Administrator, Wage & Hour Div., USDOL v. Paradigm Construction & Engineering, Inc.

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
ADMINISTRATOR, WAGE AND
HOUR DIVISION, UNITED STATES
DEPARTMENT OF LABOR,
PROSECUTING PARTY,
v.
PARADIGM CONSTRUCTION &
ENGINEERING, INC., KENT
GLESENER, and CHRISTIE
GLESENER,
RESPONDENTS.
ARB CASE NO. 2023-0054
ALJ CASE NO. 2017-DBA-00010
ALJ PATRICK M. ROSENOW
DATE: January 30, 2026
Appearances:
For the Prosecuting Party, Administrator, Wage and Hour Division:
Seema Nanda, Esq., Jennifer S. Brand, Esq., Sarah K. Marcus, Esq.,
Jonathan T. Rees, Esq., Dean A. Romhilt, Esq.; U.S. Department of
Labor, Office of the Solicitor; Washington, District of Columbia
For the Respondents:
Jeffrey S. Fowler, Esq., and Marron A. Mahoney, Esq.; Laner Muchin,
LTD; Chicago, Illinois
Before JOHNSON, Chief Administrative Appeals Judge, and KAPLAN and
BURRELL, Administrative Appeals Judges
DECISION AND ORDER
This matter arises under the Davis-Bacon Act (DBA)1 and the Davis-Bacon
Related Acts (DBRA), including the Contract Work Hours and Safety Standards Act
1 40 U.S.C. § 3141 et seq.

2
(CWHSSA),2 and their implementing regulations.3 Administrative Law Judge (ALJ)
Patrick M. Rosenow found that Paradigm Construction & Engineering, Inc., Kent
Glesener, and Christie Glesener (Respondents) falsified certified payroll reports,
failed to pay workers weekly, misclassified skilled workers as laborers, failed to
include independent contractor Ronald Barnes on payroll, and failed to cooperate
with the Department of Labor’s Wage and Hour Division (WHD).4 The ALJ ordered
Respondents to pay $14,058.08 to eighteen employees, and debarred Respondents
for three years.5 Respondents appealed to the Administrative Review Board
(Board). For the following reasons, we affirm.
BACKGROUND
Paradigm Construction & Engineering, Inc., is a company that worked on
federally funded highway bridge construction projects in Oklahoma and is owned by
Kent and Christie Glesener.6
Prior to the instant case, in early 2013, the WHD directed investigator Jacob
Wiles to investigate two of Respondents’ projects.7 Respondents provided some of
the requested documents and permitted the WHD to interview its employees.8
During the investigation, Wiles received a call from Darren Kaihlanen, the chief
compliance officer for the Federal Highway Administration in Oklahoma, informing
Wiles that he believed that Respondents should not be involved in federal
contracting after speaking with Christie Glesener about certified payroll records.9
Wiles determined that Respondents violated the DBRA by misclassifying skilled
workers as laborers, improperly calculating fringe benefits, failing to pay workers
weekly, and failing to submit certified payroll records on a weekly basis.10
Respondents contested the WHD’s findings.11 As part of the negotiation process, the
2 Id. § 3701.
3 29 C.F.R. Parts 1, 3, 5-7 (2023). In addition to the DBA, many federal statutes
providing federal funding for construction projects incorporate the DBA’s requirements. 29
C.F.R. § 5.1(a). The CHWSSA, as one of the many Davis-Bacon Related Acts, requires
application of the labor standards provisions of the DBA.
4 Decision and Order (D. & O.) at 23-24.
5 Id.
6 Id. at 3.
7 Id.
8 Id.
9 Id. at 3-4.
10 Id. at 4.
11 Id.

3
WHD offered to reduce the alleged back wages if Respondents would agree in
writing that they violated the DBRA but would promise to comply in the future.12
Respondents declined and requested a comprehensive explanation of their non-
compliance.13 Since the contracts were paid in full and the back wages were small,
the WHD dropped the matter.14 The WHD turned its focus to Respondents’ current,
ongoing contracts because Kaihlanen had informed the WHD that he believed
Respondents were misclassifying and underpaying workers.15
In November 2014, the WHD assigned Investigator Cheryl Masters to
investigate three bridge construction contracts Respondents had with the Oklahoma
Department of Transportation (ODOT).16 On December 5, 2014, Kaihlanen sent
Masters a daily summary report, payroll reports, and other records.17 That same
day, Masters requested records from ODOT.18
On December 22, 2014, Masters sent Respondents a letter notifying them
that she was investigating them and requesting records.19 Respondents did not
provide the records and would not agree to meet with Masters.20 Over several
months, Masters sent several more letters requesting to meet with Respondents
and to obtain records.21 Respondents remained uncooperative.22
On April 1-2, 2015, and May 21-22, 2015, Masters conducted site visits.23
Masters was unable to meet with the Gleseners in April but conducted some
employee interviews.24 During the May 21, 2015 visit, Masters identified herself to
Christie and explained why she was there.25 In response, Christie threatened to call
12 Id.
13 Id.
14 Id.
15 Id.
16 Id.
17 Id. at 4-5.
18 Id. at 5.
19 Id.
20 Id.
21 Id.
22 Id.
23 Id.
24 Id.
25 Id.

