Roberto RAMOS, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez, Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr., Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, individually and on behalf of all other persons similarly situated, Plaintiffs-Appellants,
SIMPLEXGRINNELL LP, John Doe Bonding Companies, # 1-3, Defendants-Appellees.[*]
Argued: Sept. 4, 2013.
Raymond C. Fay (Taryn Wilgus Null, on the brief), Mehri & Skalet, PLLC, Washington, D.C., Bruce E. Menken and Jason Rozger, Beranbaum Menken LLP, New York, NY, for Plaintiffs-Appellants.
Edward Cerasia, II (Dominick C. Capozzola, on the brief), Ogletree, Deakins, Nash, Smoak & Stewart, P.C., New York, NY, for Defendants-Appellees.
Before: CALABRESI, LIVINGSTON, and CHIN, Circuit Judges.
CALABRESI, Circuit Judge:
This case raises two questions of New York State law that are unsettled and of importance to the relationship between the State's administrative agencies and its courts, as well as to the functioning of New York's labor law. It asks, first, whether a court should give deference not only to an agency's substantive interpretation of a statute arising from an unrelated proceeding but also to its decision to enforce that interpretation only prospectively. And it asks, second, whether contracts committing parties to pay prevailing wages pursuant to section 220 of the New York Labor Law (" NYLL" ) need to specify— when the scope of the statute's coverage is unclear to the parties— what particular work the prevailing wages will be paid for. At oral argument, the Appellees stated that certification would be useful and appropriate. We agree, and we certify two questions to the New York Court of Appeals. See N.Y.C.R.R. § 500.27(a).
This case was brought by workers who installed, maintained, repaired, tested, and inspected fire alarm and suppression systems in public and private buildings in
New York for SimplexGrinnell LP (" Simplex" ). They claimed that, since at least February of 2001, Simplex did not pay them " prevailing wages" for their labor on " public works" in violation of NYLL section 220.
Though the case was initially brought in New York State court in 2007, it was removed to the United States District Court for the Eastern District of New York, where the parties consented to the jurisdiction of Magistrate Judge Steven Gold. Among other things, the plaintiffs brought third-party breach of contract claims based on Simplex's failure to pay prevailing wages.
Because the plaintiffs had chosen to bring a third-party breach of contract suit in court, rather than in an Article 78 proceeding before the Department of Labor (" DOL" ), see N.Y. C.P.L.R. § 7803, that agency had no formal role in the proceeding. However, while the litigation was ongoing, Simplex turned to the DOL and, on its own, asked for clarification. The plaintiffs were not privy to these communications between Simplex and the DOL.
As part of these communications, Simplex provided the DOL with matrices reflecting its views of what work was " covered" by the statute and therefore entitled to the payment of prevailing wages, and what work was not. In the matrices provided by Simplex, testing and inspection work was not listed as covered. The DOL posted the matrices on its website.
Subsequently, however, then-Commissioner of the DOL, Patricia Smith, ordered the matrices removed, and decided to issue an opinion letter on the matter. In that letter, the DOL concluded that testing and inspection work was " covered" work under section 220 of the NYLL and hence entitled to payment of the prevailing wage. Joint App'x at 330-33. The DOL reached this conclusion because, inter alia, testing and inspection work was a form of " maintenance work" a category that is covered under the statute. Id. at 330-31. The opinion letter noted that both New York State and Simplex's own documents had treated testing and inspection work as within the category of " maintenance" work. Id. at 331-32.
But the DOL also stated that there had been " much confusion" as to whether it had earlier interpreted testing and inspection work as being covered and, for this reason, decided to enforce its decision prospectively only. Id. at 332. The opinion letter, issued on December 31, 2009, went into effect on the following day: January 1, 2010. Id.
After the DOL issued its opinion letter to Simplex, the parties completed discovery in the Eastern District and filed cross-motions for summary judgment. Simplex relied on the DOL's opinion letter in its motion.
The district court granted Simplex's motion to dismiss the plaintiff's claims relating to testing and inspection work. Ramos v. SimplexGrinnell LP,796 F.Supp.2d 346, 367-69 (E.D.N.Y.2011). The court focused principally on the DOL's opinion letter, and ruled that deference was due both to the conclusion reached in the letter— that testing and inspection work was to be paid ...