                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-1691


JORGE AMAYA; MIGUEL MARTINEZ; CARLOS A. REAL; JAIME
ZUBIETA; JOSE SANABRIA; DONACIANO CRUZ; CARLOS JOSE MUNOZ
BARILLAS; AMADA M. CLEMENTE; DAGOBERTO TREJO GUZMAN; MOISES
W. PORTILLA HUAMAN; MARIO ANTONIO SIGUENZA DIAZ; ROBERTO
CARLOS BONILLA REYES; JOEL CHRISTIAN GUEVARA; FRANCISCO
CABALLERO; RAUL D. AMPUDIA; CARLOS SAMUEL SANABRIA; JOSE
MANUEL CARTAGENA; MARDIN J. MOZ GIRON; JACOBO MEDINA
ZELAYA; JEFFREY O. COREA MONTALVAN; JUAN CAMPOS−PEREZ; JUAN
PABLO DE PAZ; MARCOS ANTONIO FLORES,

                Plaintiffs − Appellants,

           v.

POWER DESIGN, INC.,

                Defendant − Appellee.

----------------------------------------
SECRETARY OF LABOR,

                Amicus Supporting Appellant.

ASSOCIATED BUILDERS AND CONTRACTORS, INC.,

                Amicus Supporting Appellee.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:14−cv−00446−JFM)


Argued:   May 10, 2016                     Decided:   August 15, 2016


Before DIAZ, FLOYD, and THACKER, Circuit Judges.
Vacated and remanded by published opinion. Judge Diaz wrote the
opinion, in which Judge Floyd and Judge Thacker joined.


ARGUED: Daniel Adlai Katz, THE LAW OFFICES OF GARY M. GILBERT &
ASSOCIATES, P.C., Silver Spring, Maryland, for Appellants.
Leslie A. Stout-Tabackman, JACKSON LEWIS P.C., Reston, Virginia,
for Appellee. Erin Michelle Mohan, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Amicus Secretary of Labor.       ON
BRIEF: Lucy Brierly Bansal, THE LAW OFFICES OF GARY M. GILBERT &
ASSOCIATES, P.C., Silver Spring, Maryland; Virginia Rae Diamond,
ASHCRAFT & GEREL, LLP, Alexandria, Virginia, for Appellants.
Paul DeCamp, Jeremy S. Schneider, JACKSON LEWIS P.C., Reston,
Virginia, for Appellee. M. Patricia Smith, Solicitor of Labor,
Jennifer S. Brand, Associate Solicitor, William C. Lesser,
Deputy Associate Solicitor, Paul L. Frieden, Counsel for
Appellate   Litigation,  UNITED   STATES  DEPARTMENT  OF  LABOR,
Washington, D.C., for Amicus Secretary of Labor.         Maurice
Baskin, LITTLER MENDELSON, P.C., Washington, D.C., for Amicus
Associated Builders and Contractors, Inc.




                               2
DIAZ, Circuit Judge:

       Appellants,        over     twenty    electrical         construction      workers,

(the “Electrical Workers” or “Workers”) sought unpaid hourly and

overtime      wages       from    Appellee        Power    Design,    Inc.       for     work

completed        under      a      federally       funded       subcontract           between

Walbridge/Brasfield Gorrie Joint Venture and Power Design.

       As relevant to this appeal, the Electrical Workers brought

suit under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201

et    seq.,      seeking        unpaid    minimum         and    overtime       wages     and

liquidated damages.              The district court granted summary judgment

in favor of Power Design.                    For the reasons that follow, we

vacate the court’s judgment and remand for further proceedings.



                                             I.

                                             A.

       In 2010, the U.S. Department of the Navy awarded Walbridge

a    federally     funded       prime    contract    to     design   and    construct       a

facility      at    the    National      Naval     Medical       Center    in    Bethesda,

Maryland.          Walbridge       entered    into    a     subcontract      with       Power

Design (the “NEX Contract”) for electrical work at the new naval

facility.          The    subcontract       expressly      incorporated         the    Davis-

Bacon Act (DBA), 40 U.S.C. § 3141 et seq., and the Contract Work

Hours and Safety Standards Act (CWHSSA), 40 U.S.C. § 3701 et

seq., but not the FLSA.


