Justia Government Contracts Opinion SummariesArticles Posted in Labor & Employment Law
GRFCO, Inc. v. Super. Ct.
The California Department of Industrial Relations, Division of Labor Standards Enforcement (Division) debarred the following from acting as public works contractors: (1) GRFCO, Inc. (GRFCO), a contractor; (2) George Rogers Frost, the principal in GRFCO; (3) Garcia Juarez Construction (GJC), a contractor and apparent alter ego of GRFCO; and (4) James Craig Jackson, the principal in GJC and an employee of GRFCO. The Division found that, in six instances, the contractors violated apprenticeship requirements, and in two instances, Frost and Jackson had made false certifications under penalty of perjury. The trial court denied the contractors’ petition for administrative mandate. On appeal, the contractors contended: (1) there was insufficient evidence that the apprenticeship violations were knowing; (2) there was insufficient evidence to support the false certification findings; (3) the contractors were debarred because they refused to join a union, in violation of the First Amendment; (5) the Division, hearing officer, and/or the investigator were biased; and (5) the hearing officer erred by denying the contractors' request to reopen, which was based on new evidence of bias. Finding no error, the Court of Appeal affirmed. View "GRFCO, Inc. v. Super. Ct." on Justia Law
Jacobs Project Management Co v. United States Department of the Interior
In 2014, National Park Service (NPS) entered a contract with Perini to perform work on Ellis Island and hired Jacobs to provide contract management services on that contract. Jacobs assigned Weber to the project. Weber observed what he believed to be discrepancies between Perini’s work and its billing practices and disclosed those discrepancies to the Office of the Inspector General (OIG), which concluded that there was no misconduct. In 2015, the NPS informed Jacobs that it would not extend its contract, purportedly because there was not enough work. Weber told OIG that he believed NPS’s decision was due to his reports and that he feared Jacobs would not retain him. Jacobs ultimately discharged Weber, who filed an OIG complaint in December 2015. In April 2016, Weber agreed to, an extension of OIG’s 180-day statutory deadline to complete its investigation. In February 2017, beyond the 360-day extended deadline, OIG completed and transmitted its report, with redacted copies to Weber and Jacobs. More than three years later, Jacobs asserted that it had never received the report.Jacobs subsequently declined to respond, asserting that the report was issued after the statutory deadline, 41 U.S.C. 4712, and that OIG lacked jurisdiction. The final determination and order were issued in December 2021, well beyond the 30-day deadline, and concluded that Jacobs had engaged in a prohibited reprisal against Weber. The Third Circuit denied an appeal, holding that the deadlines are not jurisdictional. View "Jacobs Project Management Co v. United States Department of the Interior" on Justia Law
SANA KAPPOUTA V. VALIANT INTEGRATED SERVICES, ET AL
While at a bar at the U.S. Embassy compound in Baghdad, Iraq, Plaintiff was shoved by an intoxicated co-worker. She was reluctant to report the incident, but she eventually acquiesced to requests of the State Department and her employer. Because of her report, Plaintiff’s employer attempted to transfer her to a different position. After initially refusing the transfer, she was fired. Plaintiff filed suit under the Defense Contractor Whistleblower Protection Act (DCWPA). The district court dismissed her complaint without prejudice, allowing leave to amend. The Ninth Circuit affirmed the district court’s dismissal of Plaintiff’s action under DCWPA against Valiant Integrated Services, LLC, and The Electronic On-Ramp, Inc. The panel held that to survive a motion to dismiss under the DCWPA, a plaintiff must plausibly allege that: (1) she made a disclosure that she reasonably believed was evidence of a violation related to a Department of Defense contract; and (2) her employer discharged, demoted, or otherwise discriminated against her because of that disclosure. The panel held that Plaintiff did not plausibly allege a reasonable belief that her complaint about the shoving incident encompassed one of the acts described in Section 4701(a)(1)(A)-(C). The panel held that, in the context of a defense contract, a violation of law is related to the contract if it is related to the purpose of the contract or affects the services provided by the defense contractor to the Department of Defense. The panel concluded that, under this standard, Plaintiff’s complaint failed to allege a sufficient nexus between the shove and the Department of Defense-Valiant contract. View "SANA KAPPOUTA V. VALIANT INTEGRATED SERVICES, ET AL" on Justia Law
Ascolese v. Shoemaker Construction Co
Ascolese, a compliance officer, brought a False Claims Act (FCA) retaliation claim against his former employer, MBP, in connection with a qui tam action involving a federally-funded public housing construction project for the Philadelphia Housing Authority (PHA). In 2009–2010, Congress amended the FCA, 31 U.S.C. 3729(a)(1)(A), to expand the scope of protected conduct shielded from retaliation and the type of notice an employer must have of the protected conduct. The new standard is whether Ascolese showed he engaged in protected conduct in furtherance of an FCA action or other efforts to stop or more violations of the FCA and that he was discriminated against because of his protected conduct. The court believed that the pre-amendment standard was required by the Third Circuit, and concluded that Ascolese failed to show MBP was on notice that he was attempting to stop MBP from violating the FCA and not merely doing his job.The Third Circuit vacated and remanded. The right question is whether Ascolese pled facts that plausibly showed MBP was on notice he tried to stop MBP’s alleged FCA violation. Ascolese sufficiently pled that he engaged in protected conduct when he went outside of his chain of command to report his concerns of fraudulent work to the PHA. View "Ascolese v. Shoemaker Construction Co" on Justia Law
