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Feb. 26, 2026 Get Citation Alerts Download PDF Add Note

STUCKEY v. APEX MATERIALS, LLC

Nevada Supreme Court

• Citations: 142 Nev. Adv. Op. No. 17

• Docket Number: 87775

• Opinion

• Authorities (25)

• Cited By (0)

• Summaries (0)

• Similar Cases (5.4K)

• PDF

Combined Opinion

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142 Nev., Advance Opinion [+

IN THE SUPREME COURT OF THE STATE OF NEVADA

LANCE D. STUCKEY, SR., AND
SALVADORE TORRES,
INDIVIDUALLY AND ON BEHALF OF
ALL OTHERS SIMILARLY SITUATED,
Appellants,

vs.

APEX MATERIALS, LLC; ELKHORN
ENVIRONMENTAL, LLC; WERDCO BC
INC.; WERDCO LLC; HARBER
COMPANY, INC.; TAB CONTRACTORS,
INC.; WILLIAM CHARLES
CONSTRUCTION COMPANY; BOYD
MARTIN CONSTRUCTION LLC; CG&B
ENTERPRISES, INC.; BALDWIN
DEVELOPMENT LLC, A DOMESTIC
LIMITED LIABILITY COMPANY;
TAND, INC.; AND HOLCIM (US) INC.,
D/B/A AGGREGATE INDUSTRIES,
Respondents.

prevailing-wage statute.

Jacob A. Reynolds, Judge.

No. 87775

FILED

FEB 26 2026

Eu A BR
su RT

é

BY DEPUTY CLERK

Appeal from a district court order granting a motion to dismiss

Affirmed.

a putative class action to collect the difference between the overtime wages
paid and the higher amount allegedly due under NRS 338.020, Nevada’s
Eighth Judicial District Court, Clark County;

Leon Greenberg Professional Corporation and Leon M. Greenberg and
Ruthann Devereaux-Gonzalez, Las Vegas,
for Appellants.

Vbe- 090%L

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Allison Law Firm Chtd. and Noah G. Allison, Las Vegas,
for Respondents Boyd Martin Construction LLC and CG&B Enterprises,
Ine.

Everett Dorey LLP and Jeremy E. Beal, Las Vegas; Butzel Long and Blaine
Veldhuis, Troy, Michigan,
for Respondent Holcim (US) Inc.

Champion Lovelock Law and Donna DiMaggio and Andrea M. Champion,
Las Vegas,
for Respondent TAB Contractors, Inc,

Hutchison & Steffen, PLLC, and Stewart C. Fitts and Ramez A. Ghally, Las
Vegas,
for Respondent Baldwin Development LLC.

Jackson Lewis, P.C., and Paul T. Trimmer, Las Vegas,
for Respondent William Charles Construction Company.

Littler Mendelson, P.C., and Andrew S. Clark, Montgomery Y. Paek, and
Emil S. Kim, Las Vegas; Michael D. Dissinger, Las Vegas,
for Respondents Apex Materials, LLC; Elkhorn Environmental, LLC;
Harber Company, Inc.; Werdco BC Inc.; and Werdco LLC.

McCullough & Associates, Ltd., and Christopher R. McCullough, Las Vegas,
for Respondent Tand, Inc.

Kemp & Kemp and James P. Kemp, Las Vegas,
for Amicus Curiae Nevada Justice Association.

Reese Ring Velto PLLC and Nathan R. Ring, Las Vegas,

for Amici Curiae International Brotherhood of Electrical Workers, Local
1245; International Brotherhood of Electrical Workers, Local 357;
International Brotherhood of Electrical Workers, Local 396; Northern
Nevada Building & Construction Trades Council; Northern Nevada Labor
Management Fund; Southern Nevada Building Trades Unions; Southern
Nevada Chapter of the National Electrical Contractors Association; and
Southern Nevada Labor Management Cooperation Committee.

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BEFORE THE SUPREME COURT, EN BANC.!

OPINION
By the Court, PICKERING, J.:

NRS Chapter 338 creates an administrative scheme for the
determination and enforcement of prevailing-wage and overtime pay
requirements on public works projects. Alleging that they performed
prevailing-wage work yet were not paid overtime at the prevailing-wage
rates specified in NRS 338.020(3), appellants sued respondent employers
and contractors in district court for the deficiency. The question presented
is whether employees may sue to enforce NRS 338.020(3) directly or must
instead work through the administrative remedies NRS Chapter 338
provides, with judicial review to follow, if appropriate. We hold that NRS
Chapter 338 does not afford a private right of action to employees outside
the administrative process 1t creates. Because appellants’ claims depend on
proving a violation of the prevailing-wage and/or overtime pay provisions in
NRS 338.020, they must first seek redress through NRS Chapter 338’s
administrative process. Nor can they circumvent that process by asserting
their claims under NRS Chapter 608’s more general wage-and-hour
provisions or as third-party beneficiaries, since the claims still depend on
an alleged but administratively undetermined entitlement to prevailing-
wage and/or overtime pay under NRS 338.020. The district court therefore

properly dismissed the complaint, and we affirm.

'The Honorable Patricia Lee, Justice, being disqualified, did not
participate in the decision of this matter.

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I.
Appellants Lance D. Stuckey and Salvadore Torres (collectively

Stuckey) filed a putative class action against a group of subcontractors (the
Apex Defendants) and general contractors (the Original Contractors),
respondents here. In his complaint, Stuckey alleged that the Apex
Defendants employed him and other similarly situated workers and that
some of their work was on public works projects. He further alleged that
they worked overtime—more than eight hours a day or 40 hours a week—
and that under NRS 338.020(3) they should have been but were not paid

one and one-half times the prevailing wage for the overtime hours worked.’

2NRS 338.020(3) provides as follows:

Except as otherwise provided in subsection 4, a
contractor or subcontractor shall pay to a mechanic
or worker employed by the contractor or
subcontractor on the public work not less than one
and one-half times the prevailing rate of wages
applicable to the class of the mechanic or worker for
each hour the mechanic or worker works on the
public work in excess of:

(a) Forty hours in any scheduled week of
work by the mechanic or worker for the contractor
or subcontractor, including, without limitation,
hours worked for the contractor or subcontractor on
work other than the public work: or

(b) Eight hours in any workday that the
mechanic or worker was employed by the contractor
or subcontractor, including, without limitation,
hours worked for the contractor or subcontractor on
work other than the public work, unless by mutual
agreement the mechanic or worker works a
scheduled 10 hours per day for 4 calendar days
within any scheduled week of work.

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As damages, the complaint sought the difference between the wages paid
and the higher prevailing-wage and/or overtime pay allegedly due under
NRS 338.020 for qualifying public works project work.

Stuckey’s complaint sought damages directly under NRS
338.020(3). In the alternative, it alleged Stuckey had the right to recover
the same damages under the more general wage-and-hour provisions of
NRS Chapter 608 or as a third-party beneficiary of the public works
contract(s) between the public body and the Original Contractors and/or
Apex Defendants. The complaint does not identify the public works
project(s) on which Stuckey and proposed class members allegedly worked.
Nor does it allege that they asked the Labor Commissioner or the
contracting public body to determine that their work qualified for
prevailing-wage pay and its rate or to recover and remit the deficiency
under the procedures provided in NRS Chapter 338.

The matter came before the district court on respondents’
NRCP 12(b)(5) motion to dismiss Stuckey’s first amended complaint.
Stuckey filed an opposition and countermotion to amend the complaint to
clarify that he sought damages for underpayment of prevailing wages for
both regular and overtime work. Citing Stuckey’s failure to allege
exhaustion of NRS Chapter 338’s administrative remedies, the court
eranted the motion to dismiss. It concluded that “wage claims under NRS
Chapter 338 are not enforceable through a private right of action” and that
the remaining claims likewise failed because they were “strictly derivative”
of the claim pleaded directly under NRS 338.020(3). It also denied Stuckey’s
countermotion for leave to amend as futile, because the proposed second
amended complaint did not cure the deficiencies in the original and first

amended complaints. Stuckey timely appealed.