                                              3
      Power     Design,       in    turn,   hired     RDZ   Electric     to    complete

electrical installation work at the new naval facility, and they

agreed to be bound by the NEX Contract terms.                            Power Design

later     entered     into     an    equivalent      subcontract       for   electrical

installation work with ES & R Construction. 1                          The Electrical

Workers worked for RDZ or ES & R, and their employment was

governed by the relevant subcontract (and therefore also the NEX

Contract).

                                            B.

      The Electrical Workers sued Power Design for violating the

FLSA, but they did not bring claims under the DBA or the CWHSSA. 2

The Workers alleged that the subcontractor “routinely required”

them both to work over forty hours each week and to arrive at

the jobsite fifteen minutes early each day to prepare the site,

but   “did     not    permit       [them]   to    sign-in   on   the    sign-in    sheet

until” the work shift’s “official” start time.                         J.A. A27.    The

Workers also alleged that although Power Design paid them (and

provided some funds to cover the overtime hours), it did not

compensate the Workers “all wages owed for each hour worked” and

failed    to    pay    them    overtime      at    time-and-a-half       their    hourly

rate, as required under the FLSA.                 J.A. A27–28.

      1Power Design ultimately fired RDZ, citing its “repeated[]
and persistent[] fail[ure] to demonstrate compliance with
applicable federal statutes and regulations.” J.A. A221.

      2 They   also brought state law claims not relevant here.


                                             4
       Power Design moved for summary judgment, arguing that “no

reasonable    jury     could   possibly      find   that    [it]     violated   the

[FLSA]” because “there is no applicable independent cause of

action for [the Workers’] overtime claims under the [DBA] . . .

and the [CWHSSA],” which governed the subcontract under which

the Workers performed.         J.A. A173, A181–85.

       The district court granted the motion, finding that “the

contract between [the Electrical Workers] and [Power Design] was

a federal one to which the [DBA] and the [CWHSSA] appl[ied],”

and that neither act “provide[d] a private right of action but

[provided] only for enforcement of the standards they impose by

the Department of Labor.”         Amaya v. Power Design, Inc., No. JFM-

14-446, 2015 U.S. Dist. LEXIS 69165, at *2 (D. Md. May 28,

2015).        Accordingly,      the    Electrical        Workers     “c[ould ]not

circumvent those statutes by bringing claims under the [FLSA].”

Id.

       This appeal followed.

                                       II.

       Because   the     district     court     dismissed      the     Electrical

Workers’ claim at summary judgment, we review that decision de

novo    to   determine    whether     there    is   no     genuine    dispute   of

material fact and that Power Design is entitled to judgment as a

matter of law.       U.S. Dep’t of Labor v. N.C. Growers Ass’n, 377

F.3d 345, 350 (4th Cir. 2004).


                                        5
        As we explain, we find nothing in the relevant statutes

barring the Electrical Workers from pursuing an FLSA claim.                                    We

begin our analysis with a review of the relevant statutes and

cases.       Then we turn to the merits.

                                               A.

                                               1.

       The DBA and CWHSSA apply to federal (or federally funded or

assisted) construction contracts and subcontracts, though they

regulate different aspects of the employment relationship.                                    The

DBA     applies     to       federal    construction         contracts          valued    over

$2,000, and it requires contractors and subcontractors to pay

their       employees    a    “prevailing”          wage   set    by    the    Secretary       of

