Bill Text: CA SB377 | 2013-2014 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Public works: project determinations: wage and penalty assessments.

Sponsorship: Partisan Bill (Democrat 1)

Status: (Passed) 2013-10-12 - Chaptered by Secretary of State. Chapter 780, Statutes of 2013. [SB377 Detail]

Download: California-2013-SB377-Amended.html

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BILL NUMBER: SB 377	AMENDED
	BILL TEXT

	AMENDED IN SENATE  APRIL 1, 2013

INTRODUCED BY   Senator Lieu

                        FEBRUARY 20, 2013

   An act to amend  Section 139.43   Sections
1726, 1741, 1771.2, and 1773.5  of the Labor Code, relating to
 workers' compensation   public works  .



	LEGISLATIVE COUNSEL'S DIGEST


   SB 377, as amended, Lieu.  Workers' compensation.
  Public works: project determinations: wage and penalty
assessments.  
   Existing law defines the term "public works" for purposes of
requirements regarding the payment of prevailing wages, the
regulation of working hours, and the securing of workers'
compensation for public works projects. Under existing law, the body
awarding the contract for a public work is required to report any
suspected violations of requirements relating to public works
projects to the Labor Commissioner.  
   Under the bill, an awarding body, that does not believe a project
in which it has a legal interest is a public work, is required to
provide notice, as specified, to the Director of Industrial
Relations, the Labor Commissioner, and any other person who requests
that notice.  
   Existing law authorizes the Director of Industrial Relations to
establish rules and regulations for the purpose of carrying out
public works requirements, including, but not limited to, the
responsibilities and duties of awarding bodies relating to public
works projects.  
   This bill would authorize any party to request from the director a
determination of whether a project is a public work, and would
require the director to make that determination within 60 days of the
receipt of that request, except as specified. This bill would
authorize a party to make an administrative appeal of that
determination within 30 days of the date of the determination, and
would require the director to issue a determination on an appeal
within 30 days after the receipt of the appeal, except as specified.
This bill would grant to the director quasi-legislative authority to
determine coverage of projects under prevailing wage requirements,
and provide that a final determination on any appeal is subject to
judicial review.  
   Existing law requires the Labor Commissioner to issue a civil wage
and penalty assessment to a contractor or subcontractor, or both,
if, after an investigation, the commissioner determines there has
been a violation of the laws regulating public works projects,
including the payment of prevailing wages. The assessment is required
to be served within 180 days, with exceptions, after the filing of a
valid notice of completion in the county where the public work was
performed, as specified.  
   This bill would require the assessment to be served within 180
days of the date of the determination of the violation. This bill
would toll the period for service of assessments for the period of
time required by the Director of Industrial Relations to make a
determination of whether the project is a public work, as specified.
 
   Existing law authorizes a joint labor-management committee,
established pursuant to a specified provision of federal law, to
bring an action against any employer who fails to pay prevailing
wages as required by state law. The action is required to commence
not later than 180 days after the filing of a valid notice of
completion in the county where the public work was performed or not
later than 180 days after acceptance of the public work, whichever
occurs later.  
   This bill would toll the period for commencing an action for the
period of time required by the director to determine whether a
project is a public work, as specified.  
   Existing law prohibits a person or entity, other than physicians
or attorneys, from advertising, printing, displaying, publishing,
distributing, or broadcasting in any manner a statement concerning
services or benefits to be provided to an injured worker that is paid
for by that person or entity that is false, misleading, or
deceptive. Violation of these provisions is a misdemeanor punishable
by incarceration in the county jail for not more than one year, or by
a fine not exceeding $10,000, or both.  
   This bill would make a technical, nonsubstantive change to these
provisions. 
   Vote: majority. Appropriation: no. Fiscal committee:  no
  yes  . State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 1726 of the   Labor
Code   is amended to read: 
   1726.  (a) The body awarding the contract for public work shall
take cognizance of violations of this chapter committed in the course
of the execution of the contract, and shall promptly report any
suspected violations to the Labor Commissioner.
   (b) If the awarding body determines as a result of its own
investigation that there has been a violation of this chapter and
withholds contract payments, the procedures in Section 1771.6 shall
be followed.
   (c) A contractor may bring an action in a court of competent
jurisdiction to recover from an awarding body the difference between
the wages actually paid to an employee and the wages that were
required to be paid to an employee under this chapter, any penalties
required to be paid under this chapter, and costs and attorney's fees
related to this action, if either of the following is true:
   (1) The awarding body previously affirmatively represented to the
contractor in writing, in the call for bids, or otherwise, that the
work to be covered by the bid or contract was not a "public work," as
defined in this chapter.
   (2) The awarding body received actual written notice from the
Department of Industrial Relations that the work to be covered by the
bid or contract is a "public work," as defined in this chapter, and
failed to disclose that information to the contractor before the bid
opening or awarding of the contract. 
   (d) If an awarding body believes that a project in which it has a
legal interest is not a public work, the awarding body shall notify
the Director of Industrial Relations, the Labor Commissioner, and any
person who has asked for that notice, together with the reason
therefor, not less than within 30 days of the commencement of any
work estimated to last six months or more, and before the
commencement of any work if a project is not estimated to exceed six
months. This notice shall be a public record. The director shall
create necessary forms and adopt regulations to implement this
subdivision. 
   SEC. 2.    Section 1741 of the   Labor Code
  is amended to read: 
   1741.  (a) If the Labor Commissioner or his or her designee
determines after an investigation that there has been a violation of
this chapter, the Labor Commissioner shall with reasonable promptness
issue a civil wage and penalty assessment to the contractor or
subcontractor or both. The assessment shall be in writing and shall
describe the nature of the violation and the amount of wages,
penalties, and forfeitures due and shall include the basis for the
assessment. The assessment shall be served  not later than
180 days after the filing of a valid notice of completion in the
office of the county recorder in each county in which the public work
or some part thereof was performed, or not later than 180 days after
acceptance of the public work, whichever occurs last. However, if
the assessment is served after the expiration of this 180-day period,
but before the expiration of an additional 180 days, and the
awarding body has not yet made full payment to the contractor, the
assessment is valid up to the amount of the funds retained 
 within 180 days of the date of the determination of a violation
 . Service of the assessment shall be completed pursuant to
Section 1013 of the Code of Civil Procedure by first-class and
certified mail to the contractor, subcontractor, and awarding body.
The assessment shall advise the contractor and subcontractor of the
procedure for obtaining review of the assessment. The Labor
Commissioner shall, to the extent practicable, ascertain the identity
of any bonding company issuing a bond that secures the payment of
wages covered by the assessment and any surety on a bond, and shall
serve a copy of the assessment by certified mail to the bonding
company or surety at the same time service is made to the contractor,
subcontractor, and awarding body. However, no bonding company or
surety shall be relieved of its responsibilities because it failed to
receive notice from the Labor Commissioner.
   (b) Interest shall accrue on all due and unpaid wages at the rate
described in subdivision (b) of Section 3289 of the Civil Code. The
interest shall accrue from the date that the wages were due and
payable, as provided in Part 7 (commencing with Section 1720) of
Division 2, until the wages are paid.
   (c) (1) The Labor Commissioner shall maintain a public list of the
names of each contractor and subcontractor who has been found to
have committed a willful violation of Section 1775 or to whom a final
order, which is no longer subject to judicial review, has been
issued.
   (2) The list shall include the date of each assessment, the amount
of wages and penalties assessed, and the amount collected.
   (3) The list shall be updated at least quarterly, and the
contractor's or subcontractor's name shall remain on that list until
the assessment is satisfied, or for a period of three years beginning
from the date of the issuance of the assessment, whichever is later.

