Please ensure Javascript is enabled for purposes of website accessibility

Labor — non-delegation doctrine — prevailing wages

By: WISCONSIN LAW JOURNAL STAFF//February 2, 2012//

Labor — non-delegation doctrine — prevailing wages

By: WISCONSIN LAW JOURNAL STAFF//February 2, 2012//

Listen to this article

United States Court of Appeals For the Seventh Circuit

Civil

Labor — non-delegation doctrine — prevailing wages

A state law that delegates setting the prevailing wage for contracts does not violate the nondelegation doctrine.

“A state can prescribe a minimum wage, which is bound to be based on private wage determinations, and it can require employers that have contracts with the state to pay their employees a prevailing wage, Atkin v. Kansas, 191 U.S. 207, 222-23 (1903); Frank Bros., Inc. v. Wisconsin Dep’t of Transportation, 409 F.3d 880, 889-90 and n. 9 (7th Cir. 2005), which is a minimum wage determined by reference to what private employers are paying. Parker v. Brown, 317 U.S. 341 (1943), upheld against a variety of constitutional challenges a state program for establishing minimum prices for raisins that was administered by raisin producers. Minimum product prices are analogous to minimum wages, which are minimum prices for labor services. But in this case a state agency merely has determined that plantsmen are comparable to other laborers and so should receive the same minimum wage. That is a routine type of determination made en route to fixing a prevailing wage, and the plaintiffs have not shown that the decision in Illinois Landscape Contractors Ass’n v. Department of Labor that upheld the determination was unreasonable. They would not be permitted even to try to show it, in this case at any rate, because as members of the contractors association, sharing the interest of the other members in defeating the determination and represented by the same lawyer who represented the association in the landscape contractors case, they are bound by that determination. See Stichting Ter Behartiging Van de Belangen Van Oudaandeelhouders In Het Kapitaal Van Saybolt International B.V. v. Schreiber, 327 F.3d 173, 184-86 (2d Cir. 2003); Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 322 F.3d 1064, 1082 (9th Cir. 2003); Expert Electric, Inc. v. Levine, 554 F.2d 1227, 1233-34 (2d Cir. 1977); 18A Charles Alan Wright et al., Federal Practice and Procedure § 4456, pp. 502-05 (2d ed. 2002).”

Affirmed.

11-1920 Beary Landscaping, Inc., v. Costigan

Appeal from the United States District Court for the Northern District of Illinois, Zagel, J., Posner, J.

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests