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    ALLIED CONCRETE REVERSED: Ninth Circuit Finds Statute Extending Prevailing Wage Laws to Ready-Mix Concrete Drivers Is Constitutional

    By Alison Gibbs

    In Allied Concrete & Supply Co. v. Baker, the Ninth Circuit Court of Appeals recently reversed part of a district court’s judgment finding Labor Code §1720.9, which extended prevailing wage laws to ready-mix concrete drivers, violated the Equal Protection Clause of the Fourteenth Amendment. Ready-mix concrete suppliers argued that the law arbitrarily singled out ready-mix concrete drivers for inclusion under the prevailing wage laws while leaving out all other construction materials drivers.

    The district court agreed with the ready-mix concrete suppliers and ruled that Labor Code §1720.9 did not pass scrutiny under the rational basis test as there were no legally relevant differences between ready-mix concrete drivers and other delivery drivers. Therefore, according to the district court, this provision was “arbitrary” and not rationally related to any of the State’s interests.

    The Ninth Circuit reversed the district court’s summary judgment ruling in favor of the ready-mix concrete suppliers on the equal protection claim, and ordered the lower court to enter judgment on behalf of the State. The Ninth Circuit concluded that that the district court “wrongly disregarded as irrelevant certain differences between ready-mix drivers and other drivers that the legislature could have relied on in extending the prevailing wage law.” The Ninth Circuit further clarified that Labor Code §1720.9 is presumed constitutional and the burden is on the ready-mix concrete suppliers to negate every conceivable basis which might support it. The Ninth Circuit stressed that “the state action need not actually further a legitimate interest; it is enough that the governing body could have rationally decided that the action would further that interest.”

    In support of its ruling, the Ninth Circuit determined that the State could have rationally concluded that extending the prevailing wage laws to ready-mix concrete drivers ahead of other drivers would further the State’s goals of protecting employees and benefitting the public because these drivers: “(1) are more integrated into the construction process than other materials drivers and should be paid accordingly; (2) are more skilled than other drivers and provide a material that is more important to public works projects than other materials such that paying the prevailing wage will attract superior drivers and improve public works; and (3) are more likely to be unionized and, therefore, vulnerable to underbidding.” Ultimately, the Ninth Circuit found that the ready-mix concrete suppliers failed to refute the conceivable justifications for the law.

    Although the analysis differs from case to case, this ruling is a reminder of the difficulty employers face in challenging the constitutionality of prevailing wage laws. This is particularly true when it comes to claiming a law unfairly targets a singular class of workers. Given this ruling, many expect the legislature to continue its expansion of the prevailing wage laws.

    Alison Gibbs is an associate attorney at Hunt Ortmann who specializes in labor and employment law.  For more information about the subject matter of this bulletin, please visit our website here or contact Alison Gibbs at