North Marion School District 15 Ex Rel. Trejo v. Acstar Insurance

169 P.3d 1224, 343 Or. 305, 2007 Ore. LEXIS 816, 2007 WL 2949153

• Court: Oregon Supreme Court
• Decided: October 11, 2007
• Docket: CC 0006-05846; CA A119438; SC S53662
• Status: Published

Opinions

LINDER, J.

Plaintiffs, former workers on a public works project, filed this action to recover statutory penalty wages and liquidated damages from a surety who issued construction bonds to plaintiffs’ employer, a subcontractor on the project. The dispute arose when plaintiffs’ employer became financially unable to meet its payroll and terminated plaintiffs’ employment without paying plaintiffs’ final wages on the date that those wages were due. Within one month, the employer’s surety, Acstar Insurance Co. (Acstar), paid plaintiffs the amounts that the employer failed to pay them. In their actions, however, plaintiffs alleged that, because their final wages were paid late, they also were entitled to penalty wages and liquidated damages from the surety. On the parties’ cross motions for summary judgment, the trial court concluded that the surety was not statutorily liable in an action on the bond for either penalty wages or liquidated damages based on the late payment of wages. The trial court therefore granted defendant Acstar’s motion, denied plaintiffs’ motion, and entered judgment accordingly.¹ The Court of Appeals affirmed. North Marion Sch. Dist. #15 v. Acstar Ins. Co., 205 Or App 484, 136 P3d 42 (2006).

Plaintiffs petitioned for this court’s review and, in support of their petition, the Commissioner of the Bureau of Labor and Industries (BOLI) filed an amicus brief urging that the Court of Appeals resolved the liquidated damages issue incorrectly. We granted review to address: (1) whether a surety is liable for penalty wages under ORS 652.150 in an action on a construction bond pursuant to ORS 279.526; and (2) whether the late payment of wages violates the prevailing wage rate statute, ORS 279.350(1), thereby entitling plaintiffs to liquidated damages from the surety under ÓRS 279.356(1).² As we explain below, we affirm the decision of the Court of Appeals and the judgment of the trial court as to both issues.

I. FACTS AND PROCEDURAL HISTORY

We take the facts from the Court of Appeals opinion and the record. North Marion School District #15 hired defendant OC America Construction, Inc. (OC), to be the general contractor for the North Marion School District Facility Improvements, a public improvement project. OC hired defendant Vander Kley as a subcontractor on the project; Vander Kley, in turn, employed plaintiffs. As required by ORS 279.029,³ both OC and Vander Kley obtained construction bonds to cover their contractual obligations on the project. Vander Kley obtained his bonds from defendant Acstar. After work on the project commenced, Vander Kley developed financial difficulties and began to issue late paychecks to his employees. In March 2000, OC demanded in writing that Vander Kley pay his employees timely. On April 27, 2000, Vander Kley became financially insolvent and could not pay his employees at all. Vander Kley advised OC of his financial distress and terminated his employees. Vander Kley was unable to pay them their final wages, which were due the next day. OC informed Acstar of Vander Bley’s situation so that Acstar would pay Vander Kley’s final payroll from the bond. Acstar attempted to determine the correct amount owed to each employee by obtaining the certified payroll statements that Vander Kley had filed with North Marion School District.⁴ Acstar did not immediately receive those statements, however.

Meanwhile, on May 8,2000, a little over a week after their employment terminated, plaintiffs — 47 of Vander Kley’s former employees — sent notices to Acstar, pursuant to ORS 279.528, of their claims for nonpayment of wages. The notices identified the employees by name, but did not describe the work performed or the amount of wages sought. Acstar’s counsel immediately asked plaintiffs’ counsel for that information, but plaintiffs’ counsel did not provide it, asserting instead that Acstar, as the surety, was responsible for determining the amount of wages due to each employee. On May 19, 2000, Acstar succeeded in obtaining copies of Vander Kley’s certified payroll statements. About a week later, on May 25, 2000, Acstar delivered paychecks to each plaintiff. Plaintiffs do not dispute that Acstar paid them all wages that Vander Kley owed as of their last payday, nor do they dispute that those wages were calculated at the correct wage rates.

After plaintiffs received their paychecks, they filed this action on the contractor’s bond pursuant to ORS 279.536. They alleged that they were entitled to penalty wages under ORS 652.150 for late payment of their final wages. They also sought liquidated damages under ORS 279.356(1), claiming that the late payment of their wages violated the prevailing wage rate statute.⁵ At trial, plaintiffs and defendant Acstar each filed motions for summary judgment. As pertinent to the issues on review, the trial court concluded that (1) Acstar, as a surety for Vander Kley, was not liable for penalty wages under ORS 652.150 for Vander Kley’s late payment of wages; and (2) plaintiffs failed to comply with the notice provisions of ORS 279.528 and therefore could not pursue an action on Acstar’s bond for liquidated damages under ORS 279.356(1). Accordingly, the trial court granted Acstar’s motion for summary judgment and denied plaintiffs’ motion. Plaintiffs subsequently appealed.

