued his Findings, Conclusions, Order, and Memorandum in the Bauerly Brothers case, after being delegated authority by the Commissioner of Transportation to make the agency’s final decision.[96] Deputy Commissioner Weiszhaar noted that he agreed with Judge Mihalchick’s determination that an employer’s benefits contribution to an employee should not be included when calculating the pay rate for overtime, and stated that a contrary interpretation would lead to the unreasonable result that a worker who takes cash in lieu of benefits must be paid a higher wage for overtime than a co-worker who does not.”[97] On April 3, 2003, a new Deputy Commissioner/Chief Engineer, Douglas H. Differt, issued a Final Order that superseded the August 28, 2002, Order issued by Deputy Commissioner Weiszhaar. Deputy Commissioner Differt deleted the last sentence contained in Judge Mihalchick’s Conclusion No. 14 (which stated that “hourly basic rate’ does not include the benefits contribution and neither does the overtime calculation”) and replaced it with the following: “Thus, the ‘hourly basic rate’ does not include the benefits contribution. Nevertheless, the prevailing rate for fringe benefits is owed on both straight time and overtime. The total required overtime rate is calculated by multiplying the basic hourly rate by 1.5, then adding the prevailing fringe rate.” Deputy Commissioner Differt explained that, while he agreed with Judge Mihalchick’s interpretation that an employer’s benefits contribution to an employee should not be included in the hourly basic rate when calculating the basic pay rate for overtime, he believed that “the same prevailing fringe rate is due on both overtime and straight time” and indicated that “[t]he total required overtime rate is calculated by multiplying the prevailing basic hourly rate (i.e., the rate exclusive of fringe benefits) by 1.5, then adding the prevailing fringe rate.” The Administrative Law Judge has recommended that Deputy Commissioner Differt’s approach be followed in the present case and that the parties’ motions be denied to the extent that they urged adoption of different approaches.
C. Treatment of Non-Project Hours Worked by
Truck Drivers
In April of 2003, counsel for the parties informed the Administrative Law Judge that a remaining minor issue with respect to the overtime calculation had not yet been briefed, and it was agreed that the parties would submit additional letter briefs regarding that issue. By letters dated April 8, 2003, May 21, 2003, and July 23, 2003, Mn/DOT argued that both state and federal laws (the Minnesota Prevailing Wage Act, the Federal Fair Labor Standards Act (“FLSA”) and the Federal Labor Standards provisions set forth in 29 C.F.R. part 5) apply to this case to require time and one-half after either forty hours per week or eight hours per day and asserted that overtime pay must be based on the hours worked that week by the employee, regardless of the number of individual projects on which the employee worked. Mn/DOT contends that it is the responsibility of the prime contractor and the subcontractor to manage employees’ hours if they wish to minimize the amount of overtime that they must pay under state and federal law. The Department points out that the FLSA provides for pay at a rate of “one and one-half times the regular rate” for all hours over 40 hours per week.[98] The Department also emphasizes that FLSA fact sheets obtained from the website of the U.S. Department of Labor indicate, among other things, that the FLSA requires that overtime be paid when hours worked exceed 40 in the workweek at the rate of time and one half the regular rate of pay; a “typical problem” is the “failure to combine the hours worked for overtime purposes by an employee in more than one job classification for the same employer within the same workweek”; the workweek “ordinarily includes all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place”; and “time spent by an employee in travel as part of his/her principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked.” Mn/DOT further contends that Valley Paving is subject to the FLSA because it is “engaged in commerce or in the production of goods for commerce”[99] and asserts that Valley Paving has not borne its burden to show that it is exempt from the Fair Labor Standards Act.[100] The Department thus argues that Valley Paving falls within the Minnesota PWA as well as the federal FLSA and is obligated to pay overtime at a rate of 1-½ times the prevailing wage rate for hours over 40 per week for each classification of labor.