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IT.

Stuckey maintains that the district court improperly dismissed
the complaint, contending that Nevada law, particularly Neville v. Eighth
Judicial District Court, 1383 Nev. 777, 406 P.3d 499 (2017), gives employees
who work on public works projects a private right of action to directly
enforce NRS 338.020’s prevailing-wage and overtime provisions separate
and apart from the administrative remedies NRS Chapter 338 creates.
Orders granting a motion to dismiss are reviewed de novo, as are questions
of statutory interpretation. Moon v. McDonald, Carano & Wilson LLP, 129
Nev. 547, 550, 306 P.3d 406, 408 (2013); Young v. Nev. Gaming Control Bad.,
186 Nev. 584, 586, 473 P.3d 1034, 1036 (2020). In deciding a motion to
dismiss under NRCP 12(b)(5), the court accepts the complaint’s factual
allegations as true and draws all inferences in the plaintiffs favor. Buzz
Stew, LLC v. City of North Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670,
672 (2008). An order denying a motion for leave to amend a pleading is
reviewed deferentially for an abuse of discretion. Kantor v. Kantor, 116
Nev. 886, 891, 8 P.3d 825, 828 (2000).

A.

NRS Chapter 338’s prevailing-wage law—known as the “Little
Davis-Bacon Act” after its federal counterpart, 40 U.S.C. § 3141—was
adopted to regulate state-funded public works. See State, Dep’t of Bus. &
Indus. v. Granite Constr. Co., 118 Nev. 83, 86, 40 P.3d 423, 426 (2002). The
Act recognizes that paying “prevailing wages” on public works projects is
essential to Nevada’s economic well-being and is important for increasing
the number of skilled construction workers in our state, enhancing the
workforce, and increasing redevelopment opportunities. NRS 338.01155(1).
By its terms, the Act requires a contractor to whom a public works contract

is awarded by a government body, and any subcontractor, to pay all workers

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employed in the execution of the contract not less than the prevailing wage
in that region as established by the Nevada Labor Commissioner for each
craft or type of work, NRS 338.030(1); see NRS 338.025, as well as time-and-
a-half overtime at prevailing-wage rates, NRS 338.020(3). See Granite
Constr. Co., 118 Nev. at 86, 40 P.3d at 426.

NRS Chapter 338 makes extensive provision for the Labor
Commissioner and the contracting public body to establish and enforce its
prevailing-wage and overtime pay requirements. See, e.g., NRS 338.030;
NRS 338.035; NRS 338.040; NRS 338.060; NRS 338.070; NRS 338.090.
However, it does not expressly provide a private right of action in favor of
employees. Our caselaw holds that “the absence of an express provision
providing for a private cause of action to enforce a statutory right strongly
suggests that the Legislature did not intend to create a_ privately
enforceable judicial remedy.” Baldonado v. Wynn Las Vegas, 124 Nev. 951,
959, 194 P.3d 96, 101 (2008). The question comes down to legislative intent.
Neville, 133 Nev. at 781, 406 P.3d at 503. “Without legislative intent to
create a private judicial remedy, ‘a cause of action does not exist and courts
may not create one, no matter how desirable that might be as a policy
matter, or how compatible with the statute.” Jd. (quoting Baldonado, 124
Nev. at 959, 194 P.3d at 101, and Alexander v. Sandoval, 532 U.S. 275, 286-
87 (2001)). A private right of action cannot be “implied” from a statutory
right, in other words, “unless the implication both is clear and is based on
the text of the statute—not exclusively its purpose.” Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 317
(2012).

NRS Chapter 338’s statutory scheme provides a specific and

detailed administrative mechanism for addressing unpaid prevailing-wage

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and overtime claims. An aggrieved worker must file a complaint with the
Labor Commissioner alleging a violation of the prevailing-wage
requirements, which the purported violator must then answer. See NAC
338.107(1); NAC 338.108(1); see also NRS 338.012 (authorizing the Labor
Commissioner to adopt regulations to implement the statutory scheme). If
the Labor Commissioner determines that further investigation is
warranted, he or she will investigate or order an investigation. See NAC
338.108(8). The public body that awarded the contract must then determine
whether the contractor has committed a violation and inform the Labor
Commissioner accordingly, NRS 338.070(1)(a), after which the contractor is
afforded a hearing before the Labor Commissioner, NRS 338.090(2)(a).