The Court of Appeals affirmed the trial court’s judgment. On the penalty wages issue, the Court of Appeals agreed with the trial court that Acstar, as a surety on a public works project, was not liable for penalty wages under ORS 652.150. On the liquidated damages issue, the Court of Appeals did not decide the adequacy of plaintiffs’ notice of claim. It instead concluded, more fundamentally, that late payment of wages does not violate the prevailing wage rate statute and therefore does not give rise to liability under ORS 279.356(1). On review, plaintiffs take issue with both of those legal conclusions on the Court of Appeals’ part.⁶ BOLI, in its amicus capacity, sides with plaintiffs only on the issue of plaintiffs’ entitlement to liquidated damages under ORS 279.356(1) based on the late payment of their final wages.

II. DISCUSSION

A. Legal overview

To sketch the landscape for our discussion, we begin by briefly outlining the three statutory schemes involved. The first of the three — Oregon’s wage and hour statutes, ORS 652.010 to 652.570⁷ — governs the relationship between employers and employees on matters such as the maximum number of working hours, discriminatory wage rates, and when wages must be paid. With only a few exceptions, the wage and hour statutes apply to all employees in Oregon working at a fixed rate of compensation and give them common rights and remedies with regard to timely payment of wages.⁸ Pertinent to this case are the provisions that require an employer to pay a worker on a regular or statutorily specified payday. In general, ORS 652.120(1) provides that “[e]very employer shall establish and maintain a regular payday, at which date all employees shall be paid the wages due and owing to them.” For discharged employees, such as plaintiffs, ORS 652.140(1) requires an employer to pay all earned and unpaid wages within one business day after termination from employment. If a discharged employee is not timely paid final wages, the employer is subject to a penalty in the form of the continued accrual of the employee’s daily wages until those wages are paid. ORS 652.150(1).

The second of the three statutory schemes— Oregon’s prevailing wage rate statutes, ORS 279.348 to 279.380 — is modeled on the federal Davis-Bacon Act.⁹ Unlike the wage and hour provisions of ORS chapter 652, the prevailing wage rate statutes apply only to a narrow class of employees — workers on government construction (i.e., public works) projects. Under ORS 279.350(1), contractors (and their subcontractors) who successfully bid for public works projects are obligated to pay their workers what is termed the “prevailing rate of wage,” which ensures that those workers “are paid at least the prevailing wage in the area in which the project is carried out for the workers’ respective crafts.” Stockton v. Silco Construction Co., 319 Or 365, 368, 877 P2d 71 (1994). If a public works contractor pays a worker less than the applicable prevailing rate, the contractor is liable to the worker for the unpaid wages, plus liquidated damages of an equal amount. ORS 279.356(1).

The final set of pertinent statutes are those governing bonds for public works projects, which also are a part of ORS chapter 279. ORS 279.526 to 279.542. Unlike the wage and hour laws and the prevailing wage rate laws, those bonding provisions do not exclusively protect workers. They instead protect all suppliers of materials and labor for a public works project by providing them with an alternative source of payment, as would a construction lien for a private project. See School Dist. No. 1 v. Rushlight & Co., 232 Or 341, 348, 375 P2d 411 (1962) (public works bonds provide security comparable to that afforded by mechanics’ liens on private work). As pertinent to this case, a worker on a public works project who is paid less than the prevailing wage rate can bring an action on the construction bond to enforce liability for the violation. ORS 279.356(2).

B. Plaintiffs’ claim for penalty wages

We begin with the issue that arises under the Oregon wage and hour scheme, i.e., whether Acstar, as Vander Bley’s surety, is liable on the construction bond for what are termed “penalty wages” under ORS 652.150(1). As described, ORS 652.140(1) requires an employer to pay “all wages earned and unpaid” to a discharged employee within one business day after the employee’s last day of work. If the employer fails to pay those final wages on that date, and if the failure is willftd, a penalty arises under ORS 652.150(1):

“[I]f an employer willfully fails to pay any wages or compensation of any employee whose employment ceases, as provided in ORS 652.140 * * *, then, as a penalty for the nonpayment, the wages or compensation of the employee shall continue from the due date thereof at the same hourly rate for eight hours per day until paid or until action therefor is commenced. * * *”

The penalty for late payment accrues for a maximum of “30 days from the due date.” ORS 652.150(l)(a). An employer may avoid liability for penalty wages by showing “financial inability to pay the wages or compensation at the time the wages or compensation accrued.” ORS 652.150(5). If the employer fails to pay the final earned wages or any penalty wages that accrued for their late payment, the employee has a statutory “wage claim” against the employer for those amounts. See ORS 652.320(7) (“wage claim” is a claim against the employer for “any wages, compensation, damages or civil penalties provided by law to employees in connection with a claim for unpaid wages”).¹⁰

In this case, plaintiffs’ employer, Vander Kley, fell into financial distress and, for months, had not been paying plaintiffs on time. Eventually, he was unable to pay them at all. At that point, Vander Kley discharged plaintiffs and Acstar, as Vander KLey’s surety, stepped in to pay plaintiffs their final wages. By then, the wages already were overdue under ORS 652.140(1). Acstar paid plaintiffs their final wages once it determined the amount owed to each one, which delayed the payments past the due date by about a month. Acstar did not, however, pay plaintiffs penalty wages based on the untimeliness of their final paychecks.

