CC RES 2012-093 RESOLUTION NO. 2012-93
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF RANCHO PALOS VERDES ADOPTING A LABOR
COMPLIANCE PROGRAM FOR THE RANCHO PALOS
VERDES CALIFORNIA COASTAL TRAIL PROJECT AND
OTHER STATE AND FEDERALLY FUNDED PROJECTS
REQUIRING A LABOR COMPLIANCE PROGRAM AND
AUTHORIZING PERCEPTIVE ENTERPRISES, INC. TO
ENFORCE THAT PROGRAM WITH STAFF OVERSIGHT.
WHEREAS, the State Coastal Conservancy Act, implemented by the
California Coastal Conservancy, includes a mandate of creating a system of
public access ways to and along the State's coastline, including development of
the California Coastal Trail (CCT), which will extend 1,200 miles from the Oregon
to Mexico boundary lines once completed;
WHEREAS, the Coastal Conservancy pursues this mandate in part by
awarding grants to public agencies and nonprofit organizations to acquire land,
or any interest therein, or to develop, operate, or manage lands for public access
purposes to and along the California coastline;
WHEREAS, according to the City's Conceptual Trails Plan and the
Council-adopted Vision Plan, the City's segment of the CCT extends the entire
length of the City's coastline between the boundary lines of the City of Palos
Verdes Estates and the City of Los Angeles;
WHEREAS, on October 21, 2010, the State Coastal Conservancy Board
awarded the City $500,000 for completing the City's segment of the CCT and
required that the City contribute a $60,000 matching fund towards this project;
WHEREAS, the State funds for this project come from the Safe Drinking
Water, Water Quality and Supply, Flood Control, River and Coastal. Protection
Bond Act of 2006, Public Resources Code Section 75001 et seq., also called
Proposition 84 (Bond Act);
WHEREAS, Public Resources Code Section 75075 of the Bond Act
requires the City to adopt and enforce a labor compliance program pursuant to
Labor Code Section 1771.5(b) for application to the public works project utilizing
these State funds;
WHEREAS, the City Council now desires to adopt a labor compliance
program pursuant to Labor Code Section 1771.5(b) that can be applied both to
the CCT project and to any future state or federally funded projects that require
such a Labor compliance program; and
WHEREAS, the City Council now desires to authorize Perceptive
Enterprises, Inc. to implement, manage and enforce the City's labor compliance
program to satisfy all the requirements of Labor Code 1771.5.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS
VERDES DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS:
Section 1. The City Council hereby specifically finds that all of the facts
set forth in the recitals of this Resolution are true and correct and hereby
incorporates these facts into this Resolution by this reference.
Section 2. The City Council hereby finds that the City has established
its own labor compliance program, which is attached hereto as Exhibit "A" and
incorporated herein by this reference, in accordance with the requirements of
Labor Code Section 1771.5 and Subchapter 4 of Chapter 8 of Division 1 of Title 8
of the California Code of Regulations.
Section 3. The City Council hereby adopts the City's labor compliance
program. The City's labor compliance program shall apply to the California
Coastal Trail project and shall be available to the City for future application to
other state and federally funded projects that require a labor compliance
program.
Section 4. The Public Works Director of the City is hereby duly
authorized to work with Perceptive Enterprises, Inc. to enforce the above-
referenced labor compliance program on behalf of the City for the California
Coastal Trail project.
PASSED, APPROVED, AND ADOPTED THIS 18th DAY OF DECEMBER 2012.
Mayor
ATTEST:
City Clerk
State of California )
County of Los Angeles )ss
City of Rancho Palos Verdes )
I, Carla Morreale, City Clerk of the City of Rancho Palos Verdes, hereby certify
that the above Resolution No. 2012-93 was duly and regularly passed and
adopted by the said City Council at a regular meeting thereof held on December
18, 2012.
City Clerk
Resolution No. 2012-93
Page 2 of 2
Exhibit "A": Labor Compliance Program
Resolution No.2012-93
Exhibit A
Page 1 of 84
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TABLE OF CONTENTS
Introduction............................................................................................ 1
Section I: Public'Works Subject to Prevailing Wage Laws............................................... 1
Section II: Enforcement of a Labor Compliance Programs,".....see a*****00*0940*post*000000 was tooloomew 2
Section III: Components of a Labor Compliance Program................................................. 2
A Bidding on Public Works Contracts................................................................. 2
BJob Starr Meeting...... *00 a 9*fop 000*00 000 00*0*0*so*000 too 0*9*00 000 0*0000 000049 a gov,off fee sea 00009094100* 2
C Requirement for Certified Payroll Records......................................................... 3
DOrderly Review......09000*000*00*00 060 000*600644*900*0 0060*0*0*000 off woo............................... 3
EPrescribed Routine..................................................................................... 4
F No Payment When Payroll Records Are Delinquent or Inadequate............................ 4
G Responsibility to Enforce Prevailing Wage Requirements....................................... 4
H Failure of an Awarding Body or Labor Compliance Program................................... 4
Section IV: Notice of Labor Compliance Approval.......................................................... 5
Section V: Responsibility of a Contractor..................................................................... 5
A Certified Payroll Records Required..................................0.........................90000 5
B Responsibility for Subcontractors.............................................0 0 9 0 0 9 0 9............... 5
CPayment to Employees................................................................................ 6
DApprentices.................................................:...........................................
E Right to Request a Settlement/Review of Notice of Withholding of Contract Payments.... 7
FLiquidated Damages... 9*00 000***a*****0*0006*000*000000 0........................................ 7
Section VI: LCP Investigation Actions....0*00 7
A Review&Confirmation of Certified Payroll Records....................................0 9 a 0 0... 8
BOn Site Visits.............00000........................00090900..........040000.60060.................... 8
C Audits/Investigations................................................................................... 8
Section VII: LCP Enforcement Actions.. ..................00*09.......................................,0000. 10
AWritten Complaints.................................................................................... 10
B Apprenticeship Standards............................................................................ 10
CWritten Summary......sea Ole a OSO off)4 be$00*googol 9 te***#so e0soame @*too*000*see**099 04460900*9 11
DTraining................................................................................................... 11
Section VIII: Withholding Contract Fayments.................................................................. 11
ADefinitions................................................................................0 0 0 9 0 0......0 11
Resolution No.2012-93
Exhibit A
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B Withholding Contract Payments When Payroll Records Are Delinquent or Inadequate....
C
Withholding Contract Payments When, After Investigation, It is Established That
Underpayment or Other Violation Has Occurred .................... ...............................
Section IX:
Forfeitures Requiring Approval by the Labor Commissioner.......* 460 9.......
Section X:
Determination of Amount of Forfeitures by the Labor Commissioner.. so&&
Section XI:
Notice of Withholding of Contract Payments and Review Thereof ........................
A
Notice of Withholding of Contract Payments ( NWCP) ........... ...............................
BReview
of NWCP ....................................................... ...............................
Section XII:
Deposit of Penalties and Forfeitures Withheld........
Section XIII:
Request for Review & Settlement Authority .................... ...............................
Section XI ♦ :
Debarment Policy ..................................................... ..............................6
Section XV:
Annual Reports ...................................................... ...............................
Section XVI:
Statement of Economic Interest .................................... ...............................
Section XVII:
Payroll Records and Use of Electronic Forms .................. ...............................
Section XVM:
Attachments ............................................................ ...............................
A. Checklist of Law Requirements
B. Audit Record Worksheet
C. Written Acknowledgements
D. Single Project LC Review and Enforcement Report Form
E. Notice of Withholding for Delinquent or Inadequate CPR.s
F. Request for Approval of Forfeitures
G. Notice of Withholding of Contract Payments
H. Notice of Transmittal
I. Notice of Opportunity to Review Evidence Pursuant to Labor Code Section 1742(b)
J. Labor Code, Part 7. Chapter 1. Sections 1720 -1861
Resolution No. 2012 -93
Exhibit A
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INTRODUCTION
City of Rancho Palos Verdes ( "RPV ") institutes this Labor Compliance Program ( "LCP ") Manual for the
purpose of implementing its policy relative to the labor compliance provisions of Proposition 84 and other
state- or federally- funded public works contracts that require such a program. This LCP manual contains
the labor compliance standards required by state laws, regulations, and directives, as well as RPV policies
and contract provisions.
In establishing this manual, RPV adheres to the statutory requirements as enunciated in Section 1771.5(b)
of the California Labor Code, which include but not limited to the following:
1. All bid invitations and public works contracts for the state or federally funded public
works project that requires such a program ( "Project ") shall contain appropriate language
concerning the requirements of this chapter.
,2. A pre -job conference shall be conducted with the contractor and subcontractors to discuss
federal and state labor law requirements applicable to the contract.
3. Project contractors and subcontractors shall maintain and furnish, at a designated time, a
certified copy of each weekly payroll containing a statement of compliance signed under
penalty of perjury.
4. RPV shall review, and, if appropriate, audit payroll records to verify compliance with this
chapter.
5. RPV shall withhold contract payments when payroll records are delinquent or inadequate.
6. RPV shall withhold contract payments equal to the amount of underpayment and
applicable penalties when, after investigation, it is established that underpayment has
occurred.
7. RPV shall comply with any other prevailing wage monitoring and enforcement activities
that are required to be conducted by labor compliance programs by the Department of
Industrial Relations (DIR),
Should applicable sections of the Labor Code or Title 8 of the California Code of Regulations (CCR)
undergo alteration, amendment, or deletion, RPV will modify the affected portions of the LCP
accordingly.
SECTION I - PUBLIC WORKS SUBJECT TO PREVAILING WAGE LAWS
As provided in Labor Code Section 1771, state prevailing wage rates apply to all public works contracts
as set forth in Labor Code Sections 1720 et seq. The DIR pre - determines the appropriate prevailing wage
rates for particular construction trades and crafts.
The Project is defined as a "public work" as defined in Division 2, Part 7, Chapter 1 (commencing with
section 1720) of the Labor Code ( "Chapter I"). Contractor and all subcontractors shall thus perform the
Project as a public work to which prevailing wages shall apply. Copies of the prevailing wage rate per
diem for each craft, classification, or type of worker needed to perform the Project are on file at City Hall
and will be made available to any interested party upon request. Contractor shall post such rates at each
job site of the Project.
City of Rancho Palos Verdes Page 1 of 22
Labor Compliance Program Resolution No. 2012 -93
Exhibit A
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The provisions of Labor Code Section 1771.5(a) allow an awarding body to not require payment of the
general rate of per diem wages or the general rate of per diem wages for holiday and overtime work for
any public works project of $25,000 or less when the project is for construction or installation work, or of
$15,000 or less when the project is for alteration, demolition, repair, or maintenance work. These
provisions shall not apply because RPV does not operate an approved LCP for all public works projects in
which it participates.
SECTION II — ENFORCEMENT OF A LABOR COMPLIANCE PROGRAM
As provided in Labor Code Section 1771 et seq., an awarding body that chooses to use public funds shall
initiate and enforce a LCP as described in subdivision (b) of Section 1771.5 of the Labor Code with
respect to that public works project. The applicable dates of enforcement of the LCP are established by
Section 16422 of Title 8 of the CCR.
No contracts shall be subject to a LCP jurisdiction nor shall the limited exemption from payment of
prevailing wages pursuant to Labor Code Section 1771.5(a) apply to any contract of an awarding body
unless and-until the LCP has been approved by the Director of the DIR (Director).
Contracts for which the Date of Notice or the Call for Bids is subsequent to the date of approval of a LCP
are subject to Labor Code Section 1771.5. In the case of a contract for which there is no Call for Bids, the
applicable date shall be the date of the award of the contract.