Associated Gen. Contractors of Wash. v. State
This case concerned whether Washington Substitute Senate Bill (SSB) 5493, constituted an unconstitutional delegation of legislative authority. SSB 5493 amended RCW 39.12.015 to modify how the Department of Labor and Industries (L&I) industrial statistician calculated prevailing wage rates for public works projects. Associated General Contractors of Washington, Associated Builders and Contractors of Western Washington Inc., Inland Pacific Chapter of Associate Builders and Contractors Inc., and Inland Northwest AGC Inc. (collectively AGC), filed suit against the State of Washington and various government officials in their official capacities (collectively State), for declaratory and injunctive relief, arguing that requiring the industrial statistician to use the wages from CBAs constituted an unconstitutional delegation of legislative authority. Both parties moved for summary judgment. The superior court granted the State’s cross motion for summary judgment, holding that SSB 5493 was constitutional, and dismissed the case. The Court of Appeals reversed and held that SSB 5493 was an unconstitutional delegation of legislative authority, holding that the amendments have neither the standards nor adequate procedural safeguards as required by the two-part test set forth in Barry & Barry, Inc. v. Department of Motor Vehicles, 81 Wn.2d 155, 163-64, 500 P.2d 540 (1972). The Washington Supreme Court reversed the Court of Appeals: SSB 5493 was not an unconstitutional delegation of legislative authority because it provided standards and procedural safeguards under the test in Barry & Barry. "The legislature made a policy decision to adopt the highest CBA wage rate and has directed the L&I industrial statistician to identify the highest CBA wage rate and adopt it as the prevailing wage. In addition there are procedural safeguards in related statutes and inherent in the collective bargaining process that protect against arbitrary administrative action or abuse of discretionary power." The case was remanded back to the Court of Appeals for consideration of the remaining issue not addressed because of its disposition in this case. View "Associated Gen. Contractors of Wash. v. State" on Justia Law
Dorsa v. Miraca Life Sciences, Inc.
Dorsa joined Miraca, which offers pathology services for healthcare providers. His employment agreement contained a binding arbitration clause. Dorsa claims that, during his employment, he observed Miraca giving monetary donations and free services to healthcare providers to induce pathology referrals, in violation of the AntiKickback Statute, the Stark Law, and the False Claims Act (FCA), 31 U.S.C. 3729(a)(1). Dorsa lodged internal complaints. Dorsa claims that Miraca fabricated a sexual harassment complaint against him. Dorsa filed a qui tam action against Miraca in September 2013. Days later, Miraca fired Dorsa, citing workplace harassment. Dorsa added an FCA retaliation claim.The government investigated the FCA claims and, in 2018, intervened for purposes of settlement, under which Miraca agreed to pay $63.5 million to resolve FCA claims. Miraca moved to dismiss the remaining retaliation claim, citing the arbitration clause, Dorsa argued that the clause did not apply because his claim was independent from the employment agreement. Miraca then asserted that the court did not have the authority to decide a threshold question of arbitrability. The district court ruled in favor of Dorsa. Miraca later moved to stay the proceedings and compel arbitration. The Sixth Circuit affirmed the denial of that motion. Miraca forfeited and waived its arguments about the district court’s authority to decide threshold questions of arbitrability and its ruling on the merits. Filing the motion to dismiss was inconsistent with Miraca’s later attempts to rely on the arbitration agreement. View "Dorsa v. Miraca Life Sciences, Inc." on Justia Law
Harris v. County of Orange
In 1993, the County and the Orange County Employee Retirement System (OCERS) entered into a Memorandum of Understanding (MOU), allowing the County to access surplus investment earnings controlled by OCERS and depositing a portion of the surplus into an account to pay for county retirees' health insurance. The county adopted the Retiree Medical Plan, funded by those investment earnings and mandatory employee deductions. The Plan explicitly provided that it did not create any vested rights. The labor unions then entered into MOUs, requiring the county to administer the Plan and that retirees receive a Medical Insurance Grant. In 1993-2007, retired employees received a monthly grant benefit to defray the cost of health insurance. In 2004, the county negotiated with its unions to restructure the underfunded program, reducing benefits for retirees.Plaintiffs filed suit. The Ninth Circuit affirmed summary judgment in favor of the county. The 1993 Plan explicitly provided that it did not create any vested right to benefits. The Plan was adopted by resolution and became law with respect to Grant Benefits, part of the MOUs. The MOUs expired on their own terms by a specific date. Absent express language providing that the Grant Benefits vested, the right to the benefits expired when the MOUs expired. The Plan was not unilaterally imposed on the unions and their employees without collective bargaining; the unions executed MOUs adopting the Plan. The court rejected an assertion that the Grant Benefit was deferred compensation and vested upon retirement, similar to pension benefits. View "Harris v. County of Orange" on Justia Law
Smith v. CSRA, Inc.