Plaintiffs have two arguments for why they are entitled to recover penalty wages from Acstar. First, they argue that Acstar is liable under ORS 279.526(1), which provides the mechanism for recovery against a contractor’s surety bond on a public works project:

“A person claiming to have supplied labor or materials for the prosecution of the work provided for in the contract, including any person having direct contractual relationship with the contractor furnishing the bond or direct contractual relationship with any subcontractor * * * has a right of action on the contractor’s bond [or other security] as provided for in ORS 279.029 only if:

“(a) The person or the assignee of the person has not been paid in full; and

“(b) The person gives written notice of claim, as prescribed in ORS 279.528, to the contractor and the state agency, if the contract is with a state agency, or the clerk or auditor of the public body that let the contract if the public body is other than a state agency.”

Relying on paragraph (a) of subsection (1), plaintiffs argue that they have not been “paid in full” because the compensation legally owed to them includes penalty wages under ORS 652.150. In effect, plaintiffs urge that being “paid in full” implicitly encompasses statutory penalties in connection with unpaid earned wages, as well as unpaid wages themselves.

In resolving that issue, our decision in Butler v. United Pacific Ins.Co., 265 Or 473, 509 P2d 1184 (1973), is instructive. Butler involved whether a surety on a statutorily required automobile dealer’s bond was liable for punitive damages assessed against the dealer in a civil action. This court began its analysis with the common-law principle that a surety ordinarily is not liable for penalties imposed by law on a person covered by the bond. Id. at 474-75 (citing with approval Restatement (First) of Security § 181 (1941)).¹¹ The rationale for that limitation is that the purpose of a penalty— i.e., to deter disfavored conduct — is ill-served when the person who engaged in the conduct does not have to pay the penalty. Id. at 477. Punitive damages, the court observed, fall within that rationale because they are imposed as a penalty to deter tortious conduct, rather than as compensation. Id. As the court acknowledged, the legislature can change a suretys liability to encompass penalties such as punitive damages. Id. at 475. But the court was unwilling to impose liability on a surety for penalty amounts unless the legislature had, in clear and unambiguous terms, so provided by statute. Id. at 475-78. The statute at issue in Butler permitted a plaintiff to recover from the bond “any loss or damage” suffered due to an automobile dealer’s fraud; it did not expressly or in other clear terms authorize recovery of punitive damages. Id. The court therefore held that the surety was not liable for those amounts. Id. at 478.¹²

As was true of the punitive damages in Butler, “penalty wages” under ORS 652.150(1) are the kind of penalty for which a surety ordinarily is not liable. They accrue for an employer’s willful failure to pay a terminated employee earned wages on time. ORS 652.150(1). Penalty wages are designed “to spur an employer to the payment of wages when they are due” and are punitive, not compensatory, in nature. Nordling v. Johnston, 205 Or 315, 326, 283 P2d 994 (1955).¹³ Id. Under Butler, then, Acstar is liable on its bond for penalty wages only if the legislature unambiguously has provided for sureties on public works projects to be liable for penalties arising from the contractors’ breach of their payment obligations.

ORS 279.526(1) does not so provide. The statute declares that a person “claiming to have supplied labor * * * for the prosecution of the work provided for in the contract” has a “right of action on the contractor’s bond [or other security] as provided for in ORS 279.029[.]” In the paragraphs that immediately follow, the statute imposes two conditions on bringing an action on the bond: (1) the plaintiff must not have been “paid in full” and (2) the plaintiff must have given written “notice of claim.” ORS 279.526(1)(a), (b). In context, “paid in full” and “notice of claim” refer to the claim for labor supplied on a public works project — i.e., a claim for earned wages.¹⁴ The statute does not expand the surety’s liability to include penalties arising from the principal’s breach of its payment obligations, and it certainly does not do so in the express and unambiguous terms that Butler requires. We therefore hold that penalty wages under ORS 652.150(1) are not recoverable in an action on a public works construction bond under ORS 279.526(1).

Plaintiffs’ second theory for holding Acstar liable for penalty wages is that Acstar is directly liable for penalty wages under ORS 652.150(1) as Vander Kley’s agent, apart from its liability as a surety. As both the trial court and the Court of Appeals reasoned, however, our analysis in Taylor v. Werner Enterprises, Inc., 329 Or 461, 988 P2d 384 (1999), forecloses that argument.