4
the police if Masters did not leave, citing safety reasons.26 No other meeting with
the Gleseners took place.27
On May 9, 2016, WHD issued a charging letter, finding that Respondents
misclassified and underpaid workers, failed to pay workers weekly, failed to post
the correct posters and information at jobsites, and violated recordkeeping
regulations.28 The WHD ordered Respondents to pay $24,058.73 in back wages and
recommended that Respondents be subject to debarment.29
Respondents objected and requested a hearing with an ALJ before the Office
of Administrative Law Judges.30 At this point, Respondents submitted the records
that Masters had requested.31 A hearing was held on March 23-26, 2021, and June
8-11, 2021.32 On August 28, 2023, the ALJ issued a Decision and Order (D. & O.),
finding that Respondents falsified certified payroll reports, failed to pay workers
weekly, misclassified workers, failed to include Ronald Barnes on certified payroll
reports, and failed to cooperate with the WHD.33 The ALJ ordered Respondents to
pay $14,058.08 to eighteen employees and debarred Respondents for three years.34
Respondents petitioned the Board to review the D. & O.
JURISDICTION AND STANDARD OF REVIEW
This Board has jurisdiction to hear appeals concerning questions of law or
fact from the Administrator’s final determinations under the DBA and CWHSSA.35
The Board’s review of the ALJ’s decision “is in the nature of an appellate
proceeding,” and the Board “will not hear [factual] matters de novo except upon a
26 Id.
27 Id.
28 Id. at 2, 5-6.
29 Id. at 2.
30 Id.
31 Id. at 5 n.14.
32 Id. at 2.
33 Id. at 1, 23-24.
34 Id. at 23-24.
35 Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB
decisions)), 85 Fed. Reg. 13,186 (Mar. 6, 2020).

5
showing of extraordinary circumstances.”36 Under this standard of review, the
Board “will assess the ruling to determine whether it is consistent with the
applicable statute and regulations, and is a reasonable exercise of the discretion
delegated to the Administrator to implement and enforce the DBA.”37
DISCUSSION
Upon review of the ALJ’s D. & O., the parties’ arguments, and the record, the
Board affirms the ALJ’s D. & O.38
1. Respondents Violated the DBA and Its Related Acts
The DBA requires the payment of locally prevailing wage rates and fringe
benefits to laborers and mechanics working on Federal contracts in excess of $2,000
for the construction, alteration, or repair of public buildings and public works.39
As the Supreme Court has recognized, the DBA is “a minimum wage law designed
for the benefit of construction workers.”40 The purpose of the DBA is “to protect local
wage standards by preventing contractors from basing their bids on wages lower
than those prevailing in the area.”41 In addition, the DBA requires employees be
“paid the appropriate wage rate and fringe benefits on the wage determination for
the classification of work actually performed, without regard” to the level of skill
required.42 For workers performing work in more than one classification, employers
may compensate the work at the rate specified for each classification for the time
36 29 C.F.R. § 7.1(e); Jamek Eng’g Servs., Inc., ARB No. 2020-0043, ALJ No. 2017-DBA-
00021, slip op. at 7 (ARB June 23, 2021) (citation omitted).
37 Id. (citation omitted).
38 Respondents also raise arguments pertaining to the Department of Labor’s
administrative hearing and review process for the first time on appeal, contending the
Department’s adjudication procedures violate the Seventh Amendment and Article III of
the U.S. Constitution. Respondent’s (Resp.) Brief (Br.) at 42. We decline to address this
issue. Under the applicable regulations, Secretary’s Order, and ARB precedent, the ARB is
bound to adjudicate claims consistently with the statute and Department regulations and
the Board generally does not consider constitutional challenges to such regulations.
Secretary’s Order No. 01-2020, 85 Fed. Reg. 13,186.
39 See 40 U.S.C. § 3142.
40 United States v. Binghamton Constr. Co., 347 U.S. 171, 178 (1954).
41 Dist. Council of Iron Workers of the State of Cal. v. Adm’r, Wage & Hour Div., U.S.
Dep’t of Lab., ARB No. 2020-0035, slip op. at 2 (ARB July 26, 2022) (quoting Univs. Rsch.
Ass’n, Inc. v. Coutu, 450 U.S. 754, 773 (1981)).
42 29 C.F.R. § 5.5(a)(1)(i).

