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Indiana justices asked to answer question under Common Construction Wage Act

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U.S. Judge Sarah Evans Barker has asked the Indiana Supreme Court to answer a certified question that arose in a pay dispute between a Fort Wayne electrician and Indianapolis-based Gaylor Inc.

Joshua Lewis claims that Gaylor failed to pay him the appropriate wage rate set for work he performed on the Purdue University Grounds Maintenance Facility, the Logansport Library, and other jobs. His suit alleges Gaylor intentionally exerted unauthorized control over his the wages and benefits he earned under the Common Construction Wage Act and the Davis-Bacon Act.

On Sept. 21, Barker adopted the magistrate judge’s report and recommendation on Lewis’ federal statutory claim, but stayed a ruling on the state claim until the Supreme Court gave guidance as to whether Lewis has a private cause of action under the CCWA. The magistrate judge recommended dismissing the state claim.
 
Barker sent the following question to the justices on Sept. 21:

“Given the holdings by the United States Supreme Court in Cannon v. University of Chicago, 441 U.S. 677 (1979) and Universities Research Association, Inc. v. Coutu, 450 U.S. 754 (1981), and the subsequent decisions interpreting those decisions, all of which superseded the Seventh Circuit’s decision in McDaniel v. University of Chicago, 548 F.2d 689 (7th Cir. 1977); as well as the Indiana Court of Appeals decision in Stampco Construction Co., Inc. v. Guffey, 572 N.E.2d 510 (Ind. Ct. App. 1991), which in a divided opinion relied on McDaniel; and given the absence of any ruling by the Indiana Supreme Court on issues raised therein: Does Indiana’s Common Construction Wage Act, IND. CODE § 5-16-7 et seq., permit or in some other fashion give rise to a private cause of action?”

The case is Joshua S. Lewis v. Gaylor Inc., 1:11-CV-01421, the Indianapolis Division of the Southern District of Indiana.

 

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  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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