In Taylor, this court held that ORS 652.150(1) imposes liability for penalty wages on a worker’s “employer” and that, for purposes of that statute, the definition of employer in ORS 652.310(1) applies. 329 Or at 467. Under that definition, employer means “any person who in this state, directly or through an agent, engages personal services of one or more employees[.]” ORS 652.310(1). Thus, liability for penalty wages extends only to a person who “engages” an employee’s personal services. Even assuming that Acstar was in some sense Vander Kley’s agent for purposes of paying his former employees (a question that we do not decide), Acstar did not engage plaintiffs’ personal services. Acstar therefore was not their “employer” for purposes of ORS 652.150(1) and has no direct liability for penalty wages under the statute.

C. Plaintiffs’ claim for liquidated damages

'The second issue for our resolution is whether plaintiffs are entitled to recover liquidated damages under the prevailing wage rate statutes for Vander Kley’s late payment of wages. Unlike the penalty wages issue previously discussed, the liquidated damages issue does not turn on whether those damages can be recovered in an action against the surety on a contractor’s bond. ORS 279.356, which provides the remedy for violation of the prevailing wage rate requirement of ORS 279.350, expressly provides that they can be:

“(1) Any contractor or subcontractor or contractor’s or subcontractor’s surety who violates the provisions of ORS 279.350 shall be liable to the workers affected in the amount of their unpaid minimum wages, * * * and in an additional amount equal to said unpaid wages as liquidated damages.

“(2) Actions to enforce liability to workers under subsection (1) of this section may be brought as actions on contractors’ bonds as provided for in ORS 279.536.”

Significantly, the statute expressly imposes liability for liquidated damages only for a “violation of] the provisions of ORS 279.350,” the prevailing wage rate statute. As already described, Acstar paid plaintiffs at the statutorily mandated prevailing rates of wage, but delivered their paychecks weeks after the date on which Vander Kley owed them under ORS 652.140. Plaintiffs’ entitlement to liquidated damages in their action on the bond therefore depends on whether late payment of wages at the statutorily mandated rate of wage is, in law, a failure to pay at the statutorily mandated rate and, therefore is a violation of ORS 279.350.

Our starting point is the text of subsection (1) of ORS 279.350, which is the source of a contractor’s obligation to pay prevailing wage rates on public works projects. That subsection states, in part:

“The hourly rate of wage to be paid by any contractor or subcontractor to workers upon all public works shall be not less than the prevailing rate of wage for an hour’s work in the same trade or occupation in the locality where such labor is performed.”

Under that provision, a public works contractor must pay workers on the project an “hourly rate” of wage that is “not less than the prevailing rate of wage” for an hour’s work in the local area where the work is to be performed. The term “prevailing rate of wage” means “the rate of hourly wage, including all fringe benefits * * *, paid in the locality to the majority of workers employed on projects of similar character in the same trade or occupation[.]” ORS 279.348(1). Thus, by its terms, the obligation that ORS 279.350(1) creates is the obligation to pay wages at a particular hourly rate. The statute does not direct when wages must be paid.

The statute’s singular focus — on the hourly rate of wages, not on when payment is made — is confirmed by the remainder of subsection (1). Immediately after the sentence specifying that the hourly rate of wage “to be paid” shall “be not less than the prevailing rate of wage,” the statute specifies what a contractor must do to discharge that obligation:

“The obligation of a contractor or subcontractor to pay the prevailing rate of wage may be discharged by making the payments in cash, by [providing statutorily-approved fringe benefit contributions], or any combination thereof, where the aggregate of any such payments, contributions and costs is not less than the prevailing rate of wage.”

ORS 279.350(1). That provision, too, is expressly directed only to the amount of wage that must be paid, not the timing of the payment. The text of ORS 279.350(1) is straightforward and unambiguous: a contractor on a public works project is obligated to pay its employees no less than a statutorily dictated minimum hourly rate; if the contractor does so, that obligation is satisfied. The other subsections of ORS 279.350 reinforce that conclusion. Their terms, too, are directed — pervasively and consistently — to the amount of the wage rate obligation, not when wages must be paid.¹⁵

Finally, the same is true of the remedies provided in ORS 279.356(1) for a violation of ORS 279.350. They also turn only on whether the contractor paid wages at the statutorily mandated rate, not on whether the contractor paid that rate at a particular time. Specifically, a violation of ORS 279.350 results in liability in the “amount” of a worker’s “unpaid minimum wages” together with liquidated damages in an equal measure. ORS 279.356(1). In contrast to the penalty under ORS 652.150(1) for late payment of termination wages, the remedy for violating the prevailing wage rate requirement is not based on, or affected by, the length of time that the minimum amount of wages were unpaid. The relevant statutes — ORS 279.350(1), describing the prevailing wage rate obligation, and ORS 279.356(1), describing liability for violating that obligation — -reflect a consistent purpose to enforce the mandated hourly wage rate, not to independently enforce whatever obligation the contractor has to pay wages timely.