Valley Paving responded to these arguments in letters dated April 18, 2003, June 10, 2003, and July 22, 2003. Valley Paving contends that the State’s position has the effect of overstating the overtime hours by any worker who was not exclusively working on the prevailing wage project that was the subject of the enforcement action. For example, if an employee driver worked 40 hours on a completely different project, and then worked 40 hours on Valley Paving’s project, the entire 40 hours would be deemed overtime to be paid at the prevailing wage rate under Mn/DOT’s suggested approach. Valley Paving argues that this interpretation is contrary to the express language of the prevailing wage law and would make it impossible for a contractor to predict its labor costs when bidding a job that was subject to the prevailing wage law since the contractor would have no idea whether a subcontractor’s drivers would be working on other projects during the week or would be exclusively dedicated to a single project.
After careful consideration, the Administrative Law Judge is persuaded that it is appropriate to require that overtime pay be required only if warranted based on the number of hours worked by a laborer for Valley Paving’s subcontractors on the particular highway project involved in this case. The language of Minn. Stat. § 177.44, subd. 1, makes it clear that laborers or mechanics doing “all or part of the work under a contract” to which the State is a party may not be permitted or required to work longer than the prevailing hours of labor unless they are paid for all hours in excess of the prevailing hours at a rate of at least 1½ times the hourly basic rate.[101] Thus, the requirement to pay overtime on hours in excess of prevailing hours pertains only to laborers or mechanics doing “all or part of the work under a contract.” There is no requirement in the statute that hours worked by laborers on other jobs for employers who are unrelated to Valley Paving be included in the calculation of hours worked in order to ascertain whether overtime at the prevailing rate was required. Accordingly, overtime pay should be based only on hours worked by a particular laborer for one of Valley Paving’s subcontractors on the specific project involved in the enforcement action, and hours that that person may have worked on other unrelated jobs should not be included in the overtime computation. In other words, the hours worked by a laborer must be tied to the particular highway contract in order to count towards overtime. Only if an individual worked in excess of 8 hours per day or 40 hours per week on State Contract S99162 should Valley Paving be held responsible for the prevailing wage overtime pay requirements. Because contractors have no way of knowing or controlling whether laborers will be working for different employers on unrelated jobs and thereby accrue hours in excess of 8 per day and 40 per week, the recommended approach will enable contractors bidding on state construction projects to more accurately predict their labor costs.
Contrary to Mn/DOT’s contentions, it would not seem appropriate to rely upon the FLSA in this instance. The only violation alleged in the Notice of and Order for Hearing was a violation of the State PWL. In addition, the two-year FLSA statute of limitations has expired,[102] and the drivers involved in this case are all employees of subcontractors and not of Valley Paving.[103] In any case, however, the FLSA supports the view that hours worked for unrelated employers should not be counted towards the overtime requirement.[104] In fact, a footnote to the FLSA rules notes that, “Of course, an [independent, unrelated] employer should not be held responsible for an employee’s action in seeking, independently, additional part-time employment.”[105] In addition, while neither party was able to locate applicable precedent arising under the Davis-Bacon Act, it appears based upon the language of the Act that its overtime obligation also only applies to hours worked for a contractor or subcontractor in the performance of work on a particular contract and that hours worked on other jobs are not taken into account for purposes of determining overtime compensation.[106] In fact, a Contractor’s Guide to Davis Bacon Wage Requirements available on the HUD’s website notes that overtime hours are defined as “all hours worked on the site of the work in excess of 40 hours in any work week” and that the “site of work” usually means “the boundaries of the project” or “adjacent or nearby property used by a contractor or subcontractor in the construction of the project, like a fabrication site.”[107]
The approach recommended by the Administrative Law Judge in this case appears to be consistent with the general rule noted in Corpus Juris Secundum:
Generally, in the absence of collusion between several employers for whom a single employee works, a particular employer is required to pay overtime only if the employee is engaged in work for him for more than forty hours a week. . . . Where one is jointly employed by several employers, each is liable under the act for overtime compensation, but, in determining whether two employers are acting independently in working an employee more than forty hours in a week, the facts of the particular case are controlling. The significant element is the doing of work for both jointly, and in order to render them jointly liable for overtime compensation it must appear that both employers undertook the task involved and had joint control over its performance.[108]
Where, as here, there has been no demonstration that Valley Paving or its subcontractors on Project S99162 are affiliated or linked with the entities that employed drivers on other jobs during the same work days or work weeks that they worked on S99162, it would be improper to count the hours worked on those other unrelated jobs in determining their total regular time hours worked for the purposes of calculating Valley Paving’s overtime requirement.
