Bill Text: CA AB2182 | 2023-2024 | Regular Session | Amended
Bill Title: Public works.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed) 2024-05-22 - In Senate. Read first time. To Com. on RLS. for assignment. [AB2182 Detail]
Download: California-2023-AB2182-Amended.html
|
Amended
IN
Assembly
March 18, 2024 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Assembly Bill
No. 2182
| Introduced by Assembly Member Haney |
February 07, 2024 |
An act to amend Sections 1742 and 1773.1 of, to amend, repeal, and add Section 1773.6 of, and to add Sections 1771.2.1 and 1776.2 to, the Labor Code, relating to public works.
LEGISLATIVE COUNSEL'S DIGEST
AB 2182, as amended, Haney.
Public works: prevailing wages. Public works.
Existing law requires that, except as specified, not less than the general prevailing rate of per diem wages, determined by the Director of Industrial Relations, be paid to workers employed on public works projects. Existing law requires the body awarding a contract for a public work to obtain from the director the general prevailing rate of per diem wages for work of a similar character in the locality in which the public work is to be performed, and the general prevailing rate of per diem wages for holiday and overtime work, for each craft, classification, or type of worker needed to execute the contract. Under existing law, if the director determines during any quarterly period that there has been a change in any prevailing rate of per diem wages in a locality, the director is required to make that change available to the awarding body and their determination is final. Under
existing law, that determination does not apply to public works contracts for which the notice to bidders has been published.
This bill would state the intent of the Legislature to enact statutory changes relating to public works.
This bill would instead require the director, if the director determines during any semiannual period that there has been a change in any prevailing rate of per diem wages in a locality, to make that change available to the awarding body and that decision would have exceptions to its finality, including authorizing a contractor, awarding body, or representative to file a petition to review the director’s determination. The bill would provide that the director’s determination would apply
to any public works contract awarded or for which notice to bidders is published, after July 1, 2025.
Under existing law, per diem wages include certain employer payments made pursuant to a collective bargaining agreement or for a program or committee established under the federal Labor Management Cooperation Act of 1978, as specified. Existing law provides that these payments are a credit against the obligation to pay the general prevailing rate of per diem wages.
Existing law requires the credit for employer payments to be computed on an annualized basis where the employer seeks credit for employer payments that are higher for public works projects than for private construction performed by the same employer, except under certain circumstances, including a determination that annualization would not serve the purposes of the provision relating to public works projects.
This bill
would remove the exception permitting the director to determine that annualization would not serve the purpose and would instead require, subject to a specified exception, all other fringe benefits to be computed on an annualized basis. The bill would require employers to demonstrate that the credit for employer benefits was properly calculated, and would require employers to produce certain records to the Labor Commissioner, upon request. The bill would specify that all related prior exemptions issued by the director are revoked.
Existing law requires the Labor Commissioner to investigate allegations that a contractor or subcontractor violated the law regulating public works projects, including the payment of prevailing wages. Existing law requires each contractor and subcontractor on a public works project to keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and
week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the contractor or subcontractor in connection with the public work. Existing law requires any copy of records made available for inspection as copies and furnished upon request to the public or any public agency to be marked or obliterated to prevent disclosure of an individual’s name, address, and social security number but specifies that any copy of records made available to a Taft-Hartley trust fund for the purposes of allocating contributions to participants be marked or obliterated only to prevent disclosure of an individual’s full social security number, as specified. Existing law makes any contractor, subcontractor, agent, or representative who neglects to comply with the requirements to keep accurate payroll records guilty of a misdemeanor.
Commencing July 1, 2025, this bill would require job sites to give reasonable access, as defined, to
representatives of a joint labor-management committee in order to monitor compliance with the prevailing wage and apprenticeship requirements. The bill would authorize the committee to bring an action against an awarding body, contractor, or subcontractor that willfully denies the committee’s representative reasonable access.
This bill would authorize, if a contractor or subcontractor fails to make payroll records available for inspection by the Labor Commissioner within a 10-day period, the imposition of certain penalties.
Existing law authorizes contractors or subcontractors to request review of a civil wage and penalty assessment by submitting a written request to the Labor Commissioner within 60 days after service of the assessment. Existing law requires a hearing to be commenced, before the director, within 90 days of the request.