The wage rate obligation imposed by ORS 279.350(1) therefore is satisfied when the contractor, or in this case its surety, tenders payment to the employees based on a wage rate that is not less than the statutorily mandated minimum. Conversely, if the contractor tenders wages at less than the prevailing wage rate, regardless of whether the payment is timely or untimely, the contractor violates the prevailing wage rate obligation. The contractor then incurs liability for liquidated damages and the worker may recover those liquidated damages in an action on the bond, as ORS 279.356(2) expressly provides. That does not mean that contractors on public works projects have no obligation to pay their workers within or at a specified time. They do. The obligation arises from the wage and hour provisions of ORS chapter 652, which, as already discussed, give employees of public works contractors the same remedies, on the same terms, as they give to Oregon workers generally. The liquidated damages that plaintiffs seek under ORS 279.356(1) expressly arise only from a violation of the prevailing wage rate requirement of ORS 279.350(1). The legislature did not tie that remedy to any statute that imposes a time-of-payment obligation on employers generally or on public works contractors in particular.¹⁶

BOLI concedes that ORS 279.350 does not expressly impose a time-of-payment obligation on public works contractors. BOLI urges, however, that “[o]ther statutes provide context establishing that workers on public-works contracts are entitled to receive the prevailing wage on their regular paydays.” BOLI points to the provisions in ORS chapter 279 that require employers to maintain regular records of the payroll and that permit the commissioner to inspect those records. See ORS 279.354 (requiring weekly certification of wage rate); ORS 279.355 (inspection of payroll records). BOLI urges that there would be “little reason” to mandate the maintenance of weekly payroll records if the legislature did not intend to require regular payment.

BOLI’s argument reads too much into those statutes. Those provisions implement the commissioner’s general authority to “gather facts and information necessary to determine if the prevailing rate of wage is actually being paid.” ORS 279.355(1) (emphasis added). To aid the commissioner in that task, ORS 279.354(1) requires every contractor on a public works project to file weekly statements under oath “certifying the hourly rate of wage paid each worker” on the project and “further certifying that no worker employed upon such public work has been paid less than the prevailing rate of wage” specified in the contract. The contractor is not required to certify that the wages were paid timely. As BOLI acknowledges in its brief, the regular pay records that the commissioner is authorized to inspect are incidents of an employer’s obligation under ORS 652.120 to establish regular paydays for its employees. The fact that the legislature assumed the existence of regular payroll records for purposes of the commissioner’s authority to determine “if’ the prevailing wage rate is being paid implies no obligation, separate from or independent of the obligations imposed by ORS chapter 652, to pay the employees at a particular time. Said another way, determining that wages were paid is necessary to determine how much was paid, but determining the timeliness of the payment is not.¹⁷

Using a different line of reasoning than that offered by plaintiffs or BOLI, the dissent comes to a like conclusion: “a contractor violates the prevailing wage statute, and wages are unpaid, when a contractor fails to pay its workers the prevailing wage on the date that wage is due, viz.: the statutorily required payday.” 343 Or at 330 (Walters, J., dissenting) (emphases in original). To arrive at that formulation, the dissent conflates the several discrete statutes involved and, in the process, rewrites them.

The requirement that “[e]very employer shall establish and maintain a regular payday, at which date all employees shall be paid the wages due and owing to them,” arises under ORS 652.120(1). The requirement that “[t]he hourly rate of wage to be paid by any contractor or subcontractor to workers upon all public works shall be not less than the prevailing rate of wage” is in ORS 279.350(1). Finally, and significantly, the term “unpaid” — which is central to the dissent’s analysis — is in ORS 279.356(1), which describes the contractor’s liability for failing to pay the prevailing rate of wage: “Any contractor * * * who violates the provisions of ORS 279.350 shall be liable to the workers affected in the amount of their unpaid minimum wageslY (Emphasis added.) The dissent acknowledges, as it must, that those statutes reside in separate chapters of the ORS, but urges that their “obligations are interdependent” and that they “work hand in glove” to require the contractor to pay the prevailing wage on payday, otherwise the contractor “violates the prevailing wage statute and must pay the penalty set forth in ORS 279.356.” 343 Or at 332 (Walters, J., dissenting).

There lies the heart of our disagreement with the dissent. The fact that the statutes are complementary and work together does not mean that this court can mix and match the obligations and remedies that they contain. A contractor’s statutory obligation to pay wages on a particular day is independent of the statutory obligation to compensate workers at not less than the prevailing hourly wage rate. The legislature could repeal either obligation without affecting the other. The legislature was entitled to — and did — create different remedies and liabilities for those legally distinct and independent obligations. Our analysis gives effect to the legislature’s policy choice to treat the failure to pay wages timely as a different problem than paying too low an hourly rate of wage. The dissent’s analysis does not.