At the hearing, the Labor Commissioner determines whether
the work qualified for prevailing wages and, if so, the applicable
classification and the underpayment, if any, that occurred. See Bombardier
Transp. (Holdings), USA, Inc. v. Nev. Labor Comm’r, 135 Nev. 15, 19, 433
P.3d 248, 253 (2019) (applying NRS 338.010(15)); City Plan Dev., Inc. v. Off.
of the Lab. Comm’r, 121 Nev. 419, 432, 117 P.3d 182, 190 (2005). If the
Labor Commissioner finds that prevailing wages were owed but not paid,
the violator is assessed “an amount equal to the difference between the
prevailing wages required to be paid, and the wages that the contractor or
subcontractor actually paid” and any fringe benefits due. NRS 338.090(2)(a)
& (b); see NRS 338.035(4)(c). A contractor who violates the wage provisions
forfeits to the public body the amounts set by NRS 338.060. The Labor
Commissioner may order the public body to withhold those amounts from
any payment due the contractor and pay those amounts to the Labor
Commissioner, after which the Labor Commissioner may pay those

amounts to the worker if the matter is resolved in their favor. NRS

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338.515(7). The Labor Commissioner may also impose an administrative
penalty, NRS 338.090(2)(c), debar the contractor or subcontractor from
future public works contracts, NRS 338.017, and direct disbursement of any
amounts the public body withholds, NAC 338.112(1)(c).

This comprehensive scheme weighs against implying a private
right of action separate and apart from NRS Chapter 338’s administrative
processes. That chapter's detailed provisions empower the Labor
Commissioner to decide if prevailing wages are due and their amount, to
adjudicate violations, to impose penalties on the contractors and
subcontractors, and to withhold or assess the sums needed to make
shortchanged workers whole. Further, it places enforcement responsibility
squarely on the Labor Commissioner. NRS 338.015(1) (The Labor
Commissioner shall enforce the provisions of NRS 338.010 to 338.130,
inclusive.”). There would be little need for this mandate and the detailed
administrative process if the worker could bring an action in district court
in the first instance to invoke and enforce the prevailing-wage and overtime
provisions. To judicially add an impled private right of action would
undermine the comprehensive administrative scheme NRS Chapter 338
establishes for the efficient and uniform enforcement of Nevada’s
prevailing-wage statutes. Cf. Peltier v. Almar Mgmt., Inc., 229 F. Supp. 3d
1160, 1168 (D. Haw. 2017) (“Courts have generally found that implying a
private right of action in a statute that is part of an administrative scheme
would undercut legislative goals... .”).

Federal courts have reached this same conclusion in regard to
the Davis-Bacon Act (DBA), on which NRS Chapter 338 was modeled. See
Grochowski v. Phoenix Constr., 318 F.3d 80, 85 (2d Cir. 2003) (stating that

¢

“the great weight of authority indicates” that the DBA does not confer “a

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private right of action on an aggrieved employee for back wages”); see
Hartford Fire Ins. Co. v. Tr. of Constr. Indus., 125 Nev. 149, 155, 208 P.3d
884, 888 (2009) (explaining that where a Nevada statute is modeled after
federal law, federal caselaw interpreting that law is persuasive). Had the
legislature meant to create a private right of action for employees in
Stuckey’s position, it would have said so. Cf. NRS 338.016 (providing a
private right of action for bidders on public works projects). But it did not,
and it would be inappropriate to imply one here. See Scalia & Garner,
Reading Law, supra, at 93 (‘Nothing is to be added to what the text states
or reasonably implies.”).