IV.
Conclusion
In conclusion, it is recommended that the parties’
cross motions for summary disposition be granted in part and denied in
part. Consistent with the April 2003
decision of the Deputy Commissioner in Bauerly Brothers, it is recommended that
the Commissioner find that laborers performing work for Valley Paving’s
subcontractors on State Project S99162, including those delivering hot-mix from
the Ellendale site, constructing the highway shoulder, and constructing the
roadbed, were subject to the requirements of the Minnesota Prevailing Wage
Laws, and that Valley Paving breached its contracts with the State and violated
Minn. Stat. § 177.44 by failing to ensure that the subcontractors on this State
highway construction project paid prevailing wages to their driver
employees. With respect to the treatment of cash paid in lieu of fringe benefit
contributions, it is recommended that the decision in Bauerly Brothers be
followed and that the calculation of the total required overtime rate in
this matter be revised. The amount
should be calculated by multiplying the basic hourly rate (i.e., the rate
exclusive of fringe benefits) by 1.5, then adding the prevailing fringe
rate. Finally, where laborers worked on projects during the workweek other than S99162,
it is recommended that Valley Paving be found responsible only for the
provision of overtime pay based upon the prevailing wage rate when a laborer
exceeded 8 hours per day or 40 hours per week on S99162, since there is no
evidence that Valley Paving and other entities who employed the laborer on
another job were affiliated or related. The Department thus should revise its calculation of additional
wages owing to ensure that hours worked by a driver on other jobs are not
counted towards that employee’s regular time hours for purposes of calculating
Valley Paving’s liability for overtime.
The Department’s motion is denied and Valley Paving’s motion is granted
to the extent consistent with this ruling.
Because this ruling resolves the pending issues, there is no need for a
further evidentiary hearing in this matter.
B.L.N.
[1] Sauter v. Sauter, 70 N.W.2d 351, 353 (Minn. 1995); Louwagie v. Witco Chemical Corp., 378 N.W.2d 63, 66 (Minn. App. 1985); Minn. Rules, 1400.5500K; Minn.R.Civ.P. 56.03.
[2] See Minn. Rules 1400.6600 (2002).
[3] Illinois Farmers Insurance Co. v. Tapemark Co., 273 N.W.2d 630, 634 (Minn. 1978); Highland Chateau v. Minnesota Department of Public Welfare, 356 N.W.2d 804, 808 (Minn. App. 1984).
[4] Thiele v. Stitch, 425 N.W.2d 580, 583 (Minn. 1988); Hunt v. IBM Mid America Employees Federal, 384 N.W.2d 853, 855 (Minn. 1986).
[5] White v. Minnesota Dept. of Natural Resources, 567 N.W.2d 724 (Minn. App. 1997).
[6] Id.; Murphy v. Country House, Inc., 307 Minn. 344, 3351-52, 240 N.W.2d 507, 512 (Minn. 1976); Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1988).
[7] Ostendorf v. Kenyon, 347 N.W.2d 834 (Minn. App. 1984).
[8] See, e.g., Celotex, 477 U.S. at 325; Thompson v. Campbell, 845 F.Supp. 665, 672 (D.Minn. 1994); Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988); Greaton v. Enich, 185 N.W.2d 876, 878 (Minn. 1971).
[9] Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250-251 (1986).
[10] Stipulation of Facts, ¶ 2.
[11] Minn. Stat. § 177.42, subd. 2.
[12] Id. at subd. 3.
[13] Id. at subd. 4.
[14] Id. at subd. 5.
[15] Id. at subd. 6.
[16] Minn. Stat. § 177.44, subd. 1.
[17] Id.
[18] Id. at subd. 2.
[19] Id.
[20] Id. at subd. 5.
[21] Id. at subd. 7.
