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If you’ve driven to a Washington Nationals game this season, it’s a good bet that the Impark employees who took your money at the parking lot were illegally underpaid. Also the woman in the yellow Contemporary Services Corp. (CSC) Event Services jacket who searched your bag, and likewise the CSC guy who showed you to your seat and the American Protection Service security guards who broke up that fight you saw in the late innings. The Designmark and Superior Cleaning Service janitors who cleaned up your peanut shells and soda cups after you left got shorted, too.

All these people should be earning a “prevailing wage,” according to the McNamara-O’Hara Service Contract Act (SCA), a 1965 federal wage law. The act currently requires that employees of government contractors and subcontractors receive wages and benefits usually totaling between $11 and $13 an hour, but several hundred stadium employees are getting less—as much as $5 below that legally mandated minimum.

On Monday, June 6, representatives of the U.S. Department of Labor advised D.C. Sports and Entertainment Commission General Counsel Claude Bailey that a wide variety of services provided at RFK Stadium must be in compliance with the SCA. The first wage problems at the stadium came to light in early May, when the Sports Commission learned that its primary janitorial contractor, Knight Facilities Management, had been using near-minimum-wage day labor to clean RFK after games (“Working for Peanuts,” 5/6). The commission initially asserted that the underpayment of stadium janitors had occurred for only a few weeks at the start of the baseball season. But Bailey now concedes that violations of the SCA have occurred at stadium events for years.

The underpayments easily exceed $100,000 this baseball season alone, and Bailey says the commission is committed to paying the stadium employees who have been shortchanged. But though the commission warned Knight to boost wages five weeks ago, Knight subcontractors Superior Services and Designmark continue to pay many of their employees at the ballpark far less than the legal minimum. The two companies, which hold D.C.-government janitorial contracts worth a combined $17 million, appear to be underpaying employees in other public buildings, as well.

Instead of launching a formal investigation, the Department of Labor has issued a statement declaring its intention to “work with the Commission to ensure appropriate application of the [prevailing-wage] statute.” But Bailey has already stated that it is the commission’s legal and moral obligation to make good on paying the federally mandated wages. “We’re going to have an ongoing dialogue [with the Department of Labor] about compliance,” he says. “I think it’s important that we comply because we’re talking about people who are at the bottom of the economic totem pole.”

The commission will likely pay back wages to cover the time since the beginning of the season, Bailey says, and will work with the Labor Department to decide whether a retroactive pay hike would extend even further back.

That the commission staffed D.C’s largest public venue in violation of federal labor law for years was, according to its top legal official, an accident. “There was no attempt to circumvent the law,” Bailey says. “The people [on the commission] just didn’t know about it.”

At no other stadium in the country would service jobs fall under the SCA, says Terry Yellig, a D.C. labor attorney who was one of the first to assert that the Sports Commission was required to pay prevailing wages. “If [baseball] had moved to Oregon or Las Vegas or Newport News, this wouldn’t be an issue,” he says. The law applies to D.C. because of the federal government’s purview over District affairs.

Error by the Sports Commission explains only some of the problems at RFK, however. The three-month, $785,000 janitorial contract signed by Knight explicitly requires the company to ensure that its subcontractors pay the prevailing wage for janitorial work: $10.12 an hour and a $2.59 hourly health-and-welfare benefit. Even if Knight was initially confused by this requirement, Bailey says the commission explicitly reminded the management firm of its obligation to raise wages after its day-labor problem last month.

Because some of the money in Knight’s contract was supposed to cover prevailing wages for the stadium’s janitorial crews, what Knight did with that money “is a legitimate question,” Bailey says. “I just don’t know the answer to it right now.”

Bailey plans to meet with representatives from Knight in the next few days to discuss where the money went; Knight officials have declined to return phone calls seeking comment for well over two weeks.

One of Knight’s subcontractors, Superior Services, is at odds with its employees as to whether it pays the legally mandated prevailing wage. “We’re a very honest company,” says Superior’s president, Delores Flowers. “Those that are working for me make $10.12 an hour plus a $2.59 health-and-welfare benefit.”

Five separate RFK janitors wearing Superior’s blue aprons at various Washington Nationals games have disputed that claim over the past several weeks. “They said before we started working that they were going to pay us $10 an hour,” one worker said. “When we got there, it was $9.” Superior’s workforce at RFK is almost uniformly Latino, and most workers speak only Spanish. Two janitors stated that they had been paid irregularly and that many employees are paid in cash. Additionally, one said, working conditions at the stadium have been poor. “We used to have no breaks at all,” he said. “Only two days ago [June 4], we started to have breaks. And water.”

Asked why employees might tell a reporter that they earned only $9 an hour, Flowers questions whether the complainants were even Superior employees. “I don’t know who you were talking to,” she says. “There are a lot of other contractors [working at the stadium].”

According to Bailey and Diana Johnson, spokesperson for the D.C. Department of Employment Services (DOES), Superior’s contract is now the focus of a joint inquiry by the Sports Commission and the DOES. “I’ve asked to see documentation [of their wages],” says Bailey. “If we discover there have been irregularities with the payment of these wages, they will be referred to the appropriate authorities….If [contractors] were intentionally misrepresenting what they were paying and were pocketing the difference, in my mind, that would qualify as fraud.”