Revocation of approval of a LCP by the Director shall not affect the limited exemption from payment of
prevailing wages provided by Labor Code Section 1771.5(a) if the date of such revocation is subsequent
to the Date of Notice or Call for Bids or, in the case of a contract for which there is no Call for Bids,
subsequent to the date of the award of the contract.
SECTION III -- COMPONENTS OF A LABOR COMPLIANCE PROGRAM
In accordance with Labor Code Section 1771.5(b) and pursuant to Title 8 of the CCR Section 16421, a
LCP shall include, but not be limited to, the following requirements:
A. Bidding on Public Works Contracts
The Call for Bids, Design -Build Request, and the contract or purchase order shall contain appropriate
language concerning the requirements of Chapter 1 of Part 7 of Division 2 of the Labor Code.
B. Job Start Meeting
After RPV awards the public works contract, and prior to the commencement of the work, a mandatory
Job Start meeting (Pre -Job conference) shall be conducted by RPV's Labor Compliance Officer (LCO) or
designee with the contractor and those subcontractors listed in its bid documents.
At that meeting, the LCO will discuss the federal and state labor law requirements applicable to the
contract, including prevailing wage requirements, the respective record keeping responsibilities, the
requirement for the submittal of certified payroll reports (CPRs) to RPV, and the prohibition against
discrimination in employment.
The LCO will provide the contractor and each subcontractor with a Checklist of Labor Law Requirements
(Attachment A) containing information suggested in Appendix A of the Title 8 of the CCR Section
16421. The contractors and subcontractors present at the Job Start meeting will be given the opportunity
to ask questions relative to the items contained in the Labor Law Requirements Checklist. The checklist
City of Rancho Palos Verdes Page 2 of 22
Labor Compliance Program Resolution No. 2012 -93
Exhibit A
Page 6 of 84
will then be signed by the contractor's representative, a representative of each subcontractor, and the
LCU.
At the Job Start meeting, the LCO will provide the contractor with a copy of RPV's LCP package which
includes: a copy of the approved LCP, the checklist of Labor Law Requirements, applicable Prevailing
Wage Rate Determinations, blank CPR forms, fringe benefit statements, State apprenticeship
requirements, and a copy of the Labor Code relating to Public works and Public Agencies (Part 7,
Chapter 1, Sections 1720 - 1861).
It will be the contractor's responsibility to provide copies of the LCP package to all listed subcontractors
and to any substituted subcontractors.
C. Requirement for Certified Payroll Records
CPRs are required to be kept by the contractor in accordance with Labor Code Section1776 and furnished
to RPV at times designated in the contract, which shall be at least monthly, or withinl0 days of any
request by -RPV. Use of the current version of the DIR's "Public Works Payroll Reporting Form" (A -1-
131) and Statement of Employer Payments (PW26) constitutes presumptive compliance with the
requirement for CPRs kept in accordance with Labor Code Section 1776, provided the forms are filled out
accurately and completely. These suggested forms are available from the DIR at
http://www.dir.ca.gov/dlse/DLSE-PublicWorks.htm.
D. Orderly Review
RPV will implement a program for orderly review of payroll records and, if necessary, for audits to verify
compliance with the requirements of Chapter 1 of Part 7 of Division 2 of the Labor Code. This review
will consist of the following:
a. Establish and maintain a document control system for receiving, recording, filing, and storing
labor compliance documentation, with an emphasis on confidentiality. Ensure compliance with
recordkeeping and reporting requirements.
b. Obtain construction project schedule to ascertain when various types of work will be started and
completed to anticipate when to expect CPRs from contractor /subcontractors.
c. Establish CPR submittal schedule and ensure that CPRs are received in a timely manner. within
thirty (days) of receipt of CPRs:
i. verify that all information is complete and accurate (name, full social security number,
number of hours worked, wage rate, trade /classification, etc.).
ii. verify that the Statement of Compliance is signed by an authorized contractor representative.
iii. compare listed wages with applicable prevailing wage rate for each trade /work classification.
iv. verify that any pre - determined rate increases are listed on the CPR.
v. compare listed workers with worker interview forms and verify that type of work observed
during site inspection is consistent with worker's classification listed on the CPR.
A. verify proper documentation of fringe benefit payments — in cash to workers or to an
approved Trust Fund for each trade /classification. Periodically request Trust Fund
Statements and contractor cancelled checks to verify payments.
vii. verify proof of payment to Training Fund. Periodically request a letter from applicable
training fund and contractor cancelled checks.
City of Rancho Palos Verdes Page 3 of 22
Labor Compliance Program Resolution No. 2012 -93
Exhibit A
Page 7 of 84
viii. compare progress payment requests and schedule of values with CPRs each month to
reconcile or identify trades not listed on the CPRs.
ix. conduct periodic reviews of Daily Jobsite Reports and Sign -In Sheets to check for
discrepancies between the numbers of workers on site vs. the number of workers reported on
the CPR for the same time period.
x. perform "Payroll Confirmation" in compliance with 8 CCR § 16432(c)
RPV will conduct audits of CPRs, when necessary, in compliance with 8 CCR § 16432(e) that
include: comparing ' reported wages to the applicable prevailing wage to uncover possible wage
violations; identifying overtime and apprentice/j ourneyman ratio violations; identifying
misclassification of workers; identifying under - reporting of workers via cross checking of payroll
reports with field interviews, worker complaints, Daily Construction Reports, progress payments, and
Inspectors' Journals; identifying underpayment of workers, including fringe benefit payments, via
cross checking reported wages with cancelled checks, payroll registers, tiYnesheets, on -site sign -in
sheets, and employers' fringe benefit payment reports.
a. When discrepancies during reviews of CPRs are found, when a worker complaint is made, or as
determined necessary by RPV, the LCP will perform audits of CPRs, including:
i. retrieve employer sign -in sheets, employee ' time cards, worker interview forms, and inspector
daily reports, and compare with information listed on CPRs
ii. verify proper apprentice -to- journeyman ratio
iii. verify proper payment of fringe benefits and overtime
iv. verify total hours worked and that no unauthorized deductions have been taken
v. verify proper payment of over time request and analyze cancelled checks to employees and to
trust funds, when applicable
E. Prescribed Routine
RPV will implement a prescribed routine for withholding penalties, forfeitures, and underpayment of
wages for violations of the requirements of Chapter 1 of Part 7 of Division 2 of the Labor Code as
outlined in Section VIII of this document.
F. No Payment When Payroll Records Are Ddiinquent or Inadequate
All contracts to which prevailing wage requirements apply shall include a provision that contract
payments shall not be made when payroll records are delinquent or inadequate.
G. Responsibilityto Enforce Prevailing_Wne _Requirements
It is the responsibility of RPV to enforce prevailing wage requirements, consistent with the policy of the
State as expressed in Labor Code Section 90.5(a). RPV shall take reasonable, vigorous, and prompt action
to (1) determine whether violations exist, and (2) enforce compliance, including through imposition of
appropriate penalties and formal enforcement action, when violations are found. RPV shall neither avoid
use of its enforcement authority based on cost considerations nor shall it use that authority in an
unreasonable manner to gain leverage over a contractor or subcontractor. Unreasonable use of
enforcement authority includes, but is not necessarily limited to, prolonged or excessive withholdings of
contract payments without making a determination that a violation has occurred.
H. Failure of an Awarding Body. or Labor Compliance Program
City of Rancho Palos Verdes Page 4 of 22
Labor Compliance Program Resolution No. 2012 -93
Exhibit A
Page 8 of 84
The failure of RPV to comply with any requirement imposed by this subchapter shall not of itself
constitute a defense to the failure to pay prevailing wages or to comply with any other obligation imposed
by Chapter 1 (commencing with Section 1720), Part 7, Division 2 of the Labor Code.
SECTION IV — NOTICE OF LABOR COMPLLA NCE PROGRAM APPROVAL
Notice of approval of RPV's LCP shall be given in the Call for Bids and in the contract or purchase order
and shall also be posted at the job site. If more than one job site exists or where such posting would
endanger public safety, the notice may be posted in the manner prescribed by section 16100(b) of Title S
of the California Code of Regulations.
Notice of an approved LCP shall contain, at the ain' , the effective date of the Director's approval, a
statement that the limited exemption from prevailing wages pursuant to Labor Code Section 1771.5(a)
does not apply to contracts under the jurisdiction of the LCP, a telephone number to call for inquiries,
questions, or assistance with regard to the LCP, and the name of the agent or office administering the
LCP.
SECTION V -- RESPONSIBILITIY OF A CONTRACTOR
A. 'Certified Pa r�ro11 Records Required
In accordance with Labor Code Section 1776, the contractor and subcontractor of every tier shall maintain
CPRs on a pre - determined basis by the contract for the entire course of the work, shall preserve them for a
period of five (5) years after final payment on the contract, and shall furnish to the LCP at times
designated in the contract or monthly, whichever is less, or within 10 days of any request by the LCP.
Use of the current version of DIR's "Public Works Payroll Reporting Form" (A -1 -131) and Statement of
Employer Payments (PW26) or reports containing all of the information required by Labor Code Section
1776, with the information organized in a manner that is similar or identical to how the information is
reported on the DIR's suggested "Public Works Payroll Reporting Form" (Form A -1 -131) and Statement
of Employer Payments (PW26) constitutes presumptive compliance with the requirement for CPRs kept
in accordance with Labor Code Section 1776, provided the forms are filled out accurately and completely.
These suggested forms are available from the DIR.
Each individual, laborer or craftsperson working on a public works contract must appear on the CPR. The
basic concept is that the employer must report its workers under the correct trade and classification on its
CPRs and pay its workers accordingly. This includes individuals working as apprentices in an apprentice -
able trade. Owner- operators are to be reported by the contractor employing them and rental equipment
operators are to be reported by the rental company paying the workers' wages, etc.
Sole owners and partners who work on a contract must also submit a CPR listing the days and hours
worked, and the trade and classification descriptive of the work actually done.
The contractor shall be responsible for the submittal of payroll records of all subcontractors on the project
from every tier.
B. Responsibility for Subcontractors
The contractor shall be responsible for ensuring adherence to labor standards provisions and all aspects of
this LCP by its subcontractors of every tier. Moreover, the contractor is responsible for Labor Code
violations of its subcontractors of every tier in accordance with Labor Code Section 1775.
City of Rancho Palos Verdes Page 5 of 22
Labor Compliance Program Resolution No. 2012 -93
Exhibit A
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C. Payment to Employees
employees must be paid unconditionally, and not less often than once each week, the full amounts that
are due and payable for the period covered by the particular payday. Thus, an employer must establish a
fixed workweek (Sunday through Saturday, for example) and an established payday (such as every
Friday, or the preceding day should such payday fall on a holiday). On each and every payday, each
worker must be paid all sums due as of the end of the preceding workweek and must be provided with an
itemized wage statement.
An individual who performs skilled or unskilled labor on a public works project is entitled to be paid the
applicable prevailing wage rate, regardless of whether the individual holds a particular status such as a
partner, owner, owner - operator, independent contractor or sole proprietor, or holds a particular title with
the employer such as president, vice- president, superintendent or foreman.
Contractors and its subcontractors shall acknowledge that eight (8) hours of labor constitutes a legal day's
work. The worker's rate for straight time hours must equal or exceed the rate specified in the contract by
reference to the "Prevailing wage Determinations" for the class of work actually performed. Any work
performed on Saturday, Sunday, and/or on a holiday, or portion thereof, must be paid the prevailing rate
established for those days regardless of the fixed workweek. The hourly rate for hours worked in excess
of 8 hours in a day and 40 hours in a workweek shall be premium pay, which is not less than 1 %Z times the
basic rate of pay. All work performed on Saturday, Sunday and holidays shall be paid pursuant to the
Prevailing Wage determination.
