Prevailing Wage Update for West Virginia Contractors
In Grim v. Eastern Electric, LLC, No. 13-1133 (W.Va. Nov. 3, 2014), the West Virginia Supreme Court of Appeals rendered an opinion imposing a high burden upon contractors to determine whether West Virginia’s Prevailing Wage Act (“PWA”) applies to public works projects. In Grim, a contractor responding to a Request for Quotation from the West Virginia Department of Administration asked two senior officials within that Administration whether prevailing wages had to be paid. Both answered in the negative. In addition, the contract documents did not include the standard prevailing wage language typically found. Based on these facts, the contractor performed without paying prevailing wages. Some of the contractors’ employees filed suit and ultimately the Supreme Court of Appeals found that prevailing wage were due, and while it was the statutory duty of the state agency to determine whether prevailing wages had to be paid, the contractor should have determined whether the state agency complied with that duty, i.e., just relying upon direction by a state official with apparent authority was not enough for the contractor to prevail under the statutory affirmative defense of “honest mistake or error.” Based on this decision, it appears that to ensure protection, a contractor must contact the Division of Labor to ascertain for itself whether prevailing wages must be paid.