Labor that consists of a “basic hourly rate of pay” and fringe

benefits. 3       40 U.S.C. §§ 3142(a)–(b), 3141(2).                        Although the DBA

does        not   require      overtime        compensation,           it     specifies       the

calculation        of    overtime      wages    under      “any    federal      law”     to    be

based on the “regular or basic hourly rate” determined by the

Secretary.        § 3142(e) (citing § 3142(2)(A)).                     The CWHSSA applies

to “any” federally funded or assisted construction contracts and

        3
       Under the DBA, “fringe benefits” are employer payments or
contributions to “a trustee or to a third person under a fund,
plan, or program,” such as health insurance, life insurance, or
a pension.     40 U.S.C. § 3141(2)(B).     Payments required by
federal, state, or local law, such as Social Security, do not
qualify as fringe benefits.      Id.; see also Davis-Bacon and
Related Acts Frequently Asked Questions, U.S. Dep’t of Labor,
https://www.dol.gov/whd/programs/dbra/faqs/fringes.htm     (last
visited June 15, 2016) (saved as ECF opinion attachment).


                                               6
subcontracts for public works that are valued over $100,000, and

requires contractors and subcontractors to pay their employees

time and one-half their “basic rate of pay” for all hours worked

over forty each week.          §§ 3701, 3702(a).

     Congress passed the DBA in 1931 to set an earnings floor

for federal contract employees, to protect against substandard

wages, and to promote the hiring of local labor.                                   See Univs.

Research Ass’n, Inc. v. Coutu, 450 U.S. 754, 771, 773–74 (1981);

S.   Rep.    No.     88-963,       at    2   (1964),         as     reprinted        in     1964

U.S.C.C.A.N.       2339,    2339–40.         The       CWHSSA     has   a    complementary

objective: to “bring order to the confusion which . . . marks

the application and enforcement of work standards legislation in

employment     that    results      from     Federal         Government       contracts       or

employment.”       S. Rep. No. 87-1722, at 1 (1962), as reprinted in

1962 U.S.C.C.A.N. 2121, 2121; see also Janik Paving & Constr.,

Inc. v. Brock, 828 F.2d 84, 89 (2d Cir. 1987) (discussing the

act’s   purpose).          Specifically,         the    CWHSSA      seeks     to    make     the

eight-hour     day,     the    forty-hour          workweek,         and     corresponding

overtime     pay     applicable         uniformly       to     federal       contract        and

subcontract work.          S. Rep. No. 1722, at 2.

     While     the    DBA    and    CWHSSA       regulate         different    aspects        of

federal     construction      contracts,         they    have      similar     enforcement

mechanisms, which are internal to the Department of Labor but

reviewable     under    the    Administrative            Procedure          Act,    5     U.S.C.


                                             7
§ 702.           See    40    U.S.C.      §§ 3143–44,        3703.       In   the    case       of   a

violation, both statutes provide for the withholding of contract

funds       by    the    Department          of   Labor      (to   pay      under-    or    unpaid

employees at the prevailing rate) and the possibility of an up

to    three-year         ban    on     the    award     of    federal       contracts      to    the

breaching         contractor         or    subcontractor.             §§ 3142(c)(3),         3144,

3703(b); see also 29 C.F.R. § 5.12.                           The CWHSSA also provides

for    daily       assessed       liquidated           damages       and,     in    some    cases,

criminal         liability.          40      U.S.C.     §§ 3703(b),          3708;    29    C.F.R.

§ 5.8.

       Caselaw suggests that neither statute provides a private

right of action.              See Coutu, 450 U.S. at 768–69, 771–84 (holding

that the DBA “does not confer a private right of action for back

wages under a contract that administratively has been determined

not    to    call       for    Davis-Bacon        work,”      but     declining       to    decide

“whether the Act creates an implied private right of action to

enforce a contract that contains specific [DBA] stipulations”);

see also, e.g., Bane v. Radio Corp. of Am., 811 F.2d 1504, 1987

WL 35851, at *1 (4th Cir. 1987) (unpublished table decision)

(“[T]here         is    no     implied       right     of    private        action    under      the

[DBA].”); United States ex rel. Glynn v. Capeletti Bros., Inc.,

621 F.2d 1309, 1316–17 (5th Cir. 1980) (concluding the same);

Koren v. Martin Marietta Servs., Inc., 997 F. Supp. 196, 217 &

n.28 (D.P.R. 1998) (noting the lack of case law discussing a


                                                   8
private right of action under the CWHSSA but concluding that,

based    on   Supreme       Court   precedent      and   the    act’s    regulatory

scheme, an implied right of action likely does not exist).