The dissent is wrong in asserting that “ORS 279.356 provides the sole remedy” for a contractor’s failure to pay wages on the dates due under ORS chapter 652. See 343 Or at 332 (Walters, J., dissenting). As the dissent later concedes, but only by way of footnote, ORS 652.150 contains a substantial penalty provision for an employer that does not timely pay termination wages — which are the only wages involved in this case. Id. at 332 n 3. As to the obligation to pay wages on a regular payday, ORS chapter 652 does, in fact, contain provisions to enforce that obligation, as described earlier in this opinion. 343 Or at 313-14 n 10. To be sure, the legislature did not provide for automatic economic penalties any time an employer, for any reason, does not pay its employees on the regular paydate. One of the primary ways that obligation is enforced is through the commissioner’s discretion to require the employer to post a special bond in an amount as is “reasonable and adequate in the circumstances.” ORS 652.340(1). If the employer does not post the bond, it is up to a court to enforce the obligation if “reasonably necessary or appropriate to secure the prompt payment of the wages.” ORS 652.340(3). As the statutory scheme stands, the regular payday obligation is not unbending. If, for example, a computer glitch, a fire, an earthquake, a repeat of the 1996 flooding disasters through the Willamette Valley, or other equally sympathetic circumstance causes the employer to issue paychecks after the regular paydate, no penalty or other harsh economic consequence would follow. The dissent’s analysis, however, would nullify the latitude that the legislature built into the statutory scheme.

In an effort to defend its approach, the dissent resorts to federal law and draws on federal court interpretations of the Fair Labor Standards Act’s (FLSA) “prompt payment” requirement for the federal minimum wage. See 343 Or at 334-37 (Walters, J., dissenting). Fundamentally, however, FLSA is not the correct federal law analog. The Davis-Bacon Act, on which Oregon’s and numerous other state and local prevailing wage rate provisions are modeled, is the proper federal act to consider.¹⁸ The dissent does not cite— nor does research disclose — so much as one reported decision holding that a late wage payment at the statutorily mandated hourly wage rate violates any jurisdiction’s prevailing wage rate law.¹⁹

Even if FLSA were a correct analog, the dissent’s reliance on it is misplaced. Federal courts have implied a time-of-payment obligation under FLSA because Congress left that gap for them to fill. See, e.g., Biggs v. Wilson, 1 F3d 1537, 1539-41 (9th Cir 1993) (identifying express provisions of FLSA that would be ineffective if no time-of-payment requirement were implied) and 1544-46 (Trott, J., dissenting) (agreeing that Congress, through its silence, left the courts to imply a time-of-payment requirement, but disagreeing that any delay beyond when wages are legally owed, however slight or for whatever reason, triggers a violation of FLSA).²⁰ The same is not true of our statutory scheme. The legislature filled the gap expressly, by creating both time-of-payment obligations and express rights and liabilities that arise from an employer’s failure to comply with those obligations in ORS chapter 652. This court has no license to imply different or further rights and liabilities where the legislature has fashioned them expressly. See generally Stockton, 319 Or at 376 (the remedial nature of the prevailing wage rate statutes does not give this court authority to read into the statutes a remedy that the legislature did not intend to create).²¹

We therefore hold that the late payment of the full amount of wages owed at the prevailing wage rate does not violate the prevailing wage rate statute, ORS 279.350(1). In this case, it is undisputed that Acstar paid plaintiffs at the statutorily mandated prevailing wage rates. Consequently, the amount that plaintiffs were paid did not violate the prevailing wage rate statute and plaintiffs were not entitled to liquidated damages under ORS 279.356(1), as both the Court of Appeals and the trial court concluded.

The decision of the Court of Appeals is affirmed. The judgment of the circuit court is affirmed.

1 Acstar is not the only defendant in the case. Defendants also include the general contractor (OC America Construction, Inc.) and its surety (American Home Assurance Company), as well as the subcontractor (Vander Kley) who employed plaintiffs. The judgment resolved all claims as to all parties. In the Court of Appeals, plaintiffs did not challenge the trial court’s rulings that absolved the general contractor and its surety of liability. As noted, Vander Kley is insolvent. Thus, the surety issues before the Court of Appeals concerned only defendant Acstar’s liability. On review, the issues before this court are likewise limited. We therefore discuss the procedural and historical facts only as they pertain to defendant Acstar.

2 In 2003, the legislature repealed ORS chapter 279. Or Laws 2003, ch 794, § 332. That repeal became effective March 1, 2005, and applies only to public contracts first advertised or entered into on or after that date. Id. at §§ 336, 337. Consequently, we refer throughout this opinion to the 1999 versions of the provisions of ORS chapter 279, which were in effect at the time of the relevant events in this action.

3 ORS 279.029(4) required a contractor on a public improvement project to be bonded and provided, in part:

“The successful bidder shall:

“(b) If the contract is for a public improvement, execute and deliver to the public contracting agency a good and sufficient bond, to be approved by the public contracting agency, in a sum equal to the contract price for the faithful performance of the contract.”

4 See generally ORS 279.354(1) (requiring subcontractor to file weekly certified statements with the public contracting agency setting out, among other information, a worker’s correct classification, rate of pay, number of hours worked, deductions from pay, and actual wages paid).