6
actually worked in that classification provided the “payroll records accurately set
forth the time spent in each classification in which work is performed.”43
A. Respondents Failed to Maintain Accurate Records
The DBA and DBRA require a contractor or subcontractor to maintain
records for a period of three years and submit weekly payrolls that provide a
worker’s name, the correct classification(s) of work actually performed, hourly rates
of wages paid, the daily and weekly number of hours actually worked in total and
on each contract, deductions made, actual wages paid, and other personal
information.44 Weekly submissions must include a statement of compliance that the
above information is provided, the appropriate information and records are being
maintained, each laborer has been paid the full weekly wages earned, and each
laborer has been paid for the “classification of work performed, as specified in the
applicable wage determination incorporated into the contract.”45
The ALJ found that Respondents failed to maintain accurate records because
Respondents’ records failed to indicate the precise amount of work each worker
performed in each classification.46 The ALJ acknowledged engineer Sean Estes’s
testimony that he worked with field supervisors and used field reports, daily logs,
ticket total sheets, and his general knowledge of the workers’ abilities to determine
each worker’s classification; however, the ALJ found that these documents did not
establish the precise amount of work each worker performed in each classification.47
After a thorough review of the record, we agree with the ALJ. Neither Estes’s
testimony nor any documents in the record indicate the time each worker actually
worked in each classification.48 Thus, we affirm the ALJ’s finding that Respondents
failed to maintain records, violating 29 C.F.R. § 5.5(a)(3).
B. Respondents Misclassified Workers
When, as here, an employer is alleged not to have paid employees for the
hours worked and has provided inadequate or no records, the Board applies a
43 Id.
44 29 C.F.R. § 5.5(a)(3)(i).
45 Id. at § 5.5(a)(3)(ii)(B).
46 D. & O. at 21.
47 Id.
48 See id.

7
burden-shifting framework.49 The WHD bears the initial burden of proving that
employees performed work on the DBRA project for which they were improperly
compensated.50 To satisfy its burden, the WHD must: (1) show that employees
performed work for which they were improperly compensated and (2) produce
“sufficient evidence to show that the amount and extent of that work as a matter of
just and reasonable inference.”51 Once the WHD has satisfied its burden, the burden
shifts to the employer to demonstrate either the precise number of hours worked or
to present evidence sufficient to negate “the reasonableness of the inference to be
drawn from the [WHD]’s evidence.”52 To satisfy its burden, the employer must
submit evidence that “(1) is based on individualized records[] and (2) fully accounts
for the work hours in question, consistent with the project as a whole.”53 If the
employer fails to carry this burden, employees may be awarded damages, even if the
amount of such damages is approximate.54
i. WHD Satisfied Its Burden that Employees Performed Work for Which
They Were Improperly Compensated
The ALJ found that Respondents misclassified skilled workers as laborers.55
The ALJ found that Respondents paid workers according to their perceived skills
based on testimony from Kent and Estes.56 The DBRA requires that workers be
paid according to the work performed, not their skill.57 Prior to April 2015,
Respondents paid one lead worker the skilled rate, while all other workers were
paid the laborer rate.58 Yet, the ALJ found that laborers performed skilled work by
operating machines, forklifts, and cranes.59 The ALJ also cited testimony from
engineers Estes and Arnold, and Philip Wilson, a construction company owner,
49 Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Coleman Constr. Co., ARB No. 2015-
0002, ALJ No. 2013-DBA-00004, slip op. at 11-13 (ARB June 8, 2016) (citing Anderson v.
Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)).
50 Id. at 11.
51 Id.
52 Id.
53 Id.
54 Id.
55 D. & O. at 14-15.
56 Id.
57 29 C.F.R. § 5.5(a)(1)(i).
58 D. & O. at 14. After the WHD conducted a worksite visit in April 2015, Respondents
changed the classification of many workers from laborer to higher skilled prevailing wage
determination rates. Id. at 15.
59 D. & O. at 14.