Neville does not alter this analysis. Neville considered whether
a private right of action exists to recover unpaid wages under the general
wage-and-hour provisions in NRS Chapter 608. 133 Nev. at 778, 406 P.3d
at 500-01. The question in that matter was whether NRS 608.140, which
allows a plaintiff to obtain attorney fees in an unpaid wages action, also
allows a private cause of action to recover the wages. Id. at 781-82, 406 P.3d
at 502-03. Although NRS Chapter 608 was silent on a private right of action
to enforce its payment provisions, Neville inferred the private right of action
from NRS 608.140’s express allowance of attorney fees—if there was no
private right of action, then why make express provision for an individual
to recover attorney fees? Jd. at 781-83, 406 P.3d at 503-04; see Scalia &
Garner, supra, at 316 (stating that it would be appropriate to imply a
private right of action where a statute, though silent as to a private right of
action, expressly provided that “[iJn any private suit for violation of this
statute, the victorious plaintiff will be entitled to attorney’s fees”). But
Neville’s analysis turned on the express attorney fee provision in NRS

Chapter 608. It does not support implying a private right of action for sums

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statutorily due under NRS Chapter 338’s public works project provisions,
which contain no similar language suggesting that the legislature intended
to create a private right of action for underpayment of prevailing-wage sums
due under that chapter.

A worker seeking to recover underpaid wages based on a
statutory violation of NRS Chapter 338’s prevailing-wage and overtime
rates must do so through the administrative scheme. See, e.g., United
States ex rel. Krol v. Arch Ins. Co., 46 F. Supp. 3d 347, 350-55 (S.D.NLY.
2014) (concluding laborers may bring an action only if there is an
administrative finding of a prevailing-wage violation and the government-
withheld payments are insufficient to make the laborer whole). This
ensures that the worker has grounds to assert the claim, eliminates the risk
of inconsistent rulings by the Labor Commissioner and the courts about
whether the work is governed by the prevailing-wage statutes and a
violation has occurred, and facilitates the efficient enforcement of
prevailing-wage laws. Id. at 354-55; see also Int'l Bhd. of Elec. Workers Loc.
113 v. T & A Servs., 8 F.4th 950, 957 (10th Cir. 2021) (discussing the DBA
and noting that, “[o]verall, this ‘elaborate administrative scheme’ is meant
to provide ‘consistency’ and ‘uniformity’ in ‘the administration and
enforcement of the [DBA],’ and ‘balances the interests of contractors and
their employees.”) (quoting Unius. Rsch. Ass’n v. Coutu, 450 U.S. 754, 782-
83 (1981)).

B.

Stuckey contends that even if NRS Chapter 338 does not give
him and the proposed class a private right of action to enforce NRS 338.020
directly, they should have been allowed to proceed with the alternative
claims they asserted against the Apex Defendants and Original Contractors

under NRS 608.135 and NRS 608.150. NRS 608.135 provides that an

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employee may bring a civil action against an employer who “fails to pay
wages, compensation or salary to an employee in accordance with the
requirements set forth in NRS 608.020 to 608.050, inclusive,” and directs
the Labor Commissioner to “not take jurisdiction of a claim” for such wages
while a civil suit to recover them is pending. NRS 608.150 makes an
original contractor liable for a subcontractor’s indebtedness to an employee
for work performed on the contract. In addition, the complaint asserts a
claim under NRS 608.040 and NRS 608.050, which impose penalties on an
employer who does not timely pay the wages due on separation or
termination.

Stuckey’s claims are all founded on the allegation that the Apex
Defendants and Original Contractors violated NRS 338.020 by not paying
prevailing wages and overtime at the rates mandated by NRS Chapter 338.
But NRS Chapter 608 does not create liability for failure to pay prevailing
wages or overtime calculated under NRS 338.020(3). Unlike NRS
338.010(26)({a), which defines “wages” to mean the “basic hourly rate of pay,”
NRS 608.012 defines “wages” in contract terms, as “[t]he amount which an
employer agrees to pay an employee for the time the employee has worked.”
And while NRS 608,018 requires overtime on “wages” as defined in NRS
608.012. that provision excludes hours to which the overtime provisions of
NRS 338.020(3) and (4) apply. NRS 608.018(3)(n). Finally, NRS 608.135’s
provision that the Labor Commissioner shall not take jurisdiction of any
dispute that is the subject of the civil action it authorizes to enforce NRS
608.020 through 608.050 cannot be reconciled with the comprehensive
administrative scheme NRS Chapter 338 establishes to enforce prevailing-

wage and overtime rights under NRS 338.020.