5 The relevant parts of those statutes are set out below.

6 The Court of Appeals also held that plaintiffs’ claims against their employer, Vander KLey, were barred by his discharge in bankruptcy. See 11 USC § 524(a) (voiding any judgment that determines the personal liability of a discharged debtor and enjoining any further proceedings to make the debtor personally liable for the debt). On review, plaintiffs do not challenge that holding. Defendant Acstar, however, renews its challenges to the adequacy of plaintiffs’ notice of their claim as an additional or alternative ground for affirming the Court of Appeals on the liquidated damages issue. As did the Court of Appeals, we decline to reach that question given our resolution of the liability issues.

7 The provisions of ORS chapter 652 at issue here have been amended since the relevant events in this action occurred. The operative text of the current provisions, however, is substantively the same as the 1999 version in effect at the time of those events. For that reason, we refer to the current versions of the provisions of ORS chapter 652.

8 Employees of the federal government are among the few who are not covered by the time-of-payment provisions of ORS chapter 652. See ORS 652.210(2) (exempting the federal government from definition of employer).

9 40 USC §§ 3141 to 3148 (formerly 40 USC §§ 276a to 276a-5). A comprehensive discussion of the origins of Oregon’s prevailing wage rate statutes and their parallels to the federal act is contained in Stockton v. Silco Construction Co., 319 Or 365, 373-76, 877 P2d 71 (1994).

10 In addition to the penalty wages provision of ORS 652.150, the wage and hour statutes of ORS chapter 652 contain several other enforcement mechanisms for an employer’s time-of-payment obligations. See, e.g., ORS 652.125 (when an employer is “failing to pay wages within five days” of a regular payday, commissioner of BOLI may require the employer to post a bond to secure future payment); ORS 652.330(l)(a) (authorizing commissioner to investigate and attempt to equitably resolve employee wage claims); ORS 652.330(1)(b), (c) (employee can assign wage claim to commissioner, who may pursue civil and criminal actions for wage law violations); ORS 652.340 (if employees are not being paid for their services, commissioner may require employer to post a bond in such amount as is “reasonable and adequate in the circumstances” to ensure employees are paid “in accordance with the laws of Oregon”); ORS 652.409 (when employer is unable to pay wages, the worker can be paid back wages from the Wage Security Fund); ORS 652.900(1) (commissioner can assess a civil penalty of up to $1,000 for each failure to timely pay termination wages).

11 Although Butler involved punitive damages, the general limitation on surety liability that it endorsed from the Restatement is not a special rule for punitive damages. The limitation applies to any statutory liability designed to serve as a penalty rather than as compensation for losses arising directly from the breach of the duties secured by the bond. See Restatement (First) at § 181 (givingillustrations and citing cases). Consequently, treble damages and similar forms of penalties for nonpayment of wages or violation of prevailing wage laws generally are not recoverable from a construction bond. See 19 ALR 5th 900 (1994) (collecting representative cases and so observing).

12 The general principle of suretyship, as originally stated in the 1941 Restatement (First), now expressly applies to statutorily required bonds. Under the Restatement (Third) of Suretyship & Guaranty § 73 (1996), “[w]hen the secondary obligation is a legally mandated bond, that obligation does not include any penalties imposed on the principal obligor for failure to fulfill the underlying obligation unless the secondary obligation so provides.” The commentary to the Restatement explains:

“a. General principle. When a secondary obligor issues a legally mandated bond, the secondary obligor assumes liability for losses resulting from the failure of the principal obligor to fulfill its underlying obligation. Sometimes the law also imposes a penalty on the principal obligor for failure to fulfill that obligation. Such a penalty, however, is typically considered punitive rather than compensatory. * * *

“If, of course, the law requiring the issuance of the legally mandated bond provides that any secondary obligation entered into in furtherance of the law is deemed to provide for the penalty, that penalty is covered by the secondary obligation.”

Id. at § 73 comment a. The comment cites Butler as exemplary of the principle. Id.

13 Plaintiffs attempt to argue that the penalty wages are compensation for work actually performed. The text of the statute is to the contrary. See ORS 652.150(1) (penalty wages accrue after “employment ceases,” for “willful” late payment, and are expressly characterized as a “penalty” for the failure to pay the employee’s wages or compensation when due). So is our prior case law. Nordling, 205 Or at 326; State ex rel Nilsen v. Ore. Motor Ass’n, 248 Or 133, 136, 432 P2d 512 (1967) (under ORS 652.140(1) and ORS 652.150(1), the obligation to pay penalty wages arises for late payment of “wages,” which are all earned compensation that the employer owes for the employee’s personal services).

14 That understanding is reinforced by the cross-reference to ORS 279.029. That statute requires a contractor on a public works project to obtain “a good and sufficient bond * * * in a sum equal to the contract price for the faithful performance of the contract.” ORS 279.029(4)(b) (emphasis added). Under general suretyship principles, bond language guaranteeing "faithful performance” of the principal’s underlying obligations generally imposes liability on the surety for losses due to the principal’s defaults, not for penalties that the law may impose for the defaults. Restatement (First) at § 181 comment a.