[22] Stipulation of Facts, ¶ 4.
[23] Id., ¶¶ 1, 5.
[24] Id., ¶ 12.
[25] Id., ¶ 21.
[26] Id., ¶ 13.
[27] Id., ¶¶ 17-18.
[28] Id., ¶¶ 15, 19, 20.
[29] Id., ¶ 8.
[30] Id., ¶¶ 8, 16; see also Affidavit of Groshens at ¶ 8 and Ex. A to Department’s Memorandum at p. 27...
[31] Affidavit of Robert P. Richards, ¶ 10.
[32] Id., ¶ 12; Exs. B and B1 to Department’s Memorandum at 1801.
[33] Stipulation of Facts, ¶ 6
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id., ¶ 7.
[39] Id.
[40] Id.
[41] Id., ¶ 9.
[42] Id.
[43] Id.
[44] Id.
[45] Id., and ¶ 10.
[46] Id.
[47] Id.
[48] Id.
[49] Id., ¶ 11.
[50] Id.
[51] Id.
[52] Id.
[53] Id.
[54] Id.
[55] Id.
[56] Id., ¶ 6.
[57] Id., ¶ 47.
[58] Id, ¶¶ 9, 47.
[59] Id., ¶ 47.
[60] Id., ¶ 49.
[61] Id., ¶ 50.
[62] Id., ¶¶ 9, 48.
[63] Id., ¶ 51.
[64] Id., ¶ 21. Valley Paving indicated in its Memorandum in Support of its Motion for Summary Judgment at 3 that it followed the standard industry practice by hiring trucks and paying a rental rate for the truck and driver. The truck owner then paid a portion of the rental rate to the drivers as wages. These wages reflected the market rate, which was lower than the prevailing wage rate in the region in which the work was performed.
[65] Id., ¶ 21.
[66] Id, ¶¶23-34.
[67] Id., ¶ 22.
[68] Affidavit of Charles Groshens attached to Mn/DOT’s Memorandum, ¶¶ 2, 7; Affidavit of Natasha Ludens attached to Mn/DOT’s Memorandum, ¶¶ 6-Stipulation of Facts ¶¶ 29-46.
[69] Stipulation of Facts, ¶¶ 35, 37, 39, 41, 43, 45.
[70] Id.
[71] Id.
[72] Id.
[73] Id., ¶¶ 36, 38, 40, 42, 44, 46.
[74] Minn. Stat. § 177.44, subd. 7; Southern Minnesota Construction v. Minn. Dept. of Transportation, 637 N.W.2d 339 (2002); L & D Trucking v. Minn. Dept. of Transportation, 600 N.W.2d 734, 737 (Minn. App.), rev. denied (Minn. Dec. 21, 1999); International Union of Operating Engineers, Local 49 v. Minn. Dept. of Transportation, No. C6-97-1582 (Minn. App. Feb. 24, 1998) (unpublished) (attached as Attachment A to the Department’s Memorandum in Support of Motion for Summary Judgment); Faribault County v. Minnesota Dept. of Transportation, 472 N.W.2d 166, 169-70 (Minn. App. 1991).
[75] Stipulation of Facts, ¶ 52.
[76]. Id.
[77] In the Matter of Bauerly Brothers, Inc., OAH Docket No. 12-3000-11993-2 (May 10, 2002) at 22-23.
[78] Id.
[79] Id. at 23.
[80] Id.
[81] Id.
[82] Id. at 23-24.
[83] Id. at 24.
[84] Id.
[85] Id.
[86] Id.