                                          2.

     The FLSA, on the other hand, has both a broader purpose and

a different means of enforcement.                It was passed “to eliminate,

as   rapidly         as    practicable,        substandard     labor      conditions

throughout the nation” and “to raise living standards without

substantially curtailing employment or earning power.”                          Powell

v. U.S. Cartridge co., 339 U.S. 497, 509–10 & nn.11–12 (1950),

superseded      on    other    grounds    by     statute,      e.g.,    Fair    Labor

Standards Amendments of 1966, Pub. L. No. 89-601, 80 Stat. 830,

as recognized in Graham v. Town & Country Disposal of W. Mo.,

No. 4:10-CV-00551-NKL, 2010 WL 3927756, at *2 (W.D. Mo. Oct. 4,

2010).

     The FLSA sets a federal minimum wage and maximum forty-hour

workweek      for    all    employees    covered     under     the     act,    and   it

requires covered employers to pay their employees time and one-

half their “regular rate” for all hours worked in excess of

forty each week.           29 U.S.C. §§ 206, 207.        And unlike the DBA and

CWHSSA, the FLSA clearly provides a right of action; employees

may sue in state or federal court for unpaid minimum wages and

overtime compensation, plus liquidated damages.                  § 216(b).




                                          9
                                              B.

      We find two cases instructive to the issue presented here,

Powell    v.    U.S.     Cartridge     Co.,        339   U.S.    497,   and    Masters   v.

Maryland Management Co., 493 F.2d 1329 (4th Cir. 1974).

      Both cases address the interplay between the FLSA and laws

similar in kind and structure to the DBA and CWHSSA.                           In Powell,

workers sued their employers, government contractors, for unpaid

overtime       under    the   FLSA     even    though      the    employment     contract

invoked the Walsh-Healy Act, a law that also regulates federal

contract       employment,      and    does        not   expressly      incorporate      the

FLSA.     See 339 U.S. at 499–502. 4                     The employers, as relevant

here,     argued       that   the     acts    “should       be    construed     as   being

mutually exclusive.”            Id. at 519.

      The Court did not agree.                 First, the Court considered the

statutes’ distinct purposes and applications—most notably, that

while the Walsh-Healey Act applies narrowly to a limited class

of government contracts valued over $10,000, Congress intended

the     FLSA     to     apply     broadly,          with    “narrow      and    specific”

exceptions.        Id. at 515–17.             The Court then noted—as shown by

the FLSA’s “Relation to Other Laws” provision, 29 U.S.C. § 218—

Congress’ “awareness that the coverage of the [FLSA] overlaps

      4A booklet distributed to the workers by one of the
employers provided that the employer “w[ould] pay the legal
overtime rate as provided under the Walsh-Healy Act, and the
[FLSA].”   Powell, 339 U.S. at 501 (emphasis added).    This fact
did not affect the employer’s argument or the Court’s analysis.


                                              10
that of other federal legislation affecting labor standards,”

including the Walsh-Healy Act.                    Id. at 517–18.           Nor was it lost

on   the       Court     that        the     employers        failed        to     show      any

“instance[] . . .            where     compliance          with     one     Act    makes     it

impossible to comply with the other.”                        Id. at 519.           The Court

thus concluded that the acts are “not mutually exclusive” so

that “[t]he applicability of the Walsh-Healy Act . . . does not

preclude the application of the [FLSA].”                      Id. at 519–20.

     In Masters, we confronted a similar question: whether the

FLSA,    CWHSSA,       and    the    Service       Contract       Act     (another     federal

labor statute governing federal contract and subcontract work)

could apply concurrently, and, if so, whether the CWHSSA and the

Service Contract Act require a different overtime calculation

than the FLSA.         493 F.2d at 1331–32.              Relying in part on Powell,

we held that the acts are not “mutually exclusive” and that “the

provisions of all may apply so far as they are not in conflict.”