8
that a small bridge construction project takes more skilled workers than
Respondents’ records show.60 The ALJ also cited Masters’s observation that all
workers tied rebar, which is a skilled craft.61 The ALJ found that the most probative
circumstantial evidence of misclassification was Respondents’ pay records, which
demonstrated that Respondents adjusted classifications when a laborer performed a
task outside their skill rather than work performed and that Respondents changed
its default classification system for many workers from a laborer rate to a skilled
rate after Masters’s visit in April 2025.62 The ALJ determined that it was more
likely than not that Respondents incorrectly classified workers and paid them
according to their skill level rather than the tasks they performed.63 The ALJ then
concluded that the crew worked as a unit, where all workers (laborers and skilled)
generally worked on one task at a time depending on the stage of construction.64
Respondents contend the ALJ erred in finding they misclassified workers.65
Respondents argue the Administrator did not provide evidence that any worker
performed jobs other than as classified by Respondents.66 Respondents also contend
the ALJ’s finding that the crew worked as a unit is problematic because it is a novel
approach and testimony from Kent, Estes, Arnold, and Wilson contradicted it.67
Respondents assert that classifications must be based on area practices and contend
that because Oklahoma does not have statewide job descriptions for labor
classifications, Respondents had to rely on their experience in classifying
60 Id. at 15. Specifically, the ALJ found Arnold to be a comparatively neutral witness
and noted that he testified that approximately eighty percent of the workers on deck should
be classified as concrete finishers during a pour. Id.
61 Id. Ironworkers used plyers, measuring tapes, found rebar, determined where to
place rebar in the structure, took measurements, and tied the rebar in the bridge, whereas
laborers assisted ironworkers in carrying rebar and used wire and plyers at the direction of
the iron worker. Here, workers stated that they performed the same work as the skilled
classifications performed, including placing rebar. Id. at 16.
62 Id. at 15. Respondents had contended those workers attained a more advanced skill
set, but the ALJ did not credit this explanation. Id. We agree.
63 Id.
64 Id.
65 Resp. Br. at 14-15.
66 Id. at 15.
67 Id. at 15, 19-22. Respondents further contend that this approach is different than
Investigator Wiles’s approach. However, the Wiles investigation is not at issue here.

9
employees.68 Respondents further contend that Masters should have conducted an
area practice survey to determine proper classifications.69
We are not persuaded by Respondents’ arguments pertaining to classifying
employees. The ALJ’s finding that the crew worked as a unit did not create a novel
standard but rather was a characterization of how the crew worked. We conclude
that this was a reasonable inference based on the record and in light of
Respondents’ failure to maintain accurate records. The record shows that
Respondents adjusted classifications of skilled workers depending on the stage of
the job, and that general laborers performed skilled work with skilled workers.70
Although Respondents contend that testimony from Kent, Estes, Arnold, and
Wilson contradicted the ALJ’s findings that the crew worked as a unit, the ALJ
weighed their testimony and found that the more probative evidence was that after
the WHD conducted a worksite visit in April 2015, Respondents changed the
classification of many workers from laborer to skilled worker.71 Thus, we disagree
that Respondents were unaware of the descriptions for skilled workers, but rather
agree with the ALJ that the crew worked as a unit. In addition, we need not decide
whether Masters should have conducted an area practice survey to determine
proper classifications for various tasks because Respondents did not keep records
segregating work and the crew worked as a unit with both laborers and skilled
workers performing skilled work without regard to classifications.
Next, Respondents contend that testimony does not support the ALJ’s
conclusion that more skilled laborers were needed to complete the project.72
The record supports the ALJ’s findings. Two engineers testified that more skilled
workers would have been required to complete the bridge projects than what
Respondents’ records reflected.73 In addition, the record also supports the ALJ’s
findings that laborers operated power equipment.74
68 Id. at 16-17 (citing Fry Brothers Corp., WAB No. 1976-0006 (WAB June 14, 1997)
and Barco Enterprises, ARB No. 2013-0041, slip op. at 13 (ARB July 31, 2015)).
69 Id. at 16.
70 D. & O. at 15. For example, as the ALJ found, when laying concrete, the concrete
finisher was correctly paid as a skilled concrete worker while the rest of the crew
performing the same or similar work was paid as a laborer. Id.
71 Id.
72 Resp. Br. at 23-24.
73 D. & O. at 15.
74 Id. at 14. Specifically, Kent testified that workers operated Bidwell machines,
forklifts, and cranes, and workers Henry Barrios, Armando Flores, Jose Ramirez, and
David Rivera stated that they operated machinery such as the digger, a heavy-duty forklift,
and sky track, and were paid the same amount regardless of the type of work they
performed. Id.