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Where a general statute and a specific statute cover the same
subject, the specific statute controls. See Saticoy Bay LLC Series 3580 Lost
Hills v. Foreclosure Recovery Servs., LLC, 140 Nev., Adv. Op. 75, 559 P.3d
856, 861 (2024); In re Resort at Summerlin Litig., 122 Nev. 177, 185, 127
P.3d 1076, 1081 (2006). The claims asserted under NRS Chapter 608 in this
case all depend on establishing a violation of NRS 338.020. NRS Chapter
338 provides the procedures for establishing such a violation, which Stuckey
does not allege were pursued or not applicable because unavailing. Cf.
State, Dep't of Health & Hum. Servs. v. Samantha Inc., 133 Nev. 809, 812,
407 P.3d 327, 329 (2017) (addressing the availability of equitable remedies
in administrative cases and recognizing that other remedies “may be
available in the discretion of the court and only when legal remedies .. . are
not available or are inadequate”) (citation modified). It would be
inconsistent with NRS Chapter 338 to allow the claim for underpaid
prevailing wages and overtime to proceed under NRS 608.135 or NRS
608.150, given Stuckey’s and the proposed class members’ failure to
establish the violation of NRS 338.020 on which their claims depend. See
Krol, 46 F. Supp. 3d at 352-53 (dismissing a claim premised on an alleged
DBA violation that had not been established through pursuit of the
administrative remedies provided by the Act). We therefore affirm the
district court’s dismissal of the claims asserted under NRS Chapter 608 in

this case.3

C.
Stuckey next asserts that the district court erred in dismissing

his claim to relief as a third-party beneficiary of the public works contracts

°To the extent Stuckey argues NRS 608.040 and NRS 608.050 also
provide separate private rights of action, those arguments fail for the
reasons stated in the text.

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on which he and the proposed class members worked. The complaint does
not attach the contracts but alleges that they required payment of
prevailing-wage and overtime pay under NRS 338.020. Stuckey argues that
virtually every other state allows workers to bring third-party beneficiary
claims to enforce prevailing-wage statutes. The respondents contend that
a third-party beneficiary claim is incompatible with the statutory scheme
because the claim depends on statutory obligations for which no private
right of action exists.

Stuckey notes that courts in other jurisdictions have held that
workers may be able to sustain third-party beneficiary claims in similar
circumstances. But material factual or legal differences exist between the
out-of-state cases Stuckey cites and this one. Some cases discuss the
availability of administrative remedies and the importance of first
exhausting these remedies where available. E.g., Favel v. Am. Renovation
& Constr. Co., 59 P.3d 412, 427 (Mont. 2002). Others do not involve issues
directly analogous to the one here. E.g., Ind. State Bldg. & Constr. Trades
Council v. Warsaw Cmty. Sch. Corp., 493 N.K.2d 800, 805 (Ind. Ct. App.
1986) (discussing the issue in dicta only); State ex rel. Evans v. Brown
Builders Elec. Co., 254 5.W.3d 31, 37 (Mo. 2008) (addressing recovery of
prejudgment interest); Bryson uv. Cent. Elec. Co., 402 So. 2d 922, 925 (Ala.
1981) (addressing vested rights after repeal of statute). And yet another
was reversed by a decision deeming the agreed-upon administrative
determination binding and preclusive of the employee's private suit for
damages. See Austin Bridge Co. v. Teague, 152 S.W.2d 1091, 1093 (Tex.
1941) (reversing the court of appeals decision Stuckey cites, 149 S.W.2d 674,
because the State Highway Engineer denied the claim and the public works

contract made the denial binding on the parties). Stuckey’s cited authority,

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in sum, is either unhelpful or serves to highlight material differences in
Nevada’s statutory scheme.