   (d) The period for service of assessments shall be tolled for the
period of time required by the Director of Industrial Relations to
determine whether a project is a public work, including a
determination on administrative appeal, if applicable, pursuant to
subdivisions (b) and (c) of Section 1773.5. 
   SEC. 3.    Section 1771.2 of the   Labor
Code   is amended to read: 
   1771.2.   (a)    A joint labor-management
committee established pursuant to the federal Labor Management
Cooperation Act of 1978 (Section 175a of Title 29 of the United
States Code) may bring an action in any court of competent
jurisdiction against an employer that fails to pay the prevailing
wage to its employees, as required by this article. This action shall
be commenced not later than 180 days after the filing of a valid
notice of completion in the office of the county recorder in each
county in which the public work or some part thereof was performed,
or not later than 180 days after acceptance of the public work,
whichever last occurs. 
   (b) The period for commencing an action shall be tolled for the
period of time required by the Director of Industrial Relations to
determine whether a project is a public work, including a
determination on administrative appeal, if applicable, pursuant to
subdivisions (b) and (c) of Section 1773.5. 
   SEC. 4.    Section 1773.5 of the   Labor
Code   is amended to read: 
   1773.5.   (a)    The Director of Industrial
Relations may establish rules and regulations for the purpose of
carrying out this chapter, including, but not limited to, the
responsibilities and duties of awarding bodies under this chapter.

   (b) Any party may request from the director a determination of
whether a project is a public work, and the director shall make that
determination within 60 days of the receipt of that request. If the
director deems that the complexity of the request requires additional
time to make that determination, the director may have an additional
60 days if he or she certifies in writing to the requestor, and any
awarding body with a legal interest in the project, the reasons for
the extension.  
   (c) A party may make an administrative appeal of the director's
determination within 30 days of the date of the determination. The
director shall issue a determination on the administrative appeal
within 30 days after receipt of the appeal. The director may have an
additional 60 days if he or she certifies in writing to the party
requesting the appeal the reasons for the extension.  
   (d) The director shall have quasi-legislative authority to
determine coverage of projects under prevailing wage laws. A final
determination on any appeal is subject to judicial review pursuant to
Section 1085 of the Code of Civil Procedure.  
  SECTION 1.    Section 139.43 of the Labor Code is
amended to read:
   139.43.  (a) A person or entity shall not advertise, print,
display, publish, distribute, or broadcast, or cause or permit to be
advertised, printed, displayed, published, distributed, or broadcast
in any manner, a statement concerning services or benefits to be
provided to an injured worker that is paid for directly or indirectly
by that person or entity and is false, misleading, or deceptive, or
that omits material information necessary to make the statement
therein not false, misleading, or deceptive.
   (b) As soon as reasonably possible, but not later than January 1,
1994, the administrative director shall adopt regulations governing
advertising by persons or entities other than physicians and
attorneys with respect to services or benefits for injured workers.
In promulgating regulations pursuant to this subdivision, the
administrative director shall review existing regulations, including
those adopted by the State Bar, to identify those regulatory
approaches that may serve as a model for regulations required by this
subdivision.
   (c) A violation of subdivision (a) is a misdemeanor, punishable by
incarceration in the county jail for not more than one year, or by a
fine not exceeding ten thousand dollars ($10,000), or both.
   (d) This section shall not apply to physicians or attorneys. It is
the intent of the Legislature to exempt physicians and attorneys
from this section because the conduct regulated by this section, with
respect to physicians and attorneys, is governed by other provisions
of law.