By Brandon Pensick, ECA President Email: [email protected]

The 9th Circuit Court of Appeals put the kibosh on a lower court ruling that would have stopped enforcement of the new prevailing wage requirements for drivers working for ready mix concrete suppliers, throwing the ten-month legal battle over AB 219 into limbo, again.

This is an important case for construction. The additional wage costs for drivers are being paid by the ready-mix companies and there are many different ways they’re recovering the cost from contractors, many who didn’t have the new law factored in their bids on current projects.

U.S. District Court Judge R. Gary Klausner approved a “final judgment and permanent injunction order” on March 14th, which stopped enforcement of AB 219.

On Wednesday, April 19th, the Ninth Circuit Court of Appeals granted the Department of Industrial Relations’ (DIR) request for a stay of the U.S. District Court Order blocking the Labor Commissioner’s enforcement of AB 219.

This shuffle represents the sixth time since last July that the status of AB 219 has changed.

DIR immediately announced it “will enforce all prevailing wage requirements pursuant to AB 219.” This is consistent with the agency’s position throughout the court battle. DIR warned suppliers and contractors that they intended to retroactively enforce the provisions of AB 219 going back to July 1, 2016, the date it first took effect. DIR is also taking the novel position that public agencies like Caltrans can go ahead with enforcement of AB 219 on projects because they aren’t defendants in the suit.

Judge Klausner agreed with the plaintiffs’ position that the law violated the U.S. Constitution, under “Equal Protection Clause” of the 14th Amendment, which was one of two causes the eight ready-mix companies used in their lawsuit last June 30th. The judge dismissed the second argument, saying AB 219 was not a violation of the Federal Aviation Administration Authorization Act of 1994 (FAAAA), prohibiting states from enacting or enforcing policies “related to a price, route, or service of any motor carrier.”

What’s Next?

It isn’t over. Now the case will go to trial before a new threejudge panel at the 9th Circuit on the constitutional issue and the FAAAAquestion. Attorneys for the ready-mix team are filing motions to speed up the process of submitting briefs and hearing oral arguments that was scheduled to last through most of next year. If granted, the expedited process could get to a decision by the fall of this year. Where it goes from there nobody knows, but we’ll keep you posted.