This bill would authorize the director to
dismiss a request for review and issue a decision affirming the assessment if a contractor or subcontractor fails to appear at a hearing or prehearing conference. The bill would also require a petitioner, if seeking review of a decision by the superior court, to post a bond with the Labor Commissioner, as specified.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee:Bill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 1742 of the Labor Code is amended to read:1742.
(a) An affected contractor or subcontractor may obtain review of a civil wage and penalty assessment under this chapter by transmitting a written request to the office of the Labor Commissioner that appears on the assessment within 60 days after service of the assessment. If no hearing is requested within 60 days after service of the assessment, the assessment shall become final.(b) (1) Upon receipt of a timely request, a hearing shall be commenced within 90 days before the director, who shall appoint an impartial hearing officer possessing the qualifications of an administrative law judge
pursuant to subdivision (b) of Section 11502 of the Government Code. The appointed hearing officer shall be an employee of the department, but shall not be an employee of the Division of Labor Standards Enforcement. The contractor or subcontractor shall be provided an opportunity to review evidence to be utilized by the Labor Commissioner at the hearing within 20 days of the receipt of the written request for a hearing. Any evidence obtained by the Labor Commissioner subsequent to the 20-day cutoff shall be promptly disclosed to the contractor or subcontractor.
The
(2) The contractor or subcontractor
shall have the burden of proving that the basis for the civil wage and penalty assessment is incorrect. The assessment shall be sufficiently detailed to provide fair notice to the contractor or subcontractor of the issues at the hearing.
Within
(3) Within 45 days of the conclusion of the hearing, the director shall issue a written decision affirming, modifying, or dismissing the assessment. The decision of the director shall consist of a notice of findings, findings, and an order. This decision shall be served on all parties and the awarding body pursuant to Section 1013 of the Code of Civil
Procedure by first-class mail at the last known address of the party on file with the Labor Commissioner. Within 15 days of the issuance of the decision, the director may reconsider or modify the decision to correct an error, except that a clerical error may be corrected at any time.
(4) If the contractor or subcontractor requesting review fails to appear for a prehearing conference or hearing after receiving notice served pursuant to Section 1013 of the Code of Civil Procedure by first-class mail at the last known address of the party on file with the Labor Commissioner, the director may dismiss the request for review and issue a decision affirming the assessment. Within 15 days of the issuance of the decision, the director may, upon a showing of good cause for the failure to appear, reconsider the dismissal of the request for review.
The
(5) The director shall adopt regulations setting forth procedures for hearings under this subdivision.
(c) (1) An affected contractor or subcontractor may obtain review of the decision of the director by filing a petition for a writ of mandate to the appropriate superior court pursuant to Section 1094.5 of the Code of Civil Procedure within 45 days after service of the decision. If no petition for writ of mandate is filed within 45 days after service of the decision, the order shall become final. If it is claimed in a petition for writ of mandate that the findings are not supported by the evidence, abuse of discretion is established if the court
determines that the findings are not supported by substantial evidence in the light of the whole record.
(2) As a condition to filing a petition for a writ of mandate, the petitioner seeking the writ shall first post a bond with the Labor Commissioner equal to the total amount found to be due and owing as determined pursuant to the decision. The bond shall be issued by a surety duly authorized to do business in this state and shall be issued in favor of the Labor Commissioner.
(d) A certified copy of a final order may be filed by the Labor Commissioner in the office of the clerk of the superior court in any county in which the affected contractor or subcontractor has property or has or had a place of business. The clerk, immediately upon the filing, shall enter judgment for
the state against the person assessed in the amount shown on the certified order.
(e) A judgment entered pursuant to this section shall bear the same rate of interest and shall have the same effect as other judgments and shall be given the same preference allowed by law on other judgments rendered for claims for taxes. The clerk shall not charge for the service performed by him or her
them pursuant to this section.
(f) An awarding body that has withheld funds in response to a civil wage and penalty assessment under this chapter shall, upon receipt of a certified copy of a final order that is no longer subject to judicial review, promptly transmit the withheld funds, up to the amount of the certified order, to the Labor Commissioner.
(g) This section shall provide the exclusive method for review of a civil wage and penalty assessment by the Labor Commissioner under this chapter or the decision of an awarding body to withhold contract payments pursuant to Section 1771.5.
SEC. 2.
Section 1771.2.1 is added to the Labor Code, to read:1771.2.1.