D. Apprentices
Apprentices shall be permitted to work as such only when they are registered, individually, under a bona
fide apprenticeship program registered and approved by the State Division of Apprenticeship Standards
(DAS). The allowable ratio of apprentices to j oumeypersons in any craft/classification shall not be greater
than the ratio permitted to the contractor as to its entire workforce under the registered program.
Any worker listed on a payroll at an apprentice wage rate who is not registered shall be paid the journey
level wage rate determined by the DIR for the classification of the work he /she actually performed. Pre -
apprentice trainees, trainees in non - apprentice -able crafts, and others who are not duly registered will not
be permitted on public works projects unless they are paid full prevailing wage rates as journeypersons.
Compliance with California Labor Code Section 1777.5 requires all public works contractors and
subcontractors to:
1. Submit contract award information to the apprenticeship committee for each apprentice -able
craft or trade in the area of the Project;
2. Request dispatch of apprentices from the applicable Apprenticeship Program(s) and employ
apprentices on public works projects in a ratio to Journeypersons, which in no case shall be less
than one (1) hour of apprentice work to each five (5) hours of journeyperson work;
3. Contribute to the applicable apprenticeship program(s) or the California Apprenticeship
Council in the amount identified in the prevailing wage rate publication for joumeypersons and
apprentices. If payments are not made to an apprenticeship program, they shall be made to the
California Apprenticeship Council, Post Office Box 420603, San Francisco, CA 94142; and
4. Furnish written evidence of the registration of its apprenticeship training. It should be noted
that apprenticeship training approval are on an individual project basis and does not confirm
City of Rancho Palos Verdes Page 6 of 22
Labor Compliance Program Resolution No. 2012 -93
Exhibit A
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approval to train on any other current or future project. The contractor /subcontractor must check
with the applicable Joint Apprenticeship Committee to verify status.
E. Right to Request a Settlement / Review of Notice of withholding of Contract Payments
If an investigation reveals a willful violation and RPV places a Notice of Withholding of Contract
Payments (NWCP), the contractor or subcontractor may request a settlement meeting pursuant to Labor
Code Section 1742.1(b) and may request review of a LCP enforcement action in accordance with Labor
Code Sections 1771.6(b) and 1742 and the regulations found at sections 17201 -17270 of Title 8 of the
CCR.
F. Liquidated Damages
Pursuant to Labor Code Section 1742.1, after 60 days following the service of a civil wage and penalty
assessment under Labor Code section 1741 or a notice of withholding under Labor Code Section 1771.6
(a), the affected contractor, subcontractor, and surety on a bond or bonds issued to secure the payment of
wages covered by the assessment or notice may be liable for liquidated damages in an amount equal to the
wages, or portion thereof, that still remain unpaid. If the assessment or notice subsequently is overturned
or modified after administrative or judicial review, liquidated damages shall be payable only on the wages
found to be due and unpaid.
Additionally, if the contractor or subcontractor demonstrates to the satisfaction of the Director that he or
she had substantial grounds for appealing the assessment or notice with respect to a portion of the unpaid
wages covered by the assessment or notice, the Director may exercise his or her discretion to waive
payment of the liquidated damages with respect to that portion of the unpaid wages. Any liquidated
damages shall be distributed to the employee along with the unpaid wages. Section 203.5 shall not apply
to claims for prevailing wages under this chapter.
In conjunction with the aforementioned, there shall be no liability for liquidated damages if the full
amount of the assessment or notice, including penalties, has been deposited with the DIR within 60 days
following service of the assessment or notice, for the department to hold in escrow pending administrative
strative
and judicial review. The department shall release such funds, plus any interest earned, at the conclusion of
all administrative and judicial review to the persons and entities that are found to be entitled to such
funds.
The Labor Commissioner shall, upon receipt of a request from the affected contractor or subcontractor
within 30 days following the service of a civil wage and penalty assessment under Labor Code Section
1741, afford the contractor or subcontractor the opportunity to meet with the Labor Commissioner or his
or her designee to attempt to settle a dispute regarding the assessment without the need for formal
proceedings. RPV shall, upon receipt of a request from the affected contractor or subcontractor within 30
days following the service of a notice of withholding under subdivision (a) of Labor Code Section 1771.6,
afford the contractor or subcontractor the opportunity to meet with the designee of RPV to attempt to
settle a dispute regarding the notice without the need for formal proceedings. The settlement meeting may
be held in person or by telephone and shall take place before the expiration of the 60-day period for
seeking administrative review. No evidence of anything said or any admission made for the purpose of, in
the course of, or pursuant to, the settlement meeting is admissible or subject to discovery in any
administrative or civil proceeding. No writing prepared for the purpose of, in the course of, or pursuant to,
the settlement meeting, other than a final settlement agreement, is admissible or subject to discovery in
any administrative or civil proceeding. The assessment or notice shall advise the contractor or
subcontractor of the opportunity to request a settlement meeting.
SECTION VI -- LCP INVESTIGATION ACTIONS
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The primary function of the LCP, defined in Title 8 of the CCR Section 16432, is to ensure that public
works contractors comply with the prevailing wage requirements found in the Public Works Chapter of
the Labor Code. The following is intended to establish minimum requirements which the LCP shall meet
or exceed in carrying out that function. Definitions found throughout this section are intended to provide
RPV and representatives of the DIR and the Division of Labor Standards Enforcement with common
terminology as they each perform their respective roles in prevailing wage enforcement in furtherance of
the Labor Code provisions establishing Labor Compliance Programs. This section is also intended to
confirm that the proactive investigation methods, as described in detail herein, only comprise the
minimum obligations required of RPV to satisfy its duty to the Director to operate a LCP as specified in
Title 8 of the CCR Section 16428 and Section 16434.
A. Review & Confirmation of Certified Pa oll Records
Payroll records furnished by contractors and subcontractors in accordance with Title 8 of the CCR
Section 16421(a)(3), and in a format prescribed at section 16401 of Title 8 of the CCR, shall be reviewed
by RPV as promptly as practicable after receipt thereof, but in no event more than 30 days after such
receipt. "Review" for this purpose shall be defined as inspection of the records furnished to determine if
(1) all appropriate data elements identified in Labor Code Section 1776(a) have been reported; (2)
certification forms have been completed and signed in compliance with Labor Code Section 1776(b); and
(3) the correct prevailing wage rates have been reported as paid for each classification of labor listed
thereon, with confirmation of payment in the manner and to the extent described in subpart (c) below.
RPV shall confirm the furnished payroll record for each month in which a contractor or subcontractor
reports having workers employed on the public work. "Co ion" of payroll records furnished by
contractors and subcontractors shall be defined as an independent corroboration of reported prevailing
wage payments. Confirmation may be accomplished through worker interviews, examination of
paychecks or paycheck stubs, direct confirmation of payments from third party recipients of "Employer
Payments" (as defined at section 16000 of Title 8 of the California Code of Regulations), or any other
reasonable method of corroboration. For each month in which a contractor or subcontractor report having
workers employed on the public work, confirmation of furnished payroll records shall be undertaken
randomly for at least one worker for at least one weekly period within that month. Confirmation shall also
be undertaken whenever complaints from workers or other interested persons or other circumstances or
information reasonably suggest to RPV that payroll records furnished by a contractor or subcontractor are
inaccurate.
B. On Site Visits
Representatives of RPV shall conduct in- person inspections at the site(s) at which the contract for public
work is being performed ( "On -Site Visits "). On -Site Visits may be undertaken randomly or as deemed
necessary by RPV, but shall be undertaken during each week that workers are present at sites.
On -Site Visits shall include visual inspection of (1) Copy of the determination(s) of the DIR of the
prevailing wage rate of per diem wages is required to be posted at each job site in compliance with Labor
Code Section 1773.2, and (2) the Notice of Labor Compliance Program Approval is required to be posted
at the job site in accordance with Title 8 of the CCR Section 16429, listing a telephone number to call for
inquiries, questions, or assistance with regard to the LCP.
On -Site Visits may include other activities deemed necessary by the LCP to independently corroborate
prevailing wage payments reported on payroll records furnished by contractors and subcontractors.
C. Audits/Investigations
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Exhibit A
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Audits/investigations may be conducted by RPV when it has been determined that there has been a
violation of the Public Works Chapter of the Labor Code resulting in the underpayment of wages or at the
request of the Labor Commissioner.
An "audit" for this purpose shall be defined as a written summary reflecting prevailing wage deficiencies
for each underpaid worker, and including any penalties to be assessed under Labor Code Sections 1775
and 1813, as determined by the LCP aver consideration of the best information available as to actual
hours worked, amounts paid, and classifications of workers employed in connection with the public work.
Such available information may include, but is not limited to, worker interviews, complaints fromworkers
or other interested persons, all time cards, cancelled checks, cash receipts, trust fund forms, books,
documents, schedules, forms, reports, receipts or other evidences which reflect job assignments, work
schedules by days and hours, and the disbursement by way of cash, check, or in whatever form or manner,
of funds to a person(s) by job classification and/or skill pursuant to a public works project. An audit is
sufficiently detailed when it enables the Labor Commissioner, if requested to determine the amount of
forfeiture under Title 8 of the CCR Section 16437, to draw reasonable conclusions as to compliance with
the requirements of the Public Works Chapter of the Labor Code, and to enable accurate computation of
underpayments of wages to workers and of applicable penalties and forfeitures. An audit, using the forms
in Attachment B, when accompanied by a brief narrative identifying the Bid Advertisement Date of the
contract for public work and summarizing the nature of the violation and the basis upon which the
determination of underpayment was made, presumptively demonstrates sufficiency. Records supporting
an audit shall be maintained by RPV to satisfy its burden of coming forward with evidence in
administrative review proceedings under Labor Code Section 1742 and the Prevailing Wage Hearing
Regulations found at sections 17201 -17270 of Title 8 of the CCR.
After RPV has determined that violations of the prevailing wage laws have resulted in the underpayment
of wages and an audit has been prepared, notification shall be provided to the contractor and affected
subcontractor of an opportunity to resolve the wage deficiency prior to a determination of the amount of
forfeiture by the Labor Commissioner pursuant to these regulations. The contractor and affected
subcontractor shall be provided at least 10 days following such notification to submit exculpatory
information consistent with the "good faith mistake" factors set forth in Labor Code
Section1775(a)(2)(A)(i) and (H**).
If, based upon the contractor's submission, RPV concludes that the failure to pay the correct wages was a
good faith mistake, and has no knowledge that the contractor and affected subcontractor have a prior
record of failing to meet their prevailing wage obligations, RPV shall not be required to send a request to
the Labor Commissioner for a determination of the amount of penalties to be assessed under Labor Code
Section 1775 if the underpayment of wages to workers is promptly corrected and proof of such payment
is submitted to RPV. For each instance in which a wage deficiency is resolved in accordance with this
regulation, RPV shall maintain a written record of the failure of the contractor or subcontractor to meet its
prevailing wage obligation. The record shall identify the public works project, the contractor or affected
subcontractor involved, and the gross amount of wages paid to workers to resolve the prevailing wage
deficiency; the record shall also include a copy of the audit prepared pursuant to Title 8 of the CCR
Section 16432(e) along with any exculpatory information submitted to RPV by the affected contractor or
subcontractor.