10
Respondents also contend the ALJ erred in relying on Masters’s testimony
because her observations were limited and are inconsistent with the investigation
narrative.75 The record supports the ALJ’s finding that Masters observed all
workers tying rebar.76 In addition, while Masters’s observations were limited to the
dates she visited the worksites, this was, in part, due to Respondents’ own actions.
Masters had unsuccessfully attempted to meet Respondents on multiple occasions.77
When Masters met with Christie Glesener on May 21, 2015, Christie threatened to
call the police if Masters did not leave, despite Masters explaining why she was
there.78 Although Christie claimed it was for safety reasons, no other meetings took
place at a time when safety concerns could have been ameliorated.79 Accordingly, we
conclude that Respondents have not demonstrated that the ALJ erred in crediting
Masters’s testimony.
Further, the record supports the ALJ’s finding that Respondents violated the
DBRA by relying more on a worker’s skill level when determining classifications
and pay rather than by the tasks they performed.80 Specifically, Kent and Estes
testified that Respondents paid workers according to their perceived skills and
ability to read plans.81 Thus, we affirm the ALJ’s finding that workers performed
work for which they were improperly compensated.
ii. WHD Provided Sufficient Evidence to Show the Amount and Extent of
Work Performed that was not Properly Compensated
Next, we find that the Administrator produced sufficient evidence regarding
the amount and extent of work as a matter of just and reasonable inference.
The ALJ found that seventeen workers were owed $11,115.68 in back wages.82
For this determination, the ALJ accounted for when workers were paid more than
the prevailing wage determination and when fringe benefits credits should be
applied to determine which weeks resulted in an underpayment. Respondents
75 Resp. Br. at 17-18.
76 D. & O. at 15. The Board defers to an ALJ’s factual findings “predicated upon the
ALJ’s weighing and determining credibility of conflicting witness testimony.” Interstate
Rock Prods., Inc., ARB No. 2015-0024, ALJ No. 2013-DBA-0010, slip op. at 9 (ARB Sept. 27,
2016).
77 D. & O. at 5.
78 Id.
79 Id.
80 See id. at 14-15.
81 Id. at 14.
82 Id. at 17.

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contend the ALJ’s finding that the crew worked as a unit is problematic.83
We disagree for the reasons stated above. Thus, Respondents have not
demonstrated the ALJ erred. Rather, we conclude that the ALJ’s findings are
reasonable and supported by the record. Thus, we affirm that the Administrator
satisfied WHD’s burden.
iii. Respondents Failed to Carry Their Burden to Rebut the WHD’s
Reasonable Inference of a Misclassification of Workers and Wages
Owed
Because the Administrator met WHD’s burden, the burden shifts to
Respondents to demonstrate either the precise number of hours worked or present
evidence sufficient to negate the reasonableness of the inference drawn from the
WHD’s evidence. We agree with the ALJ that Respondents have not demonstrated
the precise number of hours worked because Respondents failed to maintain
accurate records of the hours workers worked in each classification.84 Respondents
have also not presented evidence to negate the reasonableness of the inference
drawn from the WHD’s evidence. Therefore, we conclude that Respondents failed to
carry their burden, and the workers are entitled to damages.
If the employer fails to carry their burden, workers may be awarded
damages, even if the amount of such damages is approximate.85 The ALJ found that
seventeen workers were owed $11,115.68 in back wages.86 The ALJ accounted for
when workers were paid more than the prevailing wage determination and when
fringe benefits credits should be applied to determine which weeks resulted in an
underpayment. Respondents had argued that the WHD wrongly used the
“carpenter” classification instead of the “form setter” classification when calculating
back wages, which resulted in a higher prevailing wage on two out of the three
contracts, and asserted that the use of the “carpenter” classification was a clerical
error in their software.87 However, the ALJ found that this argument was
unpersuasive because certified payroll records used both “form setter” and
“carpenter” at different times on the same projects.88 The ALJ also found that
Respondents changed their default classification on many workers from the laborer
rate to higher prevailing wage determination rates, which corroborated Masters’s
83 Resp. Br. at 15, 19-22. Respondents further contend that this approach is different
than Investigator Wiles’s approach. Again, the Wiles investigation is not at issue here.
84 See id. at 21.
85 Coleman Constr. Co., ARB No. 2015-0002, slip op. at 11.
86 D. & O. at 17.
87 Id.
88 Id.