(a) (1) Representatives of a joint labor-management committee established pursuant to the federal Labor Management Cooperation Act of 1978 (29 U.S.C. Sec. 175a) shall be permitted reasonable access to active public works job sites to monitor compliance with the prevailing wage and apprenticeship requirements of this chapter.(2) For purposes of this section, “reasonable access” means access that is consistent with job site safety and security requirements and that does not disrupt performance of work. Reasonable access includes access to workers during non-work time.
(b) (1) (A) A joint labor-management committee described in subdivision (a) may bring an action in any court of competent jurisdiction against an awarding body, contractor, or
subcontractor that willfully denies the committee’s representative reasonable access in violation of this section.
(B) The action described in paragraph (1) shall be brought within six months after the denial of access.
(2) (A) A court in the action described in paragraph (1) shall award a prevailing joint labor-management committee a civil penalty of one thousand dollars ($1,000) for each occasion that reasonable access was denied.
(B) A court in the action described in paragraph (1) shall award a prevailing joint labor-management committee its reasonable attorney’s fees and costs incurred in maintaining the action, including expert witness fees.
(c) This section shall become operative on July 1, 2025.
SEC. 3.
Section 1773.1 of the Labor Code is amended to read:1773.1.
(a) Per diem wages, as the term is used in this chapter or in any other statute applicable to public works, includes employer payments for the following:(1) Health and welfare.
(2) Pension.
(3) Vacation.
(4) Travel.
(5) Subsistence.
(6) Apprenticeship or other training programs authorized by Section 3093, to the extent that the cost of training is reasonably related to the amount of the contributions.
(7) Worker protection and assistance programs or committees established under the federal Labor Management Cooperation Act of 1978 (29 U.S.C. Sec. 175a), to the extent that the activities of the programs or committees are directed to the monitoring and enforcement of laws related to public works.
(8) Industry advancement and collective bargaining agreements administrative fees, provided that these payments are made pursuant to a collective bargaining agreement to which the employer is obligated.
(9) Other purposes similar to those specified in paragraphs (1) to (5), inclusive; or other purposes similar to those specified in paragraphs (6) to (8), inclusive, if the payments are made pursuant to a collective bargaining agreement to which the employer is obligated.
(b) Employer payments include all of the following:
(1) The rate of contribution irrevocably made by the employer to a trustee or third person pursuant to a plan, fund, or program.
(2) The rate of actual costs to the employer reasonably anticipated in providing benefits to workers pursuant to an enforceable commitment to carry out a financially responsible plan or program communicated in writing to the workers affected.
(3) Payments to the California Apprenticeship Council pursuant to Section 1777.5.
(c) Employer payments are a credit against the obligation to pay the general prevailing rate of per diem wages. However, credit shall not be granted for benefits required to be provided by other state or federal law, for payments made to
monitor and enforce laws related to public works if those payments are not made to a program or committee established under the federal Labor Management Cooperation Act of 1978 (29 U.S.C. Sec. 175a), or for payments for industry advancement and collective bargaining agreement administrative fees if those payments are not made pursuant to a collective bargaining agreement to which the employer is obligated. Credits for employer payments also shall not reduce the obligation to pay the hourly straight time or overtime wages found to be prevailing. However, an increased employer payment contribution that results in a lower hourly straight time or overtime wage shall not be considered a violation of the applicable prevailing wage determination if all of the following conditions are met:
(1) The increased employer payment is made pursuant to criteria set forth in a collective bargaining agreement.
(2) The basic hourly rate and increased employer payment are no less than the general prevailing rate of per diem wages and the general prevailing rate for holiday and overtime work in the director’s general prevailing wage determination.
(3) The employer payment contribution is irrevocable unless made in error.
(d) An employer may take credit for an employer payment specified in subdivision (b), even if contributions are not made, or costs are not paid, during the same pay period for which credit is taken, if the employer regularly makes the contributions, or regularly pays the costs, for the plan, fund, or program on no less than a quarterly basis.
(e) (1) The credit for
employer payments shall be computed on an annualized basis when the employer seeks credit for employer payments that are higher for public works projects than for private construction performed by the same employer, unless one or more of the following occur: circumstances exist:
(1)
(A) The employer has an enforceable obligation to make the higher rate of payments on future private construction performed by the employer.
(2)
(B) The higher rate of payments is required by a project labor agreement.
(3)
(C) The payments are made to the California Apprenticeship Council pursuant to Section 1777.5.
(4)The director determines that annualization would not serve the purposes of this chapter.
