Bill Text: HI HB167 | 2023 | Regular Session | Amended
Bill Title: Relating To Wages.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2023-03-24 - Report adopted; Passed Second Reading, as amended (SD 1) and referred to CPN. [HB167 Detail]
Download: Hawaii-2023-HB167-Amended.html
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
167 |
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THIRTY-SECOND LEGISLATURE, 2023 |
H.D. 2 |
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STATE OF HAWAII |
S.D. 1 |
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A BILL FOR AN ACT
RELATING TO WAGES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 388, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:
"§388- Contractor
liability; unpaid wages. (a) A general contractor entering into or under a
contract in the State for private construction work not subject to chapter 104,
including but not limited to the erection, construction, alteration, or repair
of a building, or structure, shall assume and is liable for any debt owed to a
claimant for wages incurred by a subcontractor at any tier acting under, by, or
for the general contractor, for the claimant's performance of labor included in
the contract between the general contractor and the owner. The general contractor's liability under this
section shall extend only to unpaid wages to the claimant, including any
interest owed, but shall not extend to penalties, consequential or liquidated
damages, or any benefit, fringe benefit, or contribution claims.
A general contractor shall not
evade or commit any act that negates the requirements of this section; provided
that this section does not prohibit a general contractor or subcontractor from contracting
with or enforcing any lawful remedies against a subcontractor for the liability
created by the nonpayment of wages by the subcontractor or by a subcontractor
at any tier working under another subcontractor.
(b) Notwithstanding any law to the contrary,
actions to enforce a general contractor's liability for unpaid wages may
include the following:
(1) The director may enforce liability for unpaid wages established by subsection (a) against a general contractor. The general contractor's liability shall be limited to unpaid wages, including any interest owed; or
(2) A
joint labor-management cooperation committee established pursuant to section
175a of the federal Labor Management Cooperation Act of 1978 (29 U.S.C. 175a)
may bring an action in any court of competent jurisdiction against a general
contractor or subcontractor at any tier for unpaid wages owed to a claimant by
the general contractor or subcontractor for the performance of private construction
work not subject to chapter 104, including unpaid wages owed by the general
contractor, pursuant to subsection (a).
The court may award a prevailing party in an action reasonable
attorney's fees and costs, including expert witness fees; provided that
attorney's fees and costs, including expert witness fees, shall not be awarded
against a general contractor for unpaid wages except the unpaid wages of its
direct employees. As a condition
precedent to any action against a general contractor to enforce the liability
established by subsection (a), the committee shall provide written notice to
the general contractor and subcontractor who employed the claimant, within
ninety days from the date on which the person did or performed the labor for
which claim is made, but no later than forty-five days after the date of
completion as defined in section 507-43, stating with substantial accuracy the
amount claimed and the name of the party for whom the labor was done or
performed. The written notice shall be
served by registered or certified mailing of the notice to the general
contractor and subcontractor at any place the general contractor or subcontractor
maintains an office or conducts their business, or in any manner authorized by
law to serve such notice. The written
notice shall not limit the liability of the general contractor or preclude
subsequent amendments of an action to encompass additional claimants employed
by the subcontractor.
No
other party may bring an action against a general contractor to enforce the
liability established in this section.
(c) Unless
otherwise provided by law, property of the general contractor may be attached
for the payment of any judgment received after trial and pursuant to this
section.
(d) An
action brought pursuant to this section shall be filed within one year from the
date on which the person did or performed the labor for which the claim is
made, but no later than forty-five days after the date of completion as defined
in section 507-43.
(e) This
section does not apply to work performed by an employee of the State or any
political subdivision of the State.
(f) Upon request by a general contractor to a
subcontractor, the subcontractor and any lower tier subcontractors under
contract with the subcontractor shall provide payroll records, which, at a
minimum, shall contain the information set forth in section 387-6 of its
employees who are providing labor on a private construction work. The payroll records shall be marked or
obliterated only to prevent disclosure of an employee's full social security
number; provided that the last four digits of the employee's social security
number shall be provided. Upon request
of a general contractor to a subcontractor, the subcontractor and any lower
tier subcontractors under contract with the subcontractor shall provide the
general contractor with award information that includes the project name, name
and address of the subcontractor, lower-tier subcontractor with whom the
subcontractor is under contract, anticipated start date, duration, estimated
journeyperson and apprentice hours, and contact information for the
subcontractors on the project. A
subcontractor's failure to comply with this subsection shall not relieve a
general contractor from any of the obligations contained in this section.
(g) The
obligations and remedies in this section shall be in addition to any
obligations and remedies otherwise provided by law; provided that nothing in
this section shall be construed to impose liability on a general contractor for
anything other than unpaid wages to the claimant, including any interest owed,
and shall not extend to penalties, consequential or liquidated damages, or any
benefit, fringe benefit, or contribution claims.
(h)
Nothing in this section shall alter an owner's obligation to pay a
general contractor, or the general contractor's obligation to pay a
subcontractor, in a timely manner as follows:
(1) Any money paid to a contractor shall be disbursed to subcontractors within ten days after receipt of the money in accordance with the terms of the subcontract; provided that the subcontractor has met all the terms and conditions of the subcontract and there are no bona fide disputes; and
(2) Upon final payment to the contractor, full payment to the subcontractor, including retainage, shall be made within ten days after receipt of the payment; provided there are no bona fide disputes over the subcontractor's performance under the subcontract;
provided further
that a general contractor may withhold all sums owed to a subcontractor if the
subcontractor does not provide the information requested under subsection (f)
in a timely manner and until such time that the information is provided.
(i) The
provisions of this section are severable.
If any provision of this section or its application is held invalid,
that invalidity shall not affect other provisions or applications that can be
given effect without the invalid provision or application.
(j) For
purposes of this section:
"General contractor" means a contractor who has a direct contractual relationship with an owner.
"Subcontractor" means a
contractor who does not have a direct contractual relationship with an
owner. "Subcontractor" includes
a contractor who has a contractual relationship with a general contractor or
with another subcontractor."
SECTION 2. Section 388-1, Hawaii Revised Statutes, is amended by amending the definition of "employer" to read as follows:
"Employer" includes any individual, partnership, association, joint-stock company, trust, corporation, the personal representative of the estate of a deceased individual or the receiver, trustee, or successor of any of the same, employing any person, but shall not include the State or any political subdivision thereof or the United States. "Employer" includes a general contractor, for purposes of wages owed to a subcontractor's employees, as those terms are defined in section 388- ; who, for purposes of wages owed to a subcontractor's employees, is deemed the employer for enforcement."
SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 4. New statutory material is underscored.
SECTION 5. This Act shall take effect on June 30, 3000.
Report Title:
Wages; Timely Payment; General Contractors; Subcontractors; Liability
Description:
Makes general contractors entering into or under contracts in the State for work on buildings, structures, or other private construction works liable for debt incurred by subcontractors for wages due to claimants for performance of labor in the contract between the general contractor and owner. Effective 6/30/3000. (SD1)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