12
calculations.89 The ALJ also noted that the documents Respondents provided
showed that the type of work the workers performed each week supported Masters’s
reconstructions.90 Thus, the ALJ found that the WHD’s reconstructions were
rationally based on Masters’s personal observations of the jobsites, information
from ODOT, certified payrolls, workers’ testimony, and interview statements, and
found them reasonable and equitable.91
Respondents contend the ALJ erred in finding that the WHD’s
reconstructions were reasonable and equitable.92 However, given the information
available and Respondents’ failure to maintain accurate records, we conclude that
the ALJ’s calculations were reasonable and equitable. The ALJ considered relevant
factors, including when workers were paid more than the prevailing wage
determination and when fringe benefits credits resulted in no underpayment, and
the ALJ’s findings are supported by the record. Accordingly, we affirm the ALJ’s
finding that Respondents owe seventeen workers $11,115.68 in back wages.
C. Weekly Payments
The DBRA requires that a contractor or subcontractor “pay all . . . laborers
employed directly on the site of the work, unconditionally and at least once a
week . . . [for] the full amounts accrued at the time of payment.”93
The ALJ found that Respondents failed to pay workers weekly and
manipulated the certified payroll records they submitted to ODOT to conceal this
practice.94 The ALJ also found that Respondents switched from weekly to biweekly
payments because it was easier for them, and that Christie Glesener directed
employees to white-out check numbers, dates, and the payment period.95
Respondents concede that they paid their workers biweekly until December
2014, when they resumed weekly payments.96 Respondents contend however, that
they did not conceal this practice and that, during the Wiles investigation, Wiles
89 Id.
90 Id.
91 Id.
92 Resp. Br. at 25-28.
93 40 U.S.C. § 3142(c)(1); see also 29 C.F.R. § 5.5(a)(1)(i).
94 D. & O. at 22.
95 Id.
96 Resp. Br. at 33.

13
said it was not a significant issue.97 Respondents further contend that they removed
personal information they believed ODOT did not need, and that this practice
continued into 2015, after they switched to a weekly payment schedule.98
After a thorough review of the record, we conclude the record supports the
ALJ’s factual and credibility findings. The ALJ relied on testimony from Jeannie
Kirk, one of Respondents’ former workers who testified that Christie directed her to
white-out certain information on the payroll records submitted to ODOT, and that
Christie told her that Respondents could run their business how they wanted to and
that biweekly payments were easier for Respondents.99 We are not persuaded that
Respondents whited-out information that ODOT did not need, because the record
shows that they did not white-out other personal information or information that
was not required. Rather, Respondents whited-out check dates and payment
periods, which concealed that workers were not being paid weekly as required.
Lastly, Respondents have not offered any evidence other than Kent and Christie’s
testimony that Wiles informed them that biweekly payments were not an issue.
Moreover, the regulations state that employers must pay workers “at least once a
week . . . [for] the full amounts accrued at the time of payment.”100 Thus, we affirm
the ALJ’s finding that Respondents failed to pay workers weekly, violating 29
C.F.R. § 5.5(a)(1)(i).
2. Respondents Owe Barnes Overtime Wages
The DBRA requires payment of prevailing wages to laborers and mechanics,
not “employees,” and thus “the lack of a traditional employee/employer relationship”
is not a defense to a contractor’s liability to pay prevailing wages and overtime.101
In addition, contracts must include the name of every laborer and mechanic on the
certified payrolls.102
The ALJ found that Ronald Barnes, an independent contractor, operated
equipment on all of Respondents’ construction projects as needed for a flat daily
rate of $250 regardless of how many hours he worked.103 The ALJ found that
Respondents did not have a DBRA-compliant subcontracting agreement with him
97 Id. at 33-35.
98 Id.
99 See D. & O. at 22.
100 40 U.S.C. § 3142(c)(1); see also 29 C.F.R. § 5.5(a)(1)(i).
101 Star Brite Constr. Co., Inc., ARB No. 1998-0113, ALJ No. 1997-DBA-00012, slip op.
at 7 (ARB Jun. 30, 2000).
102 29 C.F.R. § 5.5(a)(3).
103 D. & O. at 18-19.

14
and violated the DBRA by omitting him from the certified payroll records.104
The ALJ determined Respondents owed Barnes $2,942.40 in overtime back
wages.105 Since Respondents failed to keep records, the ALJ analyzed whether the
WHD’s reconstruction of back wages was reasonable and equitable.106 The ALJ
found that Masters’s testimony was not persuasive because she calculated Barnes’s
overtime based on a fifty-hour work week but was unable to support that figure.107
The ALJ also determined Masters’s calculation of $25 per hour was flawed because
Barnes was paid a daily flat rate.108 The ALJ noted that Barnes’s testimony and
witness statements contradicted each other regarding the number of hours he
worked.109 However, the ALJ found that this ambiguity was understandable given
the pay arrangement and found that Respondents could have resolved this with
proper recordkeeping.110 The ALJ also analyzed billing sheets and a spreadsheet
entitled “Barnes Contract Day History,” but found these documents had limited
probative value because they did not include how many hours Barnes worked and
there was no testimony to establish who created the documents, when they were
created, or whether they accurately reflected how many hours Barnes worked.111
The ALJ determined that Barnes worked an average of 42.5 hours per week because
he consistently stated that he worked 40-45 hours per week. Thus, the ALJ
determined that Respondents owed Barnes a total of $2,942.20 in overtime
wages.112
Respondents contend that Barnes’s testimony does not support the ALJ’s
finding.113 Respondents contend the ALJ should have credited Barnes’s testimony
that he could not remember working more than forty hours per week and worked to
“pass time.”114 Respondents further contend that billing sheets and the spreadsheet
“Barnes Contract Day History” demonstrate that he did not work overtime.115
104 Id.
105 Id. at 20.
106 Id. at 18.
107 Id. at 19.
108 Id.
109 Id.
110 Id.
111 Id.
112 Id. at 20.
113 Resp. Br. at 29.
114 Id. at 29-30.
115 Id. at 30.