(2) Paragraph (1) shall apply to all employer payments with the exception of contributions to defined contribution pension plans that provide for both immediate participation and immediate vesting. An employer may take full credit for the hourly amounts contributed to those plans for public works projects even if the employer contributes at a lower rate or does not make contributions for private construction.
(3) The employer shall have the burden of demonstrating that the credit for employer payments was properly calculated pursuant to this subdivision. The employer shall, upon request of the Labor Commissioner, produce records of employee hours and employer payments on private construction sufficient for the Labor Commissioner to verify that the credit for employer payments was properly calculated on an annualized basis pursuant to this subdivision. The Labor Commissioner may deny
the employer credit for the employer payments if such records are not produced.
(4) Any exemptions to the annualization requirements of this subdivision issued by the director prior to January 1, 2025, are revoked.
(f) (1) For the purpose of determining those per diem wages for contracts, the representative of any craft, classification, or type of worker needed to execute contracts shall file with the Department of Industrial Relations fully executed copies of the collective bargaining agreements for the particular craft, classification, or type of work involved. The collective bargaining agreements shall be filed after their execution and thereafter may be taken into consideration pursuant to Section 1773 whenever they are filed 30 days prior to the call for bids. If the collective bargaining agreement has not been formalized, a
typescript of the final draft may be filed temporarily, accompanied by a statement under penalty of perjury as to its effective date.
(2) When a copy of the collective bargaining agreement has previously been filed, fully executed copies of all modifications and extensions of the agreement that affect per diem wages or holidays shall be filed.
(3) The failure to comply with filing requirements of this subdivision shall not be grounds for setting aside a prevailing wage determination if the information taken into consideration is correct.
(g) Prevailing wage fringe benefit credit issues not addressed by California statutes or regulations shall be governed by the version of the United States Department of Labor Field Operations Handbook
in effect on January 1, 2023.
SEC. 4.
Section 1773.6 of the Labor Code is amended to read:1773.6.
(a) If during any quarterly period the Director of Industrial Relations shall determine that there has been a change in any prevailing rate of per diem wages in any locality(b) This section shall become inoperative on July 1, 2025, and, as of January 1, 2026, is repealed.
SEC. 5.
Section 1773.6 is added to the Labor Code, to read:1773.6.
(a) If during any semiannual period the Director of Industrial Relations determines that there has been a change in any prevailing rate of per diem wages in any locality, the director shall make such change available to the awarding body and the director’s determination shall be final, except as specified in this section. Such determination by the director shall apply on its effective date to any contract under this chapter that is awarded or for which notice to bidders is published after July 1, 2025.(b) (1) Any contractor, awarding body, or representative of any craft, classification, or type of work affected by a change in rates on a particular contract may, within 20 days after publication of the new determination, file with the director a verified petition to review the determination of that rate upon the ground
that it has not been determined in accordance with Section 1773. Within two days after the filing of the petition, a copy of that petition shall be filed with the awarding body. The petition shall set forth the facts upon which it is based.
(2) The director, or the director’s authorized representative, shall, upon notice to the petitioner, the awarding body, and other persons the director deems proper, including the recognized collective bargaining representatives for the particular crafts, classifications, or types of work involved, initiate an investigation or hold a hearing. Within 20 days after the filing of that petition, or within a longer period as agreed upon by the director, awarding body, and all interested parties, the director shall make a determination and transmit that determination in writing to the awarding body and to the interested parties. This determination is final.
(c) A determination issued by the director is effective 10 days
after its issuance. The director shall include an issue date on the determination. The determination shall remain in effect until it is modified, rescinded, or superseded by the director.
(d) This section shall become operative on July 1, 2025.
SEC. 6.
Section 1776.2 is added to the Labor Code, to read:1776.2.
(a) Upon request of the Labor Commissioner, a contractor or subcontractor shall make available for inspection by the Labor Commissioner any payroll records requested by the Labor Commissioner to verify the accuracy or completeness of certified payroll records required to be produced pursuant to Section 1776. The contractor or subcontractor has 10 days in which to comply following receipt of a written notice from the Labor Commissioner requesting records. In the event the contractor or subcontractor fails to comply with the 10-day period, the contractor or subcontractor shall be liable for the penalties provided in subdivision (h) of Section 1776.(b) For purposes of this section, the term “payroll records” shall have the same meaning as in Section 16000 of Title 8 of the California Code of
Regulations.
It is the intent of the Legislature to enact statutory changes relating to public works.