[87] Doug Weiszhaar, Deputy Commissioner/Chief Engineer of the Department of Transportation, issued his Findings, Conclusions, Order, and Memorandum in the Bauerly Brothers case, on August 28, 2002, after being delegated authority by the Commissioner of Transportation to make the agency’s final decision. With the exception of modification of a finding and a conclusion to make it clear that that the issue of whether the Prevailing Wage statutes apply to producers of aggregate materials was not being decided in this proceeding, Deputy Commissioner Weiszhaar adopted the Findings and Conclusions of Judge Mihalchick. In particular, he agreed that the Department was not estopped from enforcing the PWL against Bauerly Brothers and that the aggregate and hot-mix materials were delivered “substantially in place” within the meaning of Minn. Stat. § 177.44, subd. 2. Bauerly Brothers was ordered to pay all employee truck drivers delivering mineral aggregate and asphalt to the projects the difference between the prevailing wage in their classifications and areas and the amounts that were actually paid to them by Bauerly Brothers or its subcontractors. He also ordered the Department’s Office of Construction and Contract Administration (OCCA) to calculate the proposed specific amount Bauerly Brothers would be required to pay. He indicated that Bauerly Brothers would be afforded an opportunity to respond and thereafter the Deputy Commissioner would issue a second and final order specifying the amount Bauerly Brothers would be required to pay in additional wages. On April 3, 2003, a new Deputy Commissioner/Chief Engineer, Douglas H. Differt, issued a Final Order that superseded the August 28, 2002, Order issued by Deputy Commissioner Weiszhaar. Deputy Commissioner Differt modified Finding No. 9 and Conclusion No. 5 of Judge Mihalchick’s Report in the same way as Deputy Commissioner Weiszhaar. He also agreed with Deputy Commissioner Weiszhaar that the Department was not estopped from enforcing the PWL against the Respondent, the materials were delivered “substantially in place” under the statute, and Bauerly Brothers’ failure to pay prevailing wages or to assure that its subcontractors paid prevailing wages violated Minn. Stat. § 177.44. Bauerly Brothers’ motion for partial dismissal was denied, and the proposal to declare Bauerly Brothers a non-responsible bidder for future bids was rejected as excessive. Portions of these decisions discussing the issue of the treatment of cash paid in lieu of benefits are discussed below.
[88] Minn. Stat. § 177.44, subd. 1 (emphasis added).
[89] Minn. Stat. § 177.42, subd. 6.
[90] Id. at subd. 5.
[91] Minn. Stat. § 177.44, subd. 1.
[92] Minn. Stat. § 177.42, subd. 5.
[93] In the Matter of Bauerly Brother, Inc., OAH Docket No. 12-3000-11993-2 (May 10, 2002) at 25.
[94] Id.
[95] Id.
[96] Findings, Conclusions, Order, and Memorandum of Deputy Commission Weiszhaar (Aug. 28, 2002).
[97] Id. at 4.
[98] 29 U.S.C. § 207(a) (1).
[99] Id.
[100] See Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 206 (1966); Gilbreath v. Daniel Funeral Home, Inc., 421 F.2d 504, 508 (8th Cir. 1970) (government must initially prove that an employee was covered by the FLSA because he was engaged in commerce or in the production of goods for commerce; burden of proof then shifts to the employer to show in what pay periods the employee was not engaged in commerce).
[101] Minn. Stat. § 177.44, subd. 1.
[102] See 29 U.S.C. § 255.
[103] See 29 U.S.C. § 207(a)(1).
[104] See 29 C.F.R. 791.2(a), attached to Valley Paving’s July 22, 2003, letter (if “two or more employers are acting entirely independently of each other and are completely disassociated with respect to the employment of a particular employee, who during the same workweek performs work for more than one employer, each employer may disregard all work performed by the employee for the other employer (or employers) in determining his own responsibilities under the Act”; see also Walling v. Friend, 156 F.2d 429 (8th Cir. 1946) (one employer is not responsible for overtime based on hours worked for unrelated employers).
[105] 29 C.F.R. 791.2(a), n. 5.
[106] The Davis-Bacon Act states that the wages of laborers and mechanics “employed by any contractor or subcontractor in his performance of work on any contract of the character specified in section 329 of this title” shall be computed based on a 40-hour standard workweek, and that work over that standard workweek “shall include compensation at a rate not less than one and on-half times the basic rate of pay . . . .” 40 U.S.C. § 328(a).
[107] See www.hud.gov/offices/olr/olrwrcp2.html , section 2.4(f) and (g).
[108] 51B C.J.S. Labor Relations § 1144 at 623-24.