Id. at 1332.

     As to overtime compensation, we found that applying the

Service     Contract         Act     and    the     CWHSSA     does       not     affect     the

computation      of     overtime       under       the     FLSA.        This      is   because

“regular rate” under the FLSA is “synonymous” with “basic rate”

under    the    CWHSSA,       id.    at     1333,    and     both    acts       mandate    that

overtime be “not less than one and one-half times” that rate, 29

U.S.C.     § 207(a);         40    U.S.C.    § 328(a)       (current        version     at    40


                                              11
U.S.C. § 3702(a)).           Similarly, the Service Contract Act, like

the     FLSA,       excludes     fringe            benefits        from    the     overtime

calculation.        Masters, 493 F.2d at 1332–33.

                                                   C.

       Applying      these     cases    in    the        context    of    the    Electrical

Workers’ complaint, we discern no conflict in the reach of the

three     statutes     before     us.         Rather,       we     are    satisfied     that

Congress intended the FLSA to apply broadly notwithstanding any

overlap with other labor statutes.

       As the Supreme Court noted in Powell, the FLSA’s scope “was

stated in terms of substantial universality amply broad enough

to include employees of private contractors working on public

projects,”      such    as     the     Electrical          Workers,       and    the   act’s

“specificity in stating exemptions strengthens the implication

that employees not thus exempted, such as employees of private

contractors         under    public     contracts,”             e.g.,     the    Electrical

Workers, “remain within the Act.”                       339 U.S. at 516–17; see also

29 U.S.C. § 213 (listing FLSA exemptions, none of which apply to

the Workers).          Moreover, the FLSA’s plain language envisions

that    it    would     be   applied      along          with    other     federal     labor

legislation.         See 29 U.S.C. § 218(a) (stating that the FLSA’s

minimum      wage    requirement       does        not    excuse    noncompliance       with

“any” federal law that mandates a higher wage); Powell, 339 U.S.

at 517–18.


                                              12
       Similarly,       the    text    and    purpose     of     the    DBA   and    CWHSSA

plainly    envision       concurrent        application     with       one    another    and

with     the   FLSA.           As     we’ve      noted,    the     CWHSSA’s        overtime

requirements      are     expressly        applicable      to     federal      contracts,

including those covered by the DBA.                        See 40 U.S.C. §§ 3701,

3702.     And Congress was aware when it passed the CWHSSA that the

FLSA already applied to “much of the construction industry,”

meaning    that    with       the   CWHSSA’s       concurrent     application,        “many

contractors       may     well      find      themselves       governed       by    several

different      legislative          standards       and    enforcement         procedures

applicable to the same conduct.”                     S. Rep. No. 87-1722, at 18

(1962), as reprinted in 1962 U.S.C.C.A.N. 2121, 2133.

       The same is true of the DBA.                       See 40 U.S.C. § 3142(e)

(explaining the calculation of overtime pay “under any federal

law”     (emphasis       added));          see     also    29     C.F.R.       §§ 5.32(a)

(specifying overtime pay under the DBA when the FLSA and CWHSSA

apply concurrently), 778.6 (stating that DBA-covered workers may

be subject to the FLSA’s overtime provision).                             Moreover, the

Senate     Committee       Report       accompanying        the        legislation      that

created the DBA’s overtime provision, 40 U.S.C. § 3142(e), lists

the FLSA as one of the “existing Federal laws” under which DBA-

governed overtime may be calculated.                  See S. Rep. No. 88-963, at

7 n.1.




                                              13
       Power Design’s arguments otherwise are not persuasive.                               It

points to excerpts from the Department of Labor’s Prevailing

Wage       Resource      Book’s    section      on    “Overtime      Pay    on    DBA/DBRA 5

Contracts”        as     evidence       that   the    FLSA    does    not       apply    when

employees work exclusively on a subcontract governed by both the

DBA and the CWHSSA.                 But the excerpts do not support Power

Design’s position:               In them, the Department of Labor provides

that the FLSA may apply to DBA contracts regardless of whether

they       are   governed    by     the    CWHSSA,     see    U.S.   Dep’t       of     Labor,

Prevailing Wage Resource Book Tab 10, at 4 (2014), which plainly

refutes Power Design’s argument.

