Davis Bacon Act Does Not Preempt Filing False Instrument Charge

The Davis-Bacon Act (40 USC § 3141 et seq.) is a Federal law which established the requirement for paying prevailing wages on public works projects. All federal government construction contracts, and most contracts for federally assisted construction must include provisions for paying workers on-site no less than the locally prevailing wages and benefits paid on similar projects.

On Tuesday, the Second Department held that the Davis-Bacon Act does not preempt a State prosecution of offering a false instrument for filing in People v Caridi, 2008 NY Slip Op 00708. The defendant was the president of a corporation involved in a construction project funded by the United States Department of Housing and Urban Development (HUD). As a condition for the receipt of funds, the defendant filed payroll certificates with HUD, in which he falsely represented that workers on the project were paid at the prevailing wage rate. He was charged with offering a false instrument for filing in the second degree (Penal Law § 175.30). The defendant pleaded guilty, but on appeal argued that his prosecution was preempted by the Davis-Bacon Act and federal regulations providing administrative remedies for noncompliance with the Davis-Bacon Act.

The Second Department disagreed stating that the State prosecution did not constitute a regulation of wages determined by the federal government, but was instead a valid exercise of the State’s police power which had only a peripheral relationship to the wages required under the Davis-Bacon Act. In addition, the Court found that there was no indication that Congress intended to preempt the State’s police power. Finally, the Court found there was no conflict between the State and Federal law. Thus, the Court affirmed the defendant’s conviction.

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