Regardless of what is defined as "prevailing wages" in contract terms, noncompliance with the following
are considered failures to pay prevailing wages:
1. Nonpayment of items defined as "Employer Payments" and "General Prevailing Rate of Per
Diem Wages" in Title 8 CCR Section 16000 and Labor Code Section 1771;
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Exhibit A
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2. Failure to provide complete and accurate payroll records, as required by Labor Code Section
1776;
3. Paying apprentice wages to a worker who is not an apprentice as defined in Labor Code
Section 3077;
4. Accepting or extracting kickbacks, in violation of Labor Code Section 1778;
5. Engaging in prohibited actions related to fees for registration as a public works employee, in
violation of Labor Code Section 1779; or
6. Failure to pay overtime for work over 8 hours in any one day or 40 hours in any one week, in
violation of Labor Code sections 1813, 1815, or Title 8 of the CCR. section16200(a)(3)(F).
SECTION 'III ---- LCP ENFORCEMENT ACTIONS
RPV shall have a duty to the Director to enforce the requirements of Chapter 1 of Part 7 of Division 2 of
the Labor Code and these regulations in a manner consistent with the practice of the Labor
Commissioner. It is the practice of the Labor Commissioner to refer to the Director's ongoing advisory
service of web- posted public works coverage determinations as a source of information and guidance in
making enforcement decisions. It is also the practice of the Labor Commissioner to be represented by an
attorney in prevailing wage hearings conducted pursuant to Labor Code Section 1742(b) and sections
17201 ---- -17270 of Title 8 of the CCR.
A. Written Complaints
Pursuant to Title 8 of the CCR Section 16434 (b), upon receipt of a written complaint alleging that a
contractor or subcontractor has failed to pay prevailing wages as required by the Labor Code, RPV shall
do all of the following (Attachment C contains acknowledgement letters).:
1. Within 15 days after receipt of the complaint, send a written acknowledgment to the
complaining party that the complaint has been received and identify the name, address, and
telephone number of the investigator assigned to the complaint (Complaint Acknowledgement
Letter);
2. Within 15 days after receipt of the complaint, provide the affected contractor with the notice
(Notification of Complaint Letter) required under Labor Code section 1775(c) if the complaint is
against a subcontractor;
3. Notify the complaining party in writing of the resolution of the complaint within ten days
after the complaint has been resolved by RPV (Complaint Resolution Letter -- No Violation,
Complaint Resolution Letter Violation);
4. Notify the complaining party in writing at least once every 30 days of the status of a
complaint that has not been resolved by RPV (Complaint Status Letter); and
5. Notify the complaining party in writing at least once every 90 days of the status of a
complaint that has been resolved by RPV but remains under review or in litigation before another
entity (Complaint Review/Litigation Status Letter).
B. Apprentices Standards
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Exhibit A
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Pursuant to Title 8 of the CCR Section 16434(c), the duties of RPV with respect to apprenticeship
standards are as follows:
1. RPV shall (A) inform contractors and subcontractors bidding public works about
apprenticeship requirements, (B) send copies of awards and notices of discrepancies to the DAS
as required under Section 1773.3 of the Labor Code, and (C) refer complaints and promptly
report suspected violations of apprenticeship requirements to the DAS.
2. RPV shall be responsible for enforcing prevailing wage pay requirements for apprentices
consistent with the practice of the Labor Commissioner, including (A) that any contributions
required pursuant to Labor Code Section 1777.5(m) are paid to the appropriate entity, (B) that
apprentices are paid no less than the prevailing apprentice rate, (C) that workers listed and paid as
apprentices on the CPRs are duly registered as apprentices with the DAS, and (D) requiring that
the regular prevailing wage rate be paid (i) to any worker who is not a duly registered apprentice
and (ii) for all hours in excess of the maximum ratio permitted under Labor Code Section
1777.5(g), as determined at the conclusion of the employing contractor or subcontractor's work
on the public works contract.
C. Written Summary
For each public work project subject to RPV's Labor Compliance Program's enforcement of prevailing
wage requirements, a separate, written summary of labor compliance activities and relevant facts
pertaining to that particular project shall be maintained, defined by Title 8 of the CCR Section 16434 (d).
That summary shall demonstrate that reasonable and sufficient efforts have been made to enforce
prevailing wage requirements consistent with the practice of the Labor Commissioner. Attachment D
provides a format for tracking and monitoring enforcement activities. Compliance records for a project
shall be retained until the later of (1) at least one year alter the acceptance of the public work or five years
after the cessation of all labor on a public work that has not been accepted, or (2) one year after a final
decision or judgment in any litigation under Labor Code Section 1742. For purposes of this section, a
written summary or report includes information maintained electronically, provided that the summary or
report can be printed out in hard copy form or is in an electronic format that (1) can be transmitted by e-
mail or compact disk and (2) would be acceptable for the filing of documents in a federal or state court of
record within this state.
D. Training
In accordance to Title 8 of the CCR Section 16434 (e), the Labor Commissioner may provide, sponsor, or
endorse training on how to enforce prevailing wage requirements, including but not necessarily limited to
the subjects of (1) ascert aining prevailing wage requirements and rates from the Division of Labor
Statistics and Research, (2) monitoring and investigation under Title 8 of the CCR Section 16432, (3)
enforcement responsibilities under Title 8 of the CCR Section 16434 — 16439, and (4) procedural
requirements and responsibilities as an enforcing agency under Labor Code Sections 1741 — 1743 and
1771.6 and Sections 17201 — 17270 of Title 8 of the CCR.
SECTION VIII — WITHHOLDING OF CONTRACT PAYMENTS
A. Definitions
1. "Withhold" means to cease payments by RPV, or others who pay on its behalf, or agents, to the
general contractor. Where the violation is by a subcontractor, the general contractor shall be notified
of the nature of the violation and reference made to its rights under Labor Code Section 1729.
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2. "Contracts": except as otherwise provided by agreement, only contracts under a single master
contract, including a Design -Build contract, or contracts entered into as stages of a single project, may
be the subject of withholding.
3. "Delinquent payroll records" means those not submitted on the date set in the contract.
4. "Inadequate payroll records" are any one of the following: (1) A record lacking any of the
information required by Labor Code Section 1776; (2) A record which contains all of the required
information but is not certified, or is certified by someone who is not an agent of the contractor or
subcontractor; (3) A record remaining uncorrected for one payroll period, after the LCP has given the
contractor or subcontractor notice of inaccuracies detected by audit or record review. However,
prompt correction will stop any duty to withhold if such inaccuracies do not amount to one (1)
percent of the entire Certified Weekly Payroll in dollar value and do not affect more than half the
persons listed as workers employed on that Certified Weekly Payroll, as defined in Labor Code
Section 1776 and section 16401 of Title 8 of the California Code of Regulations.
5. Where-the violation is by a subcontractor, the general contractor shall be notified of the nature of the
violation and reference made to its rights under Labor Code Section 1729.
6. "Amount equal to the underpayment" is the total of the following determined by payroll review, audit,
or admission of contractor or subcontractor: (1) The difference between amounts paid to workers and
the correct General Prevailing Rate of Per Diem Wages, as defined in Labor Code Section 1773, and
determined to be the prevailing rate due to workers in such craft, classification or trade in which they
were employed and the amounts paid; (2) The difference between amounts paid on behalf of workers
and the correct amounts of Employer Payments, as defined in Labor Code Section 1773.1 and
determined to be part of the prevailing rate costs of contractors due for employment of workers in
such craft, classification or trade in which they were employed and the amounts paid; (3) Estimated
amounts of "illegal taking of wages "; (4) Amounts of apprenticeship training contributions paid to
neither the program sponsor's training trust nor the California Apprenticeship Council; (5) Estimated
penalties under Labor Code Sections 1775, 1776, and 1813.
B. Withholding of Contract Payments When PM OR Records Are Delin uent or Inade uate
If an investigation reveals a violation from delinquent or inadequate CPRs defined by Section IX(A)
above or Title 8 of the CCR 16435, a withholding of contract payments is required by Labor Code
Section 1771.5(b)(5), and it does not require the prior approval of the Labor Commissioner. RPV shall
only withhold those payments due or estimated to be due to the contractor or subcontractor whose payroll
records are delinquent or inadequate, plus any additional amount that RPV has reasonable cause to
believe may be needed to cover a back wage and penalty assessment against the contractor or
subcontractor whose payroll records are delinquent or inadequate; provided that a contractor shall be
required in turn to cease all payments to a subcontractor whose payroll records are delinquent or
inadequate until RPV provides notice that the subcontractor has cured the delinquency or deficiency.
When contract payments are withheld under this section, RPV shall provide the contractor and
subcontractor, if applicable, with immediate written notice that includes all of the following: (1) a
statement that payments are being withheld due to delinquent or inadequate payroll records, and that
identifies what records are missing or states why records that have been submitted are deemed
inadequate; (2) specifies the amount being withheld; and (3) informs the contractor or subcontractor of
the right to request an expedited hearing to review the withholding of contract payments under Labor
Code Section 1742, limited to the issue of whether the records are delinquent or inadequate or the LCP
has exceeded its authority under this section. This written notice shall resemble Attachment E.
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Exhibit A
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No contract payments shall be withheld solely on the basis of delinquent or inadequate payroll records
after the required records have been produced.
In addition to withholding contract payments based on delinquent or inadequate payroll records, penalties
shall be assessed under Labor Code Section 1776(g) for failure to timely comply with a written request
for CPRs. The assessment of penalties under Labor Code Section 1776(g) does require the prior approval
of the Labor Commissioner under section 16436 of these regulations.
C. Withholding of Contract Payments When Underpayment or Other Violations Have Occurred
If an investigation reveals that underpayment or other violations excluding delinquent or inadequate
payroll records, defined by Section IX(A) above or Title 8 of the CCR 16435.5 have occurred, RPV shall
issue a withholding of contract payments pursuant to Labor Code Section 1771.6, after receiving approval
from the Labor Commissioner under Title 8 of the CCR Sections 16436 and 16437.
SECTION IX -- FORFEITURES REQUIRING APPROVAL B Y THE LABOR
COMMISSIONER
"Forfeitures" means the amount of wages, penalties, and forfeitures assessed by the LCP and proposed to
be withheld pursuant to Labor Code section 1771.6(a), and includes the following: (1) the difference
between the prevailing wage rates and the amount paid to each worker for each calendar day or portion
thereof for which each worker was paid less than the prevailing wage rate by the contractor or
subcontractor; and (2) penalties assessed under Labor Code Sections 1775, 1776 and 1813.
Pursuant to Title 8 of the CCR Section 16411, upon the decision to withhold, retain or forfeit any sum
from a payment due to a contractor as permitted by Labor Code section 1727, the Division of Labor
Standards Enforcement shall give written notice to RPV, the contractor, and to any affected
subcontractor, of the withholding, retention, or forfeiture. Said notice shall include the follow'ng
information: (1) the amount to be withheld, retained or forfeited; (2) a short statement of the factual basis
upon which said amount is to be withheld, retained, Or forfeited, including, but not limited to, the
computation of any wages found to be due, and the computation of any penalties assessed under Labor
Code section 1775; and (3) notice of the right to request a hearing under these regulations, and of the
maxmer in which, and the time within which a hearing must be requested. Said notice shall be sent by
certified mail to the last known address of the contractor, and to the last known address of any affected
subcontractor.
Pursuant to Title 8 of the CCR Section 16436, if the aggregate amount of forfeitures assessed as to a
contractor or subcontractor is less than $1,000.00, the forfeitures shall be deemed approved by the Labor
Commissioner upon service and the Labor Commissioner's receipt of copies of the following: (1) the
NWCP authorized by Labor Code Section 1771.6(a) (Attachment G); (2) an audit as defined in section
16432(e) of these regulations, and (3) a brief narrative identifying the Bid Advertisement Date of the
contract for public work and summarizing the nature of the violation, the basis of the underpayment, and
the factors considered in determining the assessment of penalties, ifany, under Labor Code Section 1775.