15 See ORS 279.350(2) (once a contract for a public works project is executed, a contractor may not challenge “the amount” of the prevailing rate of wage in any legal proceeding); ORS 279.350(3) (it is not a defense in any legal proceeding that the correct prevailing rate of wage “is less than the amount” required by the specifications for the public contract); ORS 279.350(4) (public works contractors must post the “prevailing wage rates” for each project in a “conspicuous” place; no provision requiring contractor to post date on which wages must be paid); ÓRS 279.350(5) (employer must post notice describing fringe benefits owed as part of contractor’s prevailing wage obligation); ORS 279.350(6) (subject to specified exceptions, no portion of prevailing rate of wage can be paid by person other than the contractor); ORS 279.350(7) (no person may take any action that circumvents payment of the prevailing rate of wage, including “reducing an employee’s regular rate of pay” in a way that would offset the prevailing wage rate).

16 ORS 279.312(l)(a) directs public works contracts to include a clause that the contractor must “[m]ake payment promptly, as due, to all persons supplying to such contractor labor or material” for the project. In turn, ORS 279.314 identifies the remedies to be contractually specified for a contractor’s failure, neglect, or refusal to promptly pay a claim for labor or materials. See ORS 279.314(1) (contract must provide that public contracting agency may pay “claim for labor” and charge the amount paid against funds owed to the contractor); ORS 279.314(2) (contract must, in limited circumstances, obligate contractor to pay interest on amounts not paid promptly). Those remedies do not include liquidated damages, nor do they cross-reference ORS 279.356, which provides for liquidated damages for violating the prevailing wage rate requirement.

17 Beyond relying on those statutes, BOLI’s argument for a contrary interpretation of ORS 279.350 is policy-based. BOLI asserts that, if late payment of prevailing wages is not deemed a violation of ORS 279.350, then public works contractors could delay payment of wages indefinitely, which would run afoul of the goal of providing workers on public works contracts with economic security in the form of a fair wage. BOLI’s arguments disregard that the same set of statutes that creates the obligation to pay on a particular date or within a particular time of discharge also creates remedies to enforce compliance with those obligations. As we have discussed, Oregon workers in general are entitled to the time-of-payment protections of ORS chapter 652. Workers on public works contracts share those rights and remedies in common with other workers.

18 As many as 40 states have adopted “little Davis-Bacon Acts” of their own and numerous local jurisdictions have adopted “micro Davis-Bacon Acts” providingprevailing wage rate guarantees as well. See Lisa Morowitz, Government Contracts, Social Legislation, and Prevailing Woes: Enforcing the Davis Bacon Act, 9 In Pub Interest 29, 30, 30 n 5 (1989) (describing prevalence of state and local prevailing wage rate provisions).

19 In relying on federal court interpretations of FLSA, the dissent observes that the liquidated damages remedy provided by ORS 279.356(1) is worded “virtually identical by]” to that of the FLSA, and that the Davis-Bacon Act contains no similar remedy. See 343 Or at 335-36, 337 (Walters, J., dissenting). That much is true. See Universities Research Assn. v. Coutu, 450 US 754, 776, 782, 101 S Ct 1451, 67 L Ed 2d 662 (1981) (Davis-Bacon Act gives worker an action against contractor or construction bond for unpaid back wages; 1932 amendment imposing additional penalties for wage rate violation was passed by Congress but vetoed by the President). The dissent’s observation begs the question, however. The issue here is not what remedy arises for a violation of the prevailing wage rate obligation imposed by ORS 279.350. The issue is: what is the nature of that obligation? The Davis-Bacon Act, not FLSA, is the federal act on which the substantive prevailing wage rate obligation was modeled.

20 Contrary to the dissent’s interpretation of Oregon’s prevailing wage rate law, a FLSA violation is triggered by a failure to pay within a reasonable time, not a failure to pay on a regular payday. See, e.g., Rogers v. City of Troy, New York, 148 F3d 52, 56-58 (2d Cir 1998) (prompt payment requirement under FLSA is not tied to employer’s obligation to tender wages on payday, but instead depends on whether employer has unreasonably delayed making payment, given the objective circumstances); see also 29 CFR § 778.106 (2007) (prompt payment requirement for overtime is not tied to agreed payday, but instead is satisfied if employer pays overtime as soon as practicable; employer may delay for a period reasonably necessary to compute and arrange for payment of the amount due). The Ninth Circuit’s decision in Biggs appears to be the only federal case holding that the FLSA “prompt payment” obligation requires wages to be paid on payday, regardless of why the employer tendered them late. 1 F3d at 1539-41. Biggs thus appears to be an isolated precedent that no other federal court has followed.

21 The dissent’s discussion of the interplay between the statute guaranteeing a regular payday (ORS 652.120) and the state minimum wage laws (ORS 653.025 and ORS 653.055) strays particularly far from the legal issue that this case presents. See 343 Or at 333 n 4, 337 n 7 (Walters, J., dissenting). None of those statutes is involved in this case. The interplay — if any — between them has not been examined or decided by this court, and any discussion of them would be and is dictum.