       The Resource Book also states that, “[u]nless specifically

exempted” from the FLSA, employees who work on federally funded

(or assisted) and commercial projects in the same workweek must

receive overtime compensation for hours worked over forty.                                Id.

at 5.        It does not follow from that instruction that the FLSA

does    not      apply    when    the     employees    work    solely      on    government

contract (or subcontract) work in a given workweek.                               See also

Brief for the Secretary of Labor as Amicus Curiae in Support of

Plaintiffs-Appellants at 25–26, Amaya v. Power Design, Inc. (No.

15-1691) (stating that the Department of Labor’s “longstanding




       5According to the Resource Book, DBA/DBRA stands for
“Davis-Bacon Act and Davis-Bacon ‘related Acts.’” U.S. Dep’t of
Labor, Prevailing Wage Resource Book Tab 2 (2014).


                                               14
interpretation [of the acts] reflected in the[]” Resource Book

excerpts supports the Workers’ position).

       Several       other        purported          conflicts      arising       from       the

concurrent application of the three statutes evaporate on closer

examination.         First, that the DBA and CWHSSA do not provide an

implied private right of action does not amount to a conflict

with the FLSA.             See Lee v. Flightsafety Servs. Corp., 20 F.3d

428, 431 (11th Cir. 1994) (“It is possible that the FLSA may

allow    a     private      right       of    action       even    though   the      [Service

Contract      Act]    does       not.        Such    a    difference    between        the   two

statutes      is     not    a    conflict.”         (citation      omitted));      see       also

Powell, 339 U.S. at 519 (explaining why employees may prefer to

pursue       administrative         remedies         in    some    instances      and        FLSA

remedies in others).

       Second, that the DBA requires the payment of wages that may

be    higher       than    the    FLSA’s       federal       minimum    wage      is    not    a

conflict.       See 29 U.S.C. § 218(a).                    Power Design has not shown

that    it    is    impossible          to   determine       “in    each    instance,        the

respective wage requirements under each Act, and then apply[]

the    higher      requirement . . .            [in      order    to]   satisfy[]       both.”

Powell, 339 U.S. at 519.                Indeed, in this case, the DBA’s higher

hourly wages, see J.A. A231 (listing prevailing wages under the

NEX     Contract),         satisfy       rather       than    contradict       the      FLSA’s




                                                15
compensation floor, see 29 U.S.C. § 206 (providing the federal

minimum wage).

     Third,      calculating     overtime          under    each       statute     does   not

create a statutory inconsistency or conflict.                             In that regard,

we note that the CWHSSA’s and FLSA’s maximum-hour-workweek and

overtime requirements         are     the      same.       See       29   U.S.C.    § 207(a)

(directing    overtime      be    paid      at     one     and       one-half    times    the

employee’s       “regular    rate”);        40     U.S.C.        § 3702(a)       (directing

overtime be paid at one and one-half times the employee’s “basic

rate of pay”); Masters, 493 F.2d at 1333 (calling “synonymous”

the CWHSSA’s “basic rate” and the FLSA’s “regular rate”).

     Further, the DBA’s directives to use the prevailing cash

rate and to exclude fringe benefits when calculating overtime

dovetail with the FLSA’s overtime computation.                             Although Power

Design    says    otherwise,      the       FLSA    and        DBA    both   require      the

exclusion of fringe benefits when calculating overtime.                              See 29

U.S.C. § 207(e) (precluding fringe benefits from the “regular

rate” determination under the FLSA); 40 U.S.C. §§ 3141(2)(A),

3142(e)    (directing       overtime      “under         any     federal     law”    to   be

computed using the DBA’s “basic hourly rate of pay” and not

fringe    benefits);    see      also     29     C.F.R.        § 5.32(a)     (“The    [DBA]

excludes   amounts     paid      by   a     contractor          or    subcontractor       for

fringe benefits in the computation of overtime under the [FLSA]




                                            16
[and] the [CWHSSA] . . . whenever the overtime provisions of any

of these statutes apply concurrently with the [DBA] . . . .”).