15
We conclude that the Administrator satisfied WHD’s burden to demonstrate
that Barnes performed work for which he was improperly compensated. Although
Respondents assert that Barnes’s testimony was inconsistent, the ALJ considered
this and found that Barnes consistently stated that he worked 40-45 hours per
week.116 This is supported by the record, and we find that the ALJ’s calculation of
42.5 hours per week is a reasonable calculation. Thus, we affirm the ALJ’s finding
that Barnes worked 2.5 hours of overtime per week for which he was not
compensated.
Next, we find that Respondents neither demonstrated the precise number of
hours Barnes worked nor negated the reasonableness of the inference drawn from
the WHD’s evidence. Respondents rely on billing sheets and the “Barnes Contract
Day History” spreadsheet to demonstrate that Barnes did not work overtime.117
However, the ALJ correctly found that neither document establishes the precise
number of hours Barnes worked nor negates the reasonableness of the ALJ’s finding
that Barnes worked 2.5 hours of overtime per week. In addition, as the ALJ found,
there was no testimony that established who created the billing sheets, when they
were created, or whether they accurately reflected Barnes’s hours. Rather, Barnes
testified that he did not know if the billing sheets accurately reflected how much he
worked. Thus, the ALJ reasonably gave these documents limited weight. Therefore,
we find that Respondents failed to satisfy their burden.
Lastly, we find that the ALJ’s calculation of $2,942.40 in overtime back
wages owed to Barnes is reasonable and we affirm the ALJ’s award.
3. Debarment
Under the DBRA,118 whenever a contractor or subcontractor is found “to be in
aggravated or willful violation of the labor standards provisions of any of the
applicable statutes listed in Section 5.1” such contractor “shall be ineligible for a
period not to exceed 3 years . . . to receive any contracts or subcontracts subject” to
the Davis-Bacon or Related Acts.119 The Board has found that “the word ‘willful’ is
synonymous with such words as ‘voluntary,’ ‘deliberate,’ and ‘intentional” and is
“generally understood to refer to conduct that is not merely negligent.”120 A willful
116 See D. & O. at 20.
117 Resp. Br. at 30.
118 The parties do not dispute that the DBRA debarment standard applies. We note the
regulations have been amended after the version applicable to this case.
119 29 C.F.R. § 5.12(a)(1).
120 Coleman Constr. Co., ARB No. 2015-0002, slip op. at 17.

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violation also encompasses “intentional disregard, or plain indifference to the
statutory requirements.”121
The ALJ debarred Respondents for three years.122 The ALJ found that
Respondents committed gross negligence based on the Gleseners’ failure to
familiarize themselves with the correct classification method, Christie’s
disingenuously citing safety when threatening to call the police when the WHD
conducted a site visit, and improper attempts of witness coercion or intimidation.123
The ALJ found that Respondents’ initiative to start paying workers weekly in
December 2014 and classifying their workers correctly in April 2015 were positive
matters in extenuation and mitigation but were not relevant to the level of
noncompliance related to the multiple violations he found.124 Despite a preexisting
familiarity with the law, the ALJ found that Respondents refused to pay employees
weekly, altered payroll records, refused to cooperate with the investigation, engaged
in threatening behavior toward the WHD, and demonstrated a history of coaching
employees on what to say to an investigator.125
Respondents contend the ALJ erred in finding there was sufficient evidence
to support debarment.126 Specifically, Respondents contend their failure to pay
workers weekly should not be considered because Respondents disclosed this
practice and were under the impression that biweekly pay was not an issue.127
We conclude that Respondents’ failure to abide by the recordkeeping
requirements and failure to pay workers weekly constitute a willful violation.
As discussed above, Respondents previously paid workers weekly, and then moved
to a biweekly schedule because Christie claimed it was “easier” for them.128
This demonstrates that Respondents’ failure to pay workers weekly was a
voluntary, deliberate choice, and a departure from what the regulations required.
Moreover, Respondents were experienced contractors and had a significant history
of working on DBA and DBRA projects.
121 Id.
122 D. & O. at 24.
123 Id. at 23.
124 Id.
125 Id.
126 Resp. Br. at 31.
127 Id. at 33-34.
128 D. & O. at 22.