For all other forfeitures, approval by the Labor Commissioner shall be requested and obtained in
accordance with Title 8 of the CCR Section 16437 Or Section XI of this manual.
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Exhibit A
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SECTION X -- DETERMINATION OF AMOUNT OF FORFEITURES BY THE
LABOR COMMISSIONER
When RPV requests a determination of the amount of forfeiture, the request shall include a file or report
to the Labor Commissioner which contains at least the information specified in subparts (1) through (8)
below. Attachment F is a suggested format for a Request for Approval of Forfeiture under this section.
1. Whether the public work has been accepted by RPV and whether a valid notice of completion
has been filed, the dates if any when those events occurred, and the amount of funds being held in
retention by RPV;
2. Any other deadline which if missed would impede collection;
3. Evidence of violation, in narrative form;
4. Evidence of violation obtained under Title 8 of the CCR Section 16432 and a copy of the
audit prepared in accordance with Title 8 of the CCR Section 16432(e) setting forth the amounts
of unpaid wages and applicable penalties;
5. Evidence that before the forfeiture was sent to the Labor Commissioner (A) the contractor
and subcontractor were given the opportunity to explain why there was no violation, or that any
violation was caused by good faith mistake and promptly corrected when brought to the
contractor or subcontractor's attention, and (B) the contractor and subcontractor either did not do
so or failed to convince RPV of its position;
6. Where RPV seeks not only wages but also a penalty as part of the forfeiture, and the
contractor or subcontractor has unsuccessfully contended that the cause of violation was a good
faith mistake that was promptly corrected when brought to the contractor or subcontractor's
attention, a short statement should accompany the proposal for a forfeiture, with a recommended
penalty amount pursuant to Labor Code Section 1775(a);
7. Where RPV seeks only wages or a penalty less than $200 per day as part of the forfeiture
because the contractor or subcontractor has successfully contended that the cause of the violation
was a good faith mistake that was promptly corrected when brought to the contractor or
subcontractor's attention, the file should include the evidence as to the contractor or
subcontractor's knowledge of his or her obligation, including the program's communication to the
contractor or subcontractor of the obligation in the bid invitations, at the pre -job conference
agenda and records, and any other notice given as part of the contracting process. With the file
should be a statement, similar to that described in (6), and recommended penalty amounts,
pursuant to Labor Code Sectionl775(a); and
8. The previous record of the contractor and subcontractor in meeting their prevailing wage
obligations.
The file or report shall be served on the Labor Commissioner as soon as practicable after the violation has
been discovered, and not less than 30 days before the final payment, but in no event not less than 30 days
before the expiration of the limitations period set forth in Labor Code Section. 1741.
A copy of the recommended forfeiture and the file or report shall be served on the contractor and
subcontractor at the same time as it is sent to the Labor Commissioner. RPV may exclude from the
documents served on the contractor and subcontractor copies of documents secured from the contractor or
subcontractor during an audit, investigation, or meeting if those are clearly referenced in the file or report.
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The Labor Commissioner shall affu-m, reject, or modify the forfeiture in whole or in part as to the wages
and penalties due.
The Labor Commissioner's determination of the forfeiture is effective on one of the two following dates:
1. For all programs other than those having extended authority under Title 8 of the CCR Section
16427 of these regulations, on the date the Labor Commissioner serves by first class mail, on the
LCP, on the contractor and on the subcontractor, if any, an endorsed copy of the proposed
forfeiture, or a newly drafted forfeiture statement which sets out the amount of forfeiture
approved. Service on the contractor or subcontractor is effective if made on the last address
supplied by the contractor or subcontractor in the record. The Labor Commissioner's approval,
modification or disapproval of the proposed forfeiture shall be served within 30 days of receipt of
the proposed forfeiture.
2. For programs with extended authority under Title 8 of the CCR Section 16427 above,
approval is effective 20 days after the requested forfeitures are served upon the Labor
Commissioner, unless the Labor Commissioner serves a notice upon the parties, within that time
period, that this forfeiture request is subject to further review. For such programs, a notice that
approval will follow such a procedure will be included in the transmittal of the forfeiture request
to the contractor. If the Labor Commissioner notifies the parties of a decision to undertake further
review, the Labor Commissioner's final approval, modification or disapproval of the proposed
forfeiture shall be served within 30 days of the date of notice of further review.
SECTION XI - NOTICE OF WITHHOLDING OF CONTRACT PAYMENTS
A. Notice of Withholding, of Contract Pa eats
Upon receipt of approval of the request for forfeitures by the Labor Commissioner, RPV will place a
NWCP against the affected contractor and subcontractor, if applicable.
This NWCP shall be in writing, describe the nature of the violation and the amount of wages, penalties,
and forfeitures withheld pursuant to Labor Code Section 1771.6 and contain the review procedures
pursuant to Labor Code Section 1742. Service of the notice shall be completed pursuant to Section 1013
of the Code of Civil Procedure by first -class and certified mail to the affected contractor and
subcontractor, if applicable. A copy of the notice shall also be served by certified mail on any bonding
company issuing a bond that secures the payment of the wages covered by the Notice and to any Surety on
a bond, if the identities of such companies are known to RPV. where the violation is by a subcontractor,
the general contactor shall be notified of the nature of the violation and reference made to its rights under
Labor Code Section 1729.
Pending a final order, or the expiration of the time period for seeking review of the NWCP, RPV shall not
disburse any contract payments withheld (Labor Code Section 1771.6(c).
A copy of the NWCP to be utilized by RPV is found as Attachment G to this document.
B. Review of Notice of Withholding of Contract Payments
Pursuant to Labor Code Section 1742, an affected contractor or subcontractor may obtain review of a
NWCP by transmitting a written request to the office of RPV that appears on the NWCP within 60 days
after service of the NWCP. If no hearing is requested within 60 days after service of the NWCP, the
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NWCP shall become final. The Director shall adopt regulations setting forth procedures for hearings
under Labor Code 1742.
Within ten days following the receipt of the Request for Review, RPV shall transmit to the Office of the
Director -Legal Unit the Request for Review and copies of the NWCP, any audit summary that
accompanied the notice, and a proof of service or other documents showing the name and address of any
bonding company or surety that secures the payment of the wages covered by the notice. A copy of the
re4uired Notice of Transmittal to be utilized by RPV is found as Attachment H to this document.
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 Govern ment 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 RPV at the hearing within 20 days of the receipt of the written request for a hearing. Any
evidence obtained by RPV subsequent to the 20 -day cutoff shall be promptly disclosed to the contractor
or subcontractor. A copy of a Notice of Opportunity to Review Evidence Pursuant to Labor Code Section
1742(b) form is found as Attachment I to this document.
The contractor or subcontractor shall have the burden of proving that the basis for the NWCP is incorrect.
The NWCP shall be sufficiently detailed to provide fair notice to the contractor or subcontractor of the
issues at the hearing.
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 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 RPV 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.
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 (Labor Code section 1742 (c)). 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.
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.
A judgment entered pursuant to this procedure 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 pursuant
to this section.
An awarding body that has withheld funds in response to a civil wage and penalty assessment under this
Labor Code 1742, 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
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Commissioner or for the disbursement pursuant to Labor Code Section 1771.6 and Title 8 of the CCR
Section 16438.
This procedure shall provide the exclusive method for review of a NWCP by RPV to withhold contract
payments pursuant to Labor Code section 1771.5.
SECTION XU -- DEPOSIT OF PENALTIES AND FORFEITURES WITHHELD
The deposit of penalties and forfeitures withheld shall be pursuant to Labor Code Section 1771.6 and
Title8 of the CCR Section 16438.
From the amount recovered, the wage claim shall be satisfied prior to the amount being applied to
penalties. If insufficient money is recovered to pay each worker in full, the money shall be prorated
among all workers.
Wages for workers who cannot be located shall be placed in the Industrial Relations Unpaid Wage Fund
and held iri trust for the workers pursuant to Labor Code Section 96.7. Penalties shall be paid into RPV's
General Fund pursuant to Labor Code Section 1771.5.
Where the involvement of the Labor Commissioner has been limited to a determination of the actual
amount of penalty, forfeiture or underpayment of wages, and the matter has been resolved without
litigation by or against the Labor Commissioner, the LCP shall deposit penalties and forfeitures with
RPV.
Where collection of fines, penalties or forfeitures results from administrative proceedings or court action
to which the Labor Commissioner and RPV or its LCP are both parties, the fines, penalties or forfeitures
shall be divided between the general funds of the state and RPV, as the Hearing Officer or court may
decide.
All penalties recovered in a 'strative proceedings or court action brought by or against the Labor
Commissioner and to which RPV or its LCP is not a party, shall be deposited in the general fund of the
state.
All wages and benefits which belong to an employee and are withheld or collected from a contractor or
subcontractor, either by withholding or as a result of administrative proceedings or any court action, and
which have not been paid to the employee or irrevocably committed on the employee's behalf to a benefit
fund, shall be deposited with the Labor Commissioner, who shall handle such wages and benefits in
accordance with Labor Code Section 96.7.
SECTION XIII -- REQUEST FOR REVIEW & SETTLEMENT AUTHORIT
A contractor or subcontractor may request a settlement meeting pursuant to Labor Code Section
1742.1(b) and may request review of RPV's enforcement action in accordance with Labor Code Sections
1771.6(b) and 1742 and the regulations found at sections 17201 -17270 of Title 8 of the CCR. RPV shall
have the rights and responsibilities of the Enforcing Agency (as defined in section 17202(fl of Title 8 of
the CCR), in responding to such a request for review, including but not limited to the obligations to serve
notices, transmit the Request for Review to the hearing office, and provide an opportunity to review
evidence in a timely manner, to participate through counsel in all hearing proceedings, and to meet the
burden of establishing prima facie support for the NWCP.
City of Rancho Palos Verdes Page 17 of 22
Labor Compliance Program Resolution No. 2012 -93
Exhibit A
Page 21 of 84
If a contractor or subcontractor seeks review of .PV's enforcement action, the Labor Commissioner may
intervene to represent RPV, or to enforce relevant provisions of the Labor Code consistent with the
practice of the Labor Commissioner, or both.
Except in cases where the Labor Commissioner has intervened pursuant to subpart above, RPV shall have
the authority to prosecute, settle, or seek the dismissal of any NWCP issued pursuant to Labor Code
Section 1771.6 and any review proceeding under Labor Code Section 1742, without any further need for
approval by the Labor Commissioner. whenever RPV settles in whole or in part or seeks and obtains the
dismissal of a NWCP or a review proceeding under Labor Code Section 1742, RPV shall document the
reasons for the settlement or request for dismissal and shall make that documentation available to the
Labor Commissioner upon request.
SECTION XIV ----- DEBARMENT POLICY
It is the policy of RPV that the public works prevailing wage requirements set forth in the California
Labor Code, Section 1720-1861, be strictly enforced. In furtherance thereof, construction contractors and
subcontractors found to be repeat violators of the California Labor Code shall be referred to the Labor
Commissioner for debarment from bidding on or otherwise being awarded any public work contract,
within the state of California, for the performance of construction and/or maintenance services for the
period not to exceed three (3) years in duration. The duration of the debarment period shall depend upon
the nature and severity of the labor code violations and any mitigating and/or aggravating factors, which
may be presented at the hearing conducted by the Labor Commissioner for such purpose. The debarment
shall follow the regulations set forth in Labor Code Section 1777.1 and Title 8 of the CCR Section 16800-
16802.