Questions about Superior’s adherence to labor laws extend beyond its work at the ballpark. In addition to the sum it receives from Knight for cleaning up at RFK, Superior holds the D.C. government’s largest janitorial contract, a multiyear, $9.7 million deal to clean public buildings, medical facilities, and police stations.

A copy of the contract obtained from the Office of Contracts and Procurement clearly states that all employees working under the agreement must be paid prevailing wages. Yet three Superior Services janitors contacted last week, all of whom work in public buildings, said they were not. One employee, who said she had worked for Superior for three years, produced pay stubs showing that she made only $8 an hour. For her first two years, she said, she had been paid $7 an hour, which she said is the normal starting wage for Superior staff working in public buildings. She also reported that she had not received a single day of vacation in her three years working for the company—another potential violation of the SCA. A Superior employee working in a different facility seconded that complaint.

Designmark, RFK’s other main janitorial subcontractor, admitted last Friday that it does not always pay its employees the prevailing wage. Designmark employees earn the most money of any janitors at RFK stadium—still $2.71 an hour less than the legal minimum.

Patrick McRae, Designmark’s president, says that all of his employees at the stadium should have started getting $12.71 per hour early last month, but technical problems may have hampered his company’s efforts to boost pay. “See, the problem we’ve had is some individuals have worked with us in another capacity,” he says. “Our computer system has problems with the same employee working at different rates.” McRae adds that he is “almost certain” that this issue is now resolved. On Sunday, three of his employees at RFK reported they were still being paid $10 an hour and had never received the required $2.59 health-and-welfare benefit. None had heard anything about a raise from Designmark’s management. Added one employee: “I guess word didn’t get around.”

Like Superior, Designmark is one of the District’s largest public janitorial contractors, holding a $7.3 million deal with the city. McRae concedes that many of his employees working under that contract do not receive the prevailing wage for their work, either. “You will find some people in my company who don’t make $12 an hour working in a government building,” McRae admits, though he insists that he is working with the District to raise their wages. “For whatever reason, though, we didn’t get it done this year.”

McRae would prefer to boost wages on his own, he says, but he fears he can’t do so and still remain in business. “Unlike a lot of industries, the janitorial industry is very labor-driven, and because of the influx of immigrants, some companies will scoop those people up and take advantage of them.”

Underpaying their employees allows his competitors to make rock-bottom bids for public contracts, McRae says, and so in order to compete he made a “strategic decision” to also bid low. “Because of an environment of low bidding in the District, I didn’t bid an increase in wages every year that would fall to my bottom line,” he says. “You have to have a real sharp pencil, for lack of a better word.”

A public-contracting environment that tolerates strategic underbidding—and strategic underpaying of one’s employees—ultimately costs taxpayers money, believes Kerry O’Brien, a lawyer for the D.C. Employment Justice Center. “This absolutely disadvantages decent employers who comply with the law and believe it’s important to provide health benefits for their workers,” O’Brien says. “This is theft from the workers and the taxpayers of the District of Columbia. There’s no other way to say it.”

Such practices are tolerated, O’Brien believes, because of two obstacles to enforcement. Low-wage workers are the least likely to know the law and complain, making it easy for contractors to welsh on the prevailing wage. (According to the DOES’s Diana Johnson, not one of Superior’s employees has ever registered a formal complaint with her agency.) And individuals lack the right to sue their employer under the SCA; only the D.C. government and the Department of Labor are in a position to challenge employers over prevailing-wage problems.

That needn’t be a weakness in itself. DOES Director Greg Irish says his department has responded to wage complaints in the past and that contractors in violation of the SCA are liable for back pay. “If it’s under the aegis of federal law, we’ll go after them,” he says. “Because anything like that makes a mockery of the law. Those are wages people earned, not a gift.”

But agencies within District government can’t seem to agree even as to which of them is ultimately responsible for monitoring contracts under which the violations might occur. According to Irish, the responsibility for ensuring that a janitorial company lives up to its contract falls jointly to the Office of Contracts and Procurement and the Office of Property Management. Likewise, a statement issued by the Department of Labor asserts that it is the contracting agencies’ responsibility to “monitor the SCA contracts to ensure that the prevailing wage rates…are properly paid to the appropriate job classifications.”

But in response to questions about the possible underpayment of Superior’s employees, Janis Bolt of the District’s Office of Contracts and Procurement states that it is not her agency’s responsibility to police the pay scales of city contractors after a contract has been signed. Similarly, the director of the Office of Property Management, Carol Mitten, states that her agency’s role is to provide technical expertise and verify that contractors “deliver the service. We don’t get into the ins and outs of how much they’re paid.”

The Department of Labor still has the final say on enforcing SCA contracts, but according to At-Large Councilmember David Catania, the District is still shirking its responsibility. “There’s no one person held responsible to make sure that this law is enforced,” he says. “We’ve never been very strong in enforcing our laws, especially when it wasn’t convenient.”

Last November, Catania attempted to amend the stadium-financing bill to mandate that all workers at the stadium receive a living wage. His proposal was defeated 7-6. So, Catania says, finding that many stadium employees were already entitled to more money was “a real boon.”

Without any city agency committed to policing their pay scale, however, janitors in D.C.’s public buildings may not have the same luck. Informed that she was underpaid by over fifty percent, one Superior employee said she could use the money. She helps support her family across the river in Virginia and has only been in the United States for a few years. “Do you actually think they’ll pay us more?” she asks.CP

Art accompanying story in the printed newspaper is not available in this archive: Illustration by Gus D’Angelo.