      As   for    using     the       higher       hourly    wage    when     calculating

overtime   under     the    FLSA,       the    DBA     directs      this    course.      It

specifies that “[i]n determining the overtime pay to which a

[worker] is entitled under any federal law, the regular or basic

hourly rate of pay (or other alternative rate on which premium

rate of overtime compensation is computed) . . . is deemed to be

the rate computed under [§] 3141(2)(A),” 40 U.S.C. § 3142(e),

which is “the basic hourly rate of pay”—or the DBA’s “prevailing

wage[]” minus fringe benefits, § 3141(2)(A).

      Thus, when we turn to the FLSA, which requires overtime be

“not less than one and one-half times the regular rate at which

[the worker] is employed,” 29 U.S.C. § 207(a)(1), we supplant

“regular   rate”     with       the   DBA’s        prevailing    basic      hourly    rate.

This statutory interplay creates no conflict between the acts,

and   is   entirely       consistent      with        Supreme    Court       and    circuit

precedent.       See Powell, 339 U.S. at 519 (stating that the higher

hourly rate satisfies both the Walsh-Healy Act and the FLSA);

Masters,   493     F.2d    at    1332    (“‘Regular         rate’    under    the    [FLSA]

‘must reflect all payments which the parties have agreed shall

be received regularly during the work week, exclusive of . . .

actual fact.’” (quoting Walling v. Youngerman-Reynolds Hardwood

Co., 325 U.S. 419, 424 (1945))).


                                              17
      Power     Design       nonetheless          insists,     relying      on     another

Department     of    Labor    regulation,         that   the      Electrical       Workers’

claim for unpaid overtime compensation exposes a conflict.                              The

argument      goes    as     follows:         The      Electrical     Workers       sought

overtime compensation at one-and-a-half times the hourly rate

they were paid rather than the rate set by the Secretary of

Labor.     But, says Power Design, the Department of Labor has

interpreted         the     DBA    to        prohibit        such     lower        overtime

compensation.         See 29 C.F.R. § 5.32(a) (“[I]n no event can the

regular or basic rate upon which premium pay for overtime is

calculated under the [FLSA or CWHSSA] be less than the amount

determined      by    the    Secretary       of     Labor    as     the    basic    hourly

rate . . .      under      [the   DBA].”).          Ergo,    there    is    a    statutory

conflict between the DBA and the FLSA in this case.

      The Electrical Workers’ proposed overtime calculation was

in   response    to       Grochowski    v.    Phoenix       Construction,        the   only

circuit case to directly address the computation of overtime

under the FLSA on a DBA-governed contract, which found that the

calculation must be “limited . . . to one-and-a-half times the

hourly rates actually paid.”                  318 F.3d 80, 87 (2d Cir. 2003)

(emphasis added).           Notably, however, the Workers’ complaint did

not limit overtime to a calculation based on the lower hourly

wage;    rather,      they     asked    for       “a   sum     that   will       properly,

adequately and completely compensate [the Electrical Workers]”


                                             18
and that the court “[a]ward each [Electrical Worker] . . . his

or   her   unpaid      overtime     wages . . .       pursuant         to       [the   FLSA].”

J.A.   A33.       Similarly,       they    argue    on    appeal    that         calculating

overtime on the basis of the hourly rate that they should have

been paid under the DBA “would also produce a favorable and

legally sound result.”         Reply Br. at 15.

       In any event, a plaintiff’s request for less in damages

than   that     to   which    he    is     entitled      does     not       a    legislative

conflict make.         Moreover, we will not defer to a regulation that

creates a statutory conflict between the DBA and the FLSA where

one does not exist.          So even if section 5.32(a) meant what Power

Design urges here, we would ignore it.                       See Chevron, U.S.A.,

Inc. v Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–44 (1984)

(explaining that we defer to an agency’s interpretation of a

statute    only      when   (1) the       statute    is    ambiguous            and    (2) the

agency’s      interpretation       is     reasonable);      see    also          Skidmore     v.

Swift & Co., 323 U.S. 134, 138–140 (1944) (providing that the

“weight    of    a[n    agency’s        interpretation      of     a    statute]         in   a

particular case will depend upon the thoroughness evident in its

consideration, the validity of its reasoning, its consistency

with earlier and later pronouncements, and all those factors

which give it power to persuade”).

       Relatedly, Power Design argues that because the Electrical

Workers seek overtime on the basis of the hourly wages they


                                            19
actually received, which is less than the prevailing wage rates

prescribed by the Department of Labor, the district court cannot

determine the proper overtime owed to the Workers because of the

statutory mandate to exclude the fringe rate in the calculation.

In    support,       they     again    cite    to        the    Department     of   Labor’s

regulation.          See § 5.32(c)(1) (“[I]n some cases a question of

fact may be presented in ascertaining whether or not a cash

payment made to laborers or mechanics is actually in lieu of a

fringe benefit or is simply part of their straight time cash

wage.         In    the     latter    situation,          the    cash    payment    is   not

excludable in computing overtime compensation.”).

       The scenario imagined in section 5.32(c) is of no moment.

That    regulation        explains     that        the    rate    used    in   calculating

overtime will be either the prevailing cash rate or a higher

amount if the employee has been paid at a cash rate higher than

the     one        prescribed     by    the        Secretary        of    Labor.         See

§ 5.32(c)(1)-(3); see also id. at § 5.32(a) (“The contractor’s

contributions or costs for fringe benefits may be excluded in

computing such [rate on which overtime is calculated] so long as

the exclusions do not reduce th[at rate] below the basic hourly

rate     contained          in   the    [prevailing]             wage     determination.”

(emphasis added)).

       Here, the Electrical Workers allege that they were paid

less than the prevailing hourly rate.                          Additionally, the record


                                              20
contains:    (1) the   prevailing      rates   (set   by   the     Secretary   of

Labor)    applicable      to     the    NEX    Contract,         J.A.   A230–35;

(2) certified   payroll    records     submitted      to   the    Department   of

Labor’s Wage and Hour Division, which indicate that some of the

Workers 6 were classified as Electricians entitled to the $37.60

cash hourly rate and $12.28 fringe rate set by the Secretary

under the NEX Contract, J.A. A237–337; and (3) affidavits by

additional   Workers   stating      that    they,   too,   were    Electricians

paid below the prevailing NEX Contract rate, J.A. A380–85, A412-

15, A447–49.    In our view, this is an issue of proof rather than

a legislative conflict, which the district court can address on

remand.

     One final point.          At oral argument, Power Design contended

for the first time that there was a question of fact regarding

the Electrical Workers’ FLSA overtime calculation because there

are different classifications for electricians and laborers, all

of which have different cash and fringe rates and “several of

which could potentially be applicable here.”                Oral Argument at

22:11–22:54.    We generally do not consider arguments raised for

the first time on appeal (much less when sprung on us at oral

argument), In re Under Seal, 749 F.3d 276, 285 (4th Cir. 2014),


     6 The payroll records in the Joint Appendix do not account
for all named appellants.     Those whose payroll records were
included, however, are classified exclusively as Electricians.



                                       21
and decline to do so here.       In any event, this, too, is a matter

of proof best left for the district court.



                                   III.

      In   light   of   the   statutory    texts,   which   admit   of   no

conflict, and the similarities between Powell, Masters, and this

case, we hold that the statutes at issue apply concurrently to

the   Electrical   Workers’   employment    arrangement.     Accordingly,

the district court erred in granting summary judgment to Power

Design.



                                                    VACATED AND REMANDED




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