In 2013, Smith began working with DEA as a subcontractor in the geospatial intelligence program. Smith has a disability that adversely affects her mobility; she was granted accommodations. In 2015, Smith was authorized to work remotely 50 percent of the time. Through 2017, Smith received positive performance reviews. Smith’s position did not change in 2016 when CRSA became the prime contractor. In 2017, Quinn, DEA’s Acting Deputy Assistant Administrator became dissatisfied when Smith was unable to answer questions about the Program. Quinn directed that Smith begin reporting to DEA headquarters. Smith lobbied to maintain her remote work arrangement. DEA officials did not respond to Smith’s request but, because of parking and transportation problems, Smith intermittently continued to work remotely despite notification that she was not authorized to do so. DEA concluded it could not grant the request; the CSRA contract did not expressly provide for remote work and DEA’s building lease limited the issuance of parking passes to employees. DEA alleges that it developed concerns about Smith’s technical skills and performance.DEA officials retrieved the equipment that supported Smith’s remote access and revoked Smith’s security clearance. CSRA terminated the Consultant Agreement. Smith sued, alleging disability discrimination and retaliation under the Rehabilitation Act, 29 U.S.C. 791, against DEA, and violations of the Rehabilitation Act and the ADA, 42 U.S.C. 12101, against CSRA. The district court rejected the claims on summary judgment.The Fourth Circuit affirmed as to Smith’s disability discrimination claim but vacated as to her retaliation claim. Smith was an independent contractor and not a CSRA employee. DEA was not required to offer Smith a remote work accommodation and its failure to do so was not a refusal to accommodate but Smith established a prima facie case of retaliation. View "Smith v. CSRA, Inc." on Justia Law
International Brotherhood of Electrical Workers v. Farfield Co
In 2002, Farfield contracted with SEPTA for improvements on Philadelphia-area railroad tracks. The federal government partially funded the project. Work concluded in 2007. As required by federal regulation, Department of Labor (DOL) prevailing wage determinations were incorporated into the contract. Farfield was required to submit to SEPTA for transmission to the Federal Transit Administration a copy of Farfield’s certified payroll, setting out all the information required under the Davis-Bacon Act, 40 U.S.C. 3142(a), with a “Statement of Compliance” averring that the information in the payroll was correct and complete and that each worker was paid not less than the applicable wage rates and benefits for the classification of work performed, as specified in the applicable wage determination. Falsification of a payroll certification could subject Farfield to criminal penalties or civil liability under the False Claims Act (FCA).A union business manager suspected that Farfield had won government contracts with low bids by intending to pay less-skilled workers to perform certain work that would otherwise have been the bailiwick of higher-skilled, higher-paid workers. Ultimately, the union filed a qui tam FCA complaint. The United States declined to intervene. The court entered a $1,055,320.62 judgment against Farfield: $738,724.43 to the government and $316,596.19 to the union, plus $1,229,927.55 in attorney fees and $203,226.45 in costs. The Third Circuit affirmed. In view of the totality of the circumstances, Farfield’s Davis-Bacon violations were not minor or insubstantial. View "International Brotherhood of Electrical Workers v. Farfield Co" on Justia Law
Valerio v. Moore Landscapes, LLC
The plaintiffs, 12 tree planters who allegedly worked for Moore Landscapes under contracts that Moore executed with the Chicago Park District, sought unpaid wages, statutory damages, prejudgment interest on back-pay, and reasonable attorney fees and costs under the Illinois Prevailing Wage Act, 820 ILCS 130/11. They alleged that Moore improperly paid them an hourly rate of $18 instead of the prevailing hourly wage rate of $41.20.The appellate court reversed the circuit court’s dismissal order. The Illinois Supreme Court reinstated the dismissal. The Park District and Moore did not stipulate rates for work done under the contracts. The Act provides that, when the public body does not include a sufficient stipulation in a contract, the potential liabilities of the contractor are narrower than those provided under section 11, when a contractor disregards a clear contractual stipulation to pay prevailing wage rates, and “shall be limited to the difference between the actual amount paid and the prevailing rate of wages required to be paid for the project. View "Valerio v. Moore Landscapes, LLC" on Justia Law