Given NRS Chapter 338’s structure and its express
administrative procedure, we find the Second Circuit’s reasoning in
Grochowski, 318 F.3d. at 84-85, persuasive. There, the court addressed
whether a worker could assert a third-party beneficiary claim to enforce the
prevailing-wage provisions of the DBA. Jd. at 85. The court rejected the
plaintiffs’ claims as “indirect attempts at privately enforcing the prevailing
wage schedules contained in the DBA.” Td. at 86. It concluded that allowing
a third-party private contract action to enforce the prevailing-wage
provisions “would be ‘inconsistent with the underlying purpose of the
legislative scheme and would interfere with the implementation of that
scheme to the same extent as would a cause of action directly under the
statute.” Id. (quoting Davis v. United Air Lines, Inc., 575 F. Supp. 677, 680
(E.D.N.Y. 1983)). The court characterized the plaintiffs’ efforts to bring a
third-party beneficiary claim as “clearly an impermissible end run around”
the prevailing-wage statutes. Jd. (internal quotation marks omitted). The
United States Supreme Court has cited Grochowski’s reasoning with
approval. Astra USA, Inc. v. Santa Clara County, 563 U.S. 110, 118 (2011)
(prohibiting a third-party beneficiary claim based on a contract that
incorporates statutory provisions that do not afford a private right of
action).

The Nevada Legislature has provided an administrative
process for recovering prevailing wages and overtime on public works
projects. It opted not to create a private right of action independent of that
process. It would be inconsistent with the legislative scheme to permit

enforcement of those statutory rights through third-party beneficiary

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claims. See Peltier, 229 F. Supp. 3d at 1169 (explaining “courts will not
allow a third-party breach of contract claim where the statutory and
contractual obligations... are one and the same’) (citation modified); Donis
v. Am. Waste Servs., LLC, 125 N.E.3d 759, 773 (Mass. App. Ct. 2019)
(explaining that its state legislature created a specific remedy and did not
intend plaintiffs to be able to circumvent this by asserting third-party
beneficiary claims), aff'd in part, rev'd in part on other grounds, 485 Mass.
257 (2020). Like the NRS Chapter 608 claims, Stuckey’s third-party
beneficiary claim simply seeks to enforce NRS Chapter 338’s prevailing-
wage requirements. But “plaintiffs cannot get around the administrative
prerequisites of the Act simply by dressing up their claim in new language
and asserting that it arises under [other] law.” Johnson v. Prospect
Waterproofing Co., 813 F. Supp. 2d 4, 9 (D.C. Cir. 2001). We therefore
affirm the dismissal of the third-party beneficiary claim.

D.
Last, Stuckey contends that the district court abused its

discretion when it denied leave to file a second amended complaint. Denial
of leave to amend is appropriate where amendment would be futile, Allum
v. Valley Bank of Nev., 109 Nev. 280, 287, 849 P.2d 297, 302 (1993), or seeks
to plead an impermissible or meritless claim, Nutton v. Sunset Station, Inc.,
131 Nev. 279, 289, 357 P.3d 966, 973 (Ct. App. 2015) (citing Soebbing v.
Carpet Barn, Inc., 109 Nev. 78, 84, 847 P.2d 731, 736 (1993)). The proposed
amendment left the claims materially unchanged and so would have been

futile. The district court did not abuse its discretion when it so held.

ITI.
NRS Chapter 338 does not provide workers a private right of
action against employers who violate NRS 338.020’s prevailing-wage and

overtime pay requirements. It vests enforcement responsibility with the

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Labor Commissioner and the contracting public body. Since the claims
alleged in this case all seek damages for violation of NRS 338.020’s
statutory prevailing-wage and overtime pay requirements, those claims
needed to be presented to the Labor Commissioner in the first instance.
Because they were not, the claims were properly dismissed. We therefore

affirm.

r

Pickering )
We concur:
—— C.J.
Herndo
Parraguirre we
Bell (C/V~
Stiglich
Cadish

17