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Next, Respondents contend they did not falsify their certified payroll records
and were not trying to hide biweekly payroll from ODOT.129 The record supports the
ALJ’s findings that Respondents altered payroll by whiting-out the paycheck date
and the pay period dates, which concealed that Respondents did not pay workers
weekly as required.130 Next, Respondents contend that they were not concealing
this practice because they continued to white-out information after switching to a
weekly payment schedule.131 We are not persuaded by this argument because,
by that point, Respondents were aware that the WHD was investigating them.
Moreover, as the ALJ found, Respondents did not white-out other personal
information or information that was not required by ODOT.132
Respondents also contend the ALJ failed to consider the context of the WHD’s
investigations and how they impacted Respondents when the ALJ found that
Respondents did not cooperate with the investigation and threatened Masters.133
Respondents contend that any debarment order should be reduced for extraordinary
circumstances because the WHD conducted a targeted investigation against them
and failed to communicate properly with them, which resulted in confusion over
whether the investigation was closed.134
We are not persuaded by Respondents’ arguments. The ALJ considered the
circumstances and found that, while the WHD targeted them and Respondents were
initially confused, these matters were not relevant to the questions of whether
Respondents violated the DBA and DBRA.135 As the ALJ found, the WHD
investigators “are charged to enforce the law by finding and penalizing
noncompliant employers” and, absent any evidence of another motive, the WHD’s
actions showed only that they “believed Respondents to be noncompliant.”136
In addition, while Respondents may have initially been confused when Masters
began her investigation because they were accustomed to working with Wiles,
Masters sent several letters attempting to request records and meet with them to
no avail.137 After months of Respondents refusing to comply with the investigation,
Masters visited the worksite, only to have Christie threaten to call the police if she
129 Resp. Br. at 34-36.
130 See D. & O. at 22.
131 Resp. Br. at 34-36.
132 See D. & O. at 22.
133 Resp. Br. at 36-37.
134 Id. at 39.
135 D. & O. at 12.
136 Id.
137 Id. at 5.

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did not leave.138 Additionally, it was not until Respondents filed their request for a
hearing before the OALJ that Respondents submitted the records that the WHD
had requested.139 Thus, the record repeatedly shows that Respondents were hostile
and noncompliant with the WHD’s investigation. Respondents have not shown how
this situation would demonstrate an extraordinary circumstance relieving them of
debarment.140
Respondents further contend there is no credible evidence that Christie
Glesener improperly coached witnesses and challenges the credibility of Kirk’s
testimony.141 The ALJ determined that Kirk’s testimony was credible, and
Respondents have not pointed to anything that would demonstrate the ALJ erred.
Additionally, as the Administrator contends, there is a difference between telling an
employee to tell the truth and telling them what to say and what not to say.
Lastly, Respondents contend that the alleged violations in this case did not
demonstrate any intent to harm or underpay their workers.142 Additionally,
Respondents argue that the scope of the debarment order should be limited because
there is no evidence to support a finding of willful violations.143 However, the
debarment regulations do not require an intent to harm employees. Rather, as
discussed above, the Board has interpreted the word “willful” to be “synonymous
with such words as ‘voluntary,’ ‘deliberate,’ and ‘intentional” and is “generally
understood to refer to conduct that is not merely negligent.”144 A willful violation is
also an “intentional disregard, or plain indifference to the statutory
requirements.”145 We agree with the ALJ that Respondents’ failure to maintain
records and pay workers weekly was voluntary and deliberate. Thus, we affirm the
ALJ’s order that Respondents be debarred for three years.
138 Id.
139 Id.
140 See Coleman Constr. Co., ARB No. 2015-0002, slip op. at 18 (once an “aggravated or
willful” DBRA violation is found, “debarment should be for the full three years except in
‘extraordinary circumstances.””) (citations omitted).
141 Resp. Br. at 37-38.
142 Id. at 39.
143 Id. at 40-41.
144 Coleman Constr. Co., ARB No. 2015-0002, slip op. at 17.
145 Id.

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Accordingly, we AFFIRM the ALJ’s D. & O.
SO ORDERED.
RANDEL K. JOHNSON
Chief Administrative Appeals Judge
ELLIOT M. KAPLAN
Administrative Appeals Judge
THOMAS H. BURRELL
Administrative Appeals Judge