SECTION XV - ANNUAL REPORTS
RPV shall submit to the Director an annual report on its operation by no later than August 31 of each
year. The annual report shall cover the twelve month period commencing on July 1 of the preceding
calendar year and ending on June 30 of the year in which the report is due. For good cause, the Director
may authorize RPV to use a different reporting period and provide for the annual report to be due no later
than 60 days following the close of that reporting period.
The Annual Report shall be made on the LCP- .A.R.1.
Information in the Annual Report shall be reported in sufficient detail to afford a basis for evaluating the
scope and level of enforcement activity of the LCP. An annual report shall also include such additional
information as RPV may be required to report as a condition of its approval.
If the LCP ceases operating, either due to the voluntary termination of its program or the revocation of its
approval by the Director, RPV shall file a closing annual report within sixty (days) following the LCP's
last day of operation as an approved program.
SECTION XVI — STATEMENT OF ECONOMIC INTEREST
RPV shall determine and designate those employees and consultants of the program who participate in
making governmental decisions for RPV within the meaning of Title 2, CCR, sections 18700 18702.4.
Those designated employees and consultants shall be required to file Statements of Economic Interest
(FPPC Form 700) and to comply with other applicable requirements of the Political Reform Act
(commencing with Section 87100 of the Government Code) in connection with work performed on behalf
of RPV.
City of Rancho Palos Verdes Page 18 of 22
Labor Compliance Program Resolution No. 2012 -93
Exhibit A
Page 22 of 84
Designated employees and consultants of RPV who operate the LCP shall file their Statements of
Economic Interest (FPPC Form 700) with RPV's filing officer, unless the DIR or the Fair Political
Practices Commission specifies a different or alternative filing location.
SECTION XVII -- PAYROLL RECORDS AND USE OF ELECTRONIC FORMS
§16400. Request for Payroll Records.
Pursuant to Title 8 of the CCR Section 16400, requests may be made by any person for certified copies of
payroll records. Requests shall be made to any of the following:
1. RPV, or
2. any office of the Division of Labor Standards Enforcement, or the Division of Apprenticeship
Standards.
Requests for certified copies of payroll records pursuant to Section 1776 of the Labor Code may be made
by any person. However, any such request shall be in writing and contain at least the follow*ng
information:
1. The body awarding the contract;
2. The contract number and/or description;
3. The particular job location if more than one;
4. The name of the contractor;
5. The regular business address, if known.
NOTE: Requests for records of more than one contractor of subcontractor must list the information
regarding that contractor or subcontractor individually, even if all requests pertain to the same particular
public works project. Blanket requests covering an entire public works project will not be accepted unless
contractor and subcontractor responsibilities regarding the project are not clearly defined.
The public entity receiving a request for payroll records shall acknowledge receipt of such, and indicate
the cost of providing the payroll records based on an estimate by the contractor, subcontractor or public
entity. The acknowledgment of the receipt of said request for payroll records may be accomplished by the
public entity's famishing a copy of its written correspondence requesting certified copies of the payroll
records sent to the specific contractor pursuant to Section 16400(d) below, to the person who requested
said records.
The request for copies of payroll records by the requesting public entity shall be in any form and/or
method which will assure and evidence receipt thereof. The request shall include the following:
1. Specify the records to be provided and the form upon which the information is to be
provided;
2. Conspicuous notice of the following:
A. that the person certifying the copies of the payroll records is, if not the contractor,
considered as an agent acting on behalf of the contractor; and
City of Rancho Palos Verdes Page 19 of 22
Labor Compliance Program Resolution No. 2012 -93
Exhibit A
Page 23 of 84
B. that failure to provide certified copies of the records to the requesting public entity
within 10 working days of the, receipt of the request will subject the contractor to a penalty of
twenty -five ($25.00) dollars per calendar day or portion thereof for each worker until strict
compliance is effectuated;
3. Cost of preparation as provided in Section 16402; and
4. Provide for inspection.
Inspection of the original payroll records at the office of the contractor(s) pursuant to subdivision (b) of
Section 1776 of the Labor Code shall be limited to the public entities upon reasonable written or oral
notice.
§16401. Reporting of Payroll Requests.
Pursuant to Title 8 of the CCR Section 16401, the format for reporting of payroll records requested
pursuant to Labor Code Section 1776 shall be on a form provided by the public entity. Copies of the
forms may' be procured at any office of the Division of Labor Standards Enforcement (DLSE) throughout
the state and/or:
Division of Labor Statistics & Research P.Q. Box 603 San Francisco, CA 94101 ATTENTION:
Prevailing Wage Unit
Acceptance of any other format shall be conditioned upon the requirement that the alternate format
contain all of the information required pursuant to Labor Code Section 1776. If, however, the contractor
does not comply with the provisions of Labor Code Section 1776, the Labor Commissioner may require
the use of DIR's suggested format, "Public Works Payroll Reporting Form" (Form. A -1 - 131).
The form of certification shall be as follows: I, (Name -- print) the undersigned, am
(position in business) with the authority to act for and on behalf of , (name of business
and/or contractor) certify under penalty of perjury that the records or copies thereof submitted and
consisting of (description, no. of pages) are the originals or true; full and correct
copies of the originals which depict the payroll record(s) of the actual disbursements by way of cash,
check, or whatever form to the individual or individuals named. Date: Signature:
A public entity may require a stricter and/or more extensive form of certification.
§16402. Cosh
Pursuant to Title 8 of the CCR Section 16402, the cost of preparation of payroll records to each
contractor, subcontractor, or public entity when the request was made shall be provided in advance by the
person seeking the payroll record. Such cost shall be $1 for the first page of the payroll record and
25cents for each page thereafter, plus $10 to the contractor or subcontractor for handling costs. Payment
in the form of cash, check or certified money order shall be made prior to release of the documents to
cover the actual costs of preparation.
§16403. Privacy Considerations.
Pursuant to Title 8 of the CCR Section 16403:
(a) Records received from the employing contractor shall be kept on file in the office or entity that
processed the request for at least 6 months following completion and acceptance of the project.
Thereafter, they may be destroyed unless administrative, judicial or other pending litigation, including
City of Rancho Palos Verdes Page 20 of 22
Labor Compliance Program Resolution No. 2012 -93
Exhibit A
Page 24 of 84
arbitration, mediation or other methods of dispute resolution, are m process. Copies on file shall not be
obliterated in the manner prescribed in subdivision (b) below;
(b) copies provided to the public upon written request shall be marked, obliterated or provided in such a
manner that the name, address and Social Security number, and other private information pertaining to
each employee cannot be identified. All other information including identification of the contractor shall
not be obliterated;
(c) the public entity may affirm or deny that a person(s) was or is employed on a public works contract
(by a specific contractor) when asked, so long as the entity requires such information of an identifying
nature which will reasonably preclude release of private or confidential information.
§16404. Use of Electronic Reporting Forms.
Pursuant to Title 8 of the CCR Section 16404, CPRs required by Labor Code Section 1776 may be
maintained and submitted electronically subject to all of the following conditions:
1. The reports must contain all of the information required by Labor Code Section 1776, with
the information organized in a manner that is similar or identical to how the information is
reported on the DIR's suggested "Public Works Payroll Reporting Form" (Form A -1 -131);
2. The reports shall be in a format and use software that is readily accessible and available to
contractors, awarding bodies, Labor Compliance Programs, and the DIR;
3. Reports submitted to an awarding body, a LCP, the DLSE, or other entity within the DIR
must be either (1) in the form of a non - modifiable image or record that bears an electronic
signature or includes a copy of any original certification made on paper, or alternatively (2)
printed out and submitted on paper with an original signature;
4. The requirements for redacting certain information shall be followed when CPRs are
disclosed to the public pursuant to Labor Code Section 1776(e), whether the records are provided
electronically or as hard copies; and
5. No contractor or subcontractor shall be mandated to submit or receive electronic reports when
it otherwise lacks the resources or capacity to do so, nor shall any contractor or subcontractor be required
to purchase or use proprietary software that is not generally available to the public.
SECTION XVIII -- ATTACHMENTS TO FOLLOW
• Checklist of Law Requirements
• Audit Record Worksheet
• Written Acknowledgements
• Single Project LC Review and Enforcement Report Form
• Notice of Withholding for Delinquent or Inadequate CPRs
• Request for Approval of Forfeitures
• Notice of Withholding of Contract Payments
City of Rancho Palos Verdes Page 21 of 22
Labor Compliance Program Resolution No. 2012 -93
Exhibit A
Page 25 of 84
• Notice of Transmittal
• Notice of Opportunity to Review Evidence Pursuant to Labor Code Section 1742 (b)
0 Labor Code, Part 7, Chapter 1, Sections 1720 -1861
City of Rancho Palos Verdes Page 22 of 22
Labor Compliance Program Resolution No. 2012 -93
Exhibit A
Page 26 of 84
Checklist of Labor Law Requirements
(CCR Title 8, Section 1642 1)
NAME (PRINT)
COMPANY
ADDRESS
CITY
PROJECT MANAGER
CERTIFIED PAYROLL
CONTRACTOR LICENSE NO. �..
SELF - INSURED CERTIFICATE NO.
PROJECT NAME
AWARDING BODY
IF SUBCONTRACTING, LIST YOUR PRIME/GENERAL CONTRACTOR
ATTACHMENT A
Ultimately the prime contractoris liable for theirsub and specialty contractors. This checklist is a
useful tool for the prime contractor to ensure that theirsub andspecialty contractors know their
responsibilities on public works projects. Contractors who understand and comply with the low
are more likely to deliverthejob on time, on budget and done right the first time. We suggest the
prime contractor encourage completion of this checklist by theirsub and specialty contractors.
DATE
PHONE
FAX
STATE ZIP CODE
SUPERINTENDENT/FOREMAN
PHONE/EXT.
EXP. DATE SPECIALTY LICENSE NO.
WORKERS COMP. POLICY NO.
PROJECT #BID PACKAGE#
ADVERTISEMENT DATE
CONTRACT AWARD AMOUNT
THE FEDERAL AND STATE LABOR LAW REQUIREMENTS APPLICABLE TO THE CONTRACT ARE COMPOSED OF, BUT NOT
LIMITED TO, THE FOLLOWING:
0 Payment of Prevailing Wage Rates
The contractor to whom the contract is awarded and its subcontractors hired for the public works project are required
to pay not less than the specified general prevailing wage rates to all workers employed in the execution of the contract.
Labor Code Section 1770 et seq.
The contractor is responsible for ascertaining and complying with all current general prevailing wage rates for crafts and
any rate changes that occur during the life of the contract. Information on all prevailing wage rates and all rate changes
are to be posted at the job site for all workers to view. Additionally, current wage rate information can be found at the
DLSR web site, www.dir.co.govldlsrlstatistics�_research.htmL
C] Apprentices
It is the duty of the contractor and subcontractors to employ registered apprentices on the public works project and
to comply with all aspects of Labor Code Section 1777.5, relating to Apprentices on Public Works. (1) Notify approved
apprenticeship programs of contract award; (2) employ apprentices; (3) pay training fund contributions.
D Penalties
There are penalties required for contractor's /subcontractor's failure to pay prevailing wages and for failure to employ
apprentices, including forfeitures and debarment under Labor Code Sections 1775; 1776; 1777.1; 1777.7 and 1813.
13 Certified Payroll Reports
Under Labor Code Section 1776, contractors and subcontractors are required to keep accurate payroll records showing the name,
address, social security number and work classification of each employee and owner performing work; also the straight time and
overtime hours worked each day for each week, the fringe benefits, and, the actual per diem wage paid to each owner, journey
person, apprentice worker or other employee hired in connection with the public works project.
This requirement includes and applies to all subcontractors performing work on Awarding Body projects even if their portion of
the work is less than one half of one percent (0.05%) of the total amount of the contract.
The certified payroll records shall contain the same data fields listed on the Public Works Payroll Reporting Form (A -1 -131) and
contain or is accompanied by a declaration made under penalty of perjury. (California Code ofRegulations, Section 16401).
Prime Contractors are responsible for submittal of their payrolls and those of their respective subcontractors as one package.
Any payroll not submitted in the proper form will be rejected. in the event that there has been no work Wrforpl ed N'rir2 -93
eso ion o.
Exhibit A
Page 27 of 84
Checklist of Labor Law Requirements, continued
given week, the Certified Payroll Report shall be annotated: "No work "for that week or a Non- Performance Statement must be
submitted.
Employee payroll records shall be certified and shall be made available for inspection at all reasonable hours at the principal office
of the contractor /subcontractor, or shall be furnished to any employee, or his /her authorized representative on request, pursuant
to Labor Code Section 1776.
Under Labor Code Section 1776(g) there are penalties required for contractor's /subcontractor's
failure to maintain and submit copies of certified payroll records on request.
❑ Nondiscrimination in Employment
There exist prohibitions against employment discrimination under Labor Code Sections 1735 and 1777.6,
the Government Code, the Public Contracts Code, and Title V11 of the Civil Rights Act of 1964.
C] Kickbacks Prohibited
Contractors and subcontractors are prohibited from recapturing wages illegally by accepting
or extracting "kickbacks" from employee wages under Labor Code Section 1778.
❑ Acceptance of Fees Prohibited
There exists a prohibition against contractor /subcontractor acceptance of fees for registering any person for public work
under Labor Code Section 1779; or for filling work orders on public works contracts pursuant to Labor Code Section 1780.
❑ Listing of Subcontractors
All prime contractors are required to list properly all subcontractors hired to perform work on the public works projects
covering more than one -half of one percent, pursuant to Government Code Section 4104.
13 Proper Licensing
Contractors are required to be licensed properly and to require that all subcontractors be properly licensed. Penalties
are required for employing workers while unlicensed under Labor Code Section 1021 and under the California Contractor
License Law found at Business and Professions Code Section 7000 et seq.
0 Unfair Competition Prohibited
Contractors and sub - contractors are prohibited from engaging in unfair competition
as specified under Business and Professions Code Sections 17200 to 17208.
❑ Workers Compensation Insurance
Labor Code Section 1861 requires that contractors and subcontractors be insured properly for Workers Compensation.
13 OSHA
Contractors and subcontractors are required to abide by the Occupational, Safety and Health
laws and regulations that apply to the particular construction project.
❑ Proof of Eligibility /Citizenship
The federal prohibition against hiring undocumented workers, and the
requirement to secure proof of eligibility /citizenship from all workers, is required.
E7 Itemized Wage Statement
Labor Code Section 226 requires that employees be provided with itemized wage statements.
CERTIFICATION
1 acknowledge that I have been informed and am aware of the foregoing requirements and that I am authorized to make this
certification on behalf of
(COMPANY NAME)
I fully understand that failure to comply with any of the above requirements may subject me, or my company, to penalties as
provided above.
Contractor
Awarding Agency /Labor Compliance Program
(SIGNATURE)
(SIGNATURE)
(DATE)
Resolution 14R.AA 2 -93
Exhibit A
Page 28 of 84
ATTACHMENT B
Labor Compliance Program Regulations
Appendix B
Audit Record Worksheets [8 Cal. Code Reg. §16432]
• Public Works Investigation Worksheet
• Public Works Audit Worksheet
• Prevailing Wage Determination Summary
Resolution No. 2012 -93
Exhibit A
Page 29 of 84
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City of Rancho Palos Verdes
Labor Compliance Program
«Date» (Send within 15 days of receipt of complaint)
<<Complainant>>
«Address»
< < Address> >
Re: Case No:
Project:
Contract No:
AllegeO Contractor:
Dear <<Complainant >>:
< <CASE NUMBER>>
< < PROJ ECT> >
<<CONTRACT NUMBER>>
< <CONTRACTOR> >
ATTACHMENT C
The City of Rancho Palos Verdes has received a prevailing wage complaint, which you filed against
< <CONTRACTOR> > on the above- referenced project. This case has been assigned to < < ASSIGNED
INVESTIGATOR >>, « TITLE>> for a preliminary investigation. You will be contacted via certified
mail or telephone for an interview, as well as at the conclusion of the preliminary investigation. If you
have any questions regarding the investigation or complaint process, please contact <<ASSIGNED
INVESTIGATOR>> at <<PHONE NUMBER>> or <ADDRESS >>.
Sincerely,
<<NAME>>
< < TITLE> >
cc:
Certified Mail No(s): «CERTIFIED MAIL NUMBER>> /Return Receipt Requested
City of Rancho Palos Verdes
Labor Compliance Department Resolution No. 2012 -93
30940 Hawthorne Blvd., Rancho Palos Verdes, CA 90275 -5391 Exhibit A
Telephone: (310) 544 -5252 Fax: (310) 544 -5292 Page 33 of 84
City of Rancho Palos Verdes
Labor Compliance Program
«Date» (Send within 15 days of receipt of complaint)
< <Contractor> >
<<Address>>
<<Address>>
Re: Case No:
Project:
Contract No:
Subcontractor (if applicable):
Dear <<Contractor> > :
ATTACHMENT C
<<CASE NUMBER>>
<<PROJECT>>
<<CONTRACT NUMBER>>
< <SUBCONTRACTOR> >
City of Rancho Palos Verdes has received a prevailing wage complaint(s) against your company (or
subcontractor) in the above- referenced project. This case has been assigned to <<ASSIGNED
INVESTIGATOR >>, «TITLE>> for a preliminary investigation. You will be contacted via certified
mail at the conclusion of the preliminary investigation for an opportunity to review the allegations and
any supporting documentations. Following this meeting you will be provided an opportunity to submit
mitigating evidence. All evidence will be objectively reviewed prior to reaching a conclusion. Please be
advised that the identity of the complaining party(ies) must remain confidential until the conclusion of the
investigation. While we are limited in the information we may provide you, If you have any questions
regarding the investigation or complaint process, please contact <<ASSIGNED INVESTIGATOR» at
< < PHON E NUMBER>> or < <ADDRESS> >.
Sincerely,
<<PERSON IN CHARGE>>
< <TITLE> >
cc
Certified Mail No(s): «CERTIFIED MAIL NUMBER>> /Return Receipt Requested
City of Rancho Palos Verdes
Labor Compliance Department Resolution No. 2012 -93
30940 Hawthorne Blvd., Rancho Palos Verdes, CA 90275 -5391 Exhibit A
Telephone: (310) 544 -5252• Fax: (310) 544 -5292 Page 34 of 84
City of Rancho Palos Verdes
Labor Compliance Program
«Date» (Send within 10 days after the complaint is resolved)
<<Complainant>>
< <Add ress > >
< <Add ress > >
Re: Case No:
Project:
Contract No:
Alleged Contractor:
Dear < < Complainant> > :
<<CASE NUMBER>>
< < PROJ ECT> >
<<CONTRACT NUMBER>>
<<CONTRACTOR >>
ATTACHMENT C
The City of Rancho Palos Verdes has thoroughly investigated your prevailing wage complaint filed against
< < CONTRACTOR> > on the above - referenced project.
< <CHOSE THE FOLLOWING RESPONSES> >
OPTION 1. A thorough investigation was conducted, and City of Rancho Palos Verdes does not have
sufficient evidence to support your claim. Therefore, the prevailing wage complaint on the above -
mentioned case is closed as of <<Date >>, without further action.
OPTION 2. Based on a review of all available information, City of Rancho Palos Verdes has concluded
that your work as a <<supervisor /foreman /superr ntendant>> on the projects is not subject to the
prevailing wage laws. Accordingly, City of Rancho Palos Verdes will take no further action regarding your
complaint.
If you have any questions regarding the investigation, please contact me at <<PHONE NUMBER>> or
< <ADDRESS> >.
Sincerely,
< <ASSIGNED INVESTIGATOR> >
<< LE> >
cc:
Certified Mail No(s): «CERTIFIED MAIL NUMBER>> /Return Receipt Requested
City of Rancho Palos Verdes
Labor Compliance Department Resolution No. 2012 -93
30940 Hawthorne Blvd., Rancho Palos Verdes, CA 90275 -5391 Exhibit A
Telephone: (310) 544 -5252• Fax: (310) 544 -5292 Page 35 of 84
City of Rancho Palos Verdes
Labor Compliance Program
ATTACHMENT C
«Date» (send within ten days after the complaint has been resolved)
< < Complainant> >
« Address> >
• <Address> >
RE: Case No.:
< <Case No. > >
Project:
< < Project> >
Contract No.:
< < Contract No. > >
Alleged Contractor:
< < Name> >
Dear «Complainant >>:
The City of Rancho Palos Verdes has completed its investigation on the above - referenced audit and is
holding your cashier's check in the amount of $ <<Amount >>. Upon receipt of this letter, you must
come to the address listed below between the hours of 8:30 a.m. and 4:00 p.m., Monday through Friday,
by <<DATE>> :
City of Rancho Palos Verdes
34940 Hawthorne Blvd,
Rancho Palos Verdes, CA 90275 -5391
PLEASE COME PREPARED TO PROVIDE VALID IDENTIFICATION (CALIFORNIA DRIVER LICENSE) AND A
SOCIAL SECURITY CARD.
If you are unable to come to the above office within the specified time frame, please sign the attached
Receipt, photocopy of a valid identification, social security card and mail them to the attention of
<<INVESIGATOR NAME>> at the above address. Your cashier's check will then be sent to you via
Certified Mail. This option is offered as a convenience only, and in no way guarantees delivery of back
wages. For a guarantee receipt of wages, you must pick up your cashier's check in person.
If you do not contact this office by <<DATE >>, we will forward your check to the State Labor
Commissioner's office. If there are further questions regarding this matter, please contact me at
<<PHONE NUMBER ».
Sincerely,
<<INVESTIGATOR NAME>>
< <TITL.E> >
cc:
City of Rancho Palos Verdes Resolution No. 2012 -93
Labor Compliance Department
30940 Hawthorne Blvd., Rancho Palos Verdes, CA 90275 -5391 Exhibit A
Telephone: (310) 544 -5252• Fax: (310) 544 -5292 Page 36 of 84
To: Attn: <<Investigador Name>>
City of Rancho Palos Verdes
Labor Compliance Department
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275 -5391
Case No.:
Project:
Contract No.:
Alleged Contractor:
<<Case No.>>
<<Project>>
<<Contract No.>>
<<Name>
I, , would like to have the cashier's check mail to the following address:
Print Name
Enclosed are copies of my valid Identification and Social Security cards. I understand that this option was offered to
me as a convenience only, and in no way guarantees delivery of the check. For a guarantee receipt of back wages, I
must pick up the cashier's check "n person.
Signature
Social Security Number
Date
Yo solicito que por favor me envien par correo el cheque
Nombre
de caj ero a la siguiente direccion:
Adjunto envio copias de mi tar eta valida de identilicacion y tar eta del seguro social. Yo entiendo que esta opcion
se me ofrece pars mi conveniencia solamente y que no me garantiza la entrega del cheque. Para asurarme de recibir
mi dinero, debo de recogerlo personahmente.
Firma
Numeeo de Seguro Social
Fecha
Resolution No. 2012 -93
Exhibit A
Page 37 of 84
City of Rancho Palos Verdes
Labor Compliance Program
«Date» (Send at least once every 30 days for a complaint that hasn't been resolved)
<<Complainant>>
«Address> >
«Address> >
Re: Case No:
Project:
Contract No:
Alleged Contractor:
Dear <<Complainant >>:
<<CASE NUMBER>>
< < PROJ ECT> >
<<CONTRACT NUMBER>>
< < CONTRACTOR> >
ATTACHMENT C
The City of Rancho Palos Verdes would like to provide an update on your received prevailing wage
complaint against <<CONTRACTOR>> on the above - referenced project.
This case is currently <<ENTER STATUS>>
If you have any questions regarding the investigation or complaint process, please contact me at
<<PHONE NUMBER>> or <<ADDRESS».
Sincerely,
< <ASSIGNED INVESTIGATOR> >
<< LE > >
cc:
Certified Mail No(s): «CERTIFIED MAIL NUMBER>> /Return Receipt Requested
City of Rancho Palos Verdes
Labor Compliance Department Resolution No. 2012 -93
30940 Hawthorne Blvd., Rancho Palos Verdes, CA 90275 -5391 Exhibit A
Telephone: (310) 544 -5252 Fax: (310) 544 -5292 Page 38 of 84
City of Rancho Palos Verdes
Labor Compliance Program
ATTACHMENT C
«Date» (Send at least once every 90 days that has been resolved by the LCP but remains under
review by another entity)
<<Complainant>>
< <Address> >
< <Add ress > >
Re: Case No:
Project:
Contract No:
Alleged Contractor:
Dear <<Complainant >>:
<<CASE NUMBER>>
< <PROJECT> >
<<CONTRACT NUMBER>>
< <CONTRACTOR> >
The City of Rancho Palos Verdes would like to provide an update on your received prevailing wage
complaint against < <CONTRACTOR> > on the above - referenced project. This case has been
submitted for < < REVIEW or LITIGATION > > before < < NAME of ORGANIZATION > > .
This current status of the <<REVIEW or LITIGATION >> is <<ENTER STATUS>>
If you have any questions regarding the investigation or complaint process, please contact me at
<<PHONE NUMBER>> or «ADDRESS »J1
Sincerely,
< <ASSIGNED INVES"TIGATOR> >
< <TITLE > >
cc:
Certified Mail No(s): «CERTIFIED MAIL NUMBER>> /Return Receipt Requested
City of Rancho Palos Verdes
Labor Compliance Department Resolution No. 2012 -93
30940 Hawthorne Blvd., Rancho Palos Verdes, CA 90275 -5391 Exhibit A
Telephone: (310) 544 -52529 Fax: (310) 544 -5292 Page 39 of 84
ATTACHMENT D
Suggested Single Project Labor Compliance Review and Enforcement Report Form
[Appendix C following 8 CCR § 16434]
Awarding Body:
Project Name:
Name of Approved Labor Compliance Program:
Bid Advertisement Date:
Acceptance Date:
Notice of Completion recordation Date:
SuMMM of Labor Compliance Activities
1. Contract Documents Containing Prevailing Wage Requirements (Identify)
2. Prejob Conference(s) -- Attach list(s) of attendees and dates
3. Notification to Project Workers of Labor Compliance Program's Contact Person. (Explain
Manner of Notification for each project work site.)
4. Certified Payroll Record Review
a. CPRs Received From:
Contractor /Subcontractor For weeks ending( "w /e "), through w/e
Resolution No. 2012 -93
Exhibit A
Page 40 of 84
b. Classifications identified in CPRs and applicable Prevailing Wage Determinations
Classification Determination No.
S. Further investigation or audit due to CPR review, information or complaint from worker or other
interested person, or other reason:
a. Independent Confirmation of CPR Data
Worker Interviews Reconciled CPRs with Pay -
Contractor /Subcontractor _ Qes/No) checks or Stubs es/No)
b. Employer Payments (Health & Welfare, Pension, Vacation/Holiday) Confirmation
Recipients of Written confirmation
Contractor /Subcontractor Emuloyer Payments Obtained Me
s/No)
C. Contributions to California Apprenticeship Council or Other Approved Apprenticeship
Program
Recipients of Written confirmation
Contractor /Subcontractor Contributions Obtained (Yes/No)
Resolution No. 2012 -93
Exhibit A
Page 41 of 84
d. Additional Wage Payments or Training Fund Contributions Resulting from Review of
CPRs
Additional amounts Additional Expla-
Contractor /Subcontractor Paid to Workers TraininLy Fund nation
*
*
* Use separate page(s) for explanation
6. Complaints Received Alleging Noncompliance with Prevailing wage Requirements.
Name of Resolution or
Complainant Date Received Current Status
*Use separate page(s) to explain resolution or current status
7. Requests for Approval of Forfeiture to Labor Commissioner
Contractor /Subcontractor Date of Request Approved /Modified /Denied
8. Litigation Pending Under Labor Code Section 1742
Contractor /Subcontractor DIR Case Number
9. (Check one) : Final report this project Annual report this project
Authorized Representative for Labor Compliance Program
Resolution No. 2012 -93
Exhibit A
Page 42 of 84
ATTACHMENT E
City of Rancho Palos Verdes
Work performed in County of:
Labor Compliance Department
Prime Contractor:
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275 -5391
Telephone: (310) 544 -5252
Fax: (310) 544 ^5292
Date:
Case or Contract No.:
NOTICE OF TEMPORARY WITHHOLDING OF CONTRACT PAYMENTS DUE
TO DELINQUENT OR INADEQUATE PAYROLL RECORDS (8 CCR §16435)
Awarding Body:
Work performed in County of:
Project Name and Number (if any):
Prime Contractor:
Subcontractor:
Pursuant to Labor Code §1771.5(b)(5) and 8 CCR §16435, contract payments are being withheld due to
delinquent or inadequate payroll records.
Contractor or subcontractor whose payroll records are delinquent or inadequate:
❑ The following payroll records are delinquent (specify weeks and due dates):
❑ The following payroll records are inadequate (specify weeks and ways in which records are
deemed inadequate under 8 CCR § 1643 5 (d)):
Estimated amount of contract payments due to contractor or subcontractor that are being withheld
pursuant to this Notice:
See page 2 for additional information, including appeal rights.
Labor Compliance Officer
Resolution No. 2012 -93
Exhibit A
Page 43 of 84
Prime Contractor obligations: If contract payments are being withheld due to the delinquency or
inadequacy of your subcontractor's payroll records, you are required to cease all payments to that
subcontractor until the Labor Compliance Program provides notice that the subcontractor has cured the
delinquency or deficiency.
Notice of Right to Obtain Review — Expedited Hearing
An affected contractor or subcontractor may request review an expedited hearing to review this Notice
of Withholding of Contract Payments under Labor Code § 1742. The only issue an any such review
proceeding is whether the specified payroll records are in fact delinquent or inadequate within the
meaning of 8 CCR X16435 or whether the Labor Compliance Program has exceeded its authority under
8 CCR ,¢16435. To obtain an expedited hearing, a written request must be transmitted to the both
the Labor Compliance Program and to the Lead Hearing Officer for the Director of the
Department of Industrial Relations, as follows:
[Name of Labor Compliance Officer,
address, and fax number]
Office of the Director —Legal Unit
Attention: Lead Hearing Officer
Expedited Hearing Request
Fax to: (415) 703 -4277
The request for expedited hearing should specify the basis for challenging this Notice and include a copy
of this Notice as an attachment. The request should also identify and provide contact information for the
person who will represent the contractor or subcontractor at the hearing.
Important Additional Information: This is a Notice of Temporary Withholding of Contract Payments
for Delinquent or Inadequate Payroll Records only. This is not a determination of liability for wages or
penalties under Labor Code §§ 1775 and 1776 or any other statute. Contract payments cannot continue
to be withheld pursuant to this notice, once the required records have been produced. However, the
contractor and subcontractor may still be subject to the assessment of back wages and penalties and the
withholding of contract payments if, upon investigation, a determination is made that the contractor or
subcontractor violated the public works requirements of the Labor Code.
This Notice only addresses rights and responsibilities under state law. Awarding bodies, labor
compliance programs, and contractors may have other rights or responsibilities under federal or local
law, where applicable, and may also have additional rights or remedies under the public works contract.
Resolution No. 2012 -93
Exhibit A
Page 44 of 84
Enclosure —text of 8 CCR § 16435
§16435. Withholding Contract Payments When Payroll Records are Delinquent or Inadequate.
(a) "Withhold" means to cease payments by the Awarding Body, or others who pay on its behalf, or agents, to the
general contractor. Where the violation is by a subcontractor, the general contractor shall be notified of the nature
of the violation and reference made to its rights under Labor Code Section 1729.
(b) "Contracts." Except as otherwise provided by agreement, only contracts under a single master contract,
including a Design -Build contract, or contracts entered into as stages of a single project, maybe the subject of
withholding.
(c) "Delinquent payroll records" means those not submitted on the date set in the contract.
(d) "Inadequate payroll records" are any one of the following:
(1) A record lacking any of the information required by Labor Code Section 1776;
(2) A record which contains all of the required information but is not certified, or is certified by someone who is
not an agent of the contractor or subcontractor;
(3) A record remaining uncorrected for one payroll period after the Labor Compliance Program has given the
contractor or subcontractor notice of inaccuracies detected by audit or record review. However, prompt
correction will stop any duty to withhold if such inaccuracies do not amount to one (1) percent of the entire
Certified Weekly Payroll in dollar value and do not affect more than half the persons listed as workers employed
on that Certified Weekly Payroll, as defined in Labor Code Section 1776 and section 16401 of Title 8 of the
California Code of Regulations.
(e) The withholding of contract payments when payroll records are delinquent or inadequate is required by Labor
Code Section 1771.5(b)(5), and it does not require the prior approval of the Labor Commissioner. The Awarding
Body shall only withhold those payments due or estimated to be due to the contractor or subcontractor whose
payroll records are delinquent or inadequate, plus any additional amount that the Labor Compliance Program has
reasonable cause to believe may be needed to cover a back wage and penalty assessment against the contractor or
subcontractor whose payroll records are delinquent or inadequate; provided that a contractor shall be required in
turn to cease all payments to a subcontractor whose payroll records are delinquent or inadequate until the Labor
Compliance Program provides notice that the subcontractor has cured the delinquency or deficiency.
(f) When contract payments are withheld under this section, the Labor Compliance Program shall provide the
contractor and subcontractor, if applicable, with immediate written notice that includes all of the following: (1) a
statement that payments are being withheld due to delinquent or inadequate payroll records, and that identifies
what records are missing or states why records that have been submitted are deemed inadequate; (2) specifies the
amount being withheld; and (3) informs the contractor or subcontractor of the right to request an expedited
hearing to review the withholding of contract payments under Labor Code Section 1742, limited to the issue of
whether the records are delinquent or inadequate or the Labor Compliance Program has exceeded its authority
under this section.
(g) No contract payments shall be withheld solely on the basis of delinquent or inadequate payroll records after
the required records have been produced.
(h) In addition to withholding contract payments based on delinquent or inadequate payroll records, penalties
shall be assessed under Labor Code Section 1776(g) for failure to timely comply with a written request for
certified payroll records. The assessment of penalties under Labor Code Section 1776(g) does require the prior
approval of the Labor Commissioner under section 16436 of these regulations.
Resolution No. 2012 -93
Exhibit A
Page 45 of 84
ATTACHMENT F
REQUEST FOR APPROVAL OF FORFEITiJRE -- Suggested format
10 AWARDING BODY LCP:
Name and Contact Information:
<<NAME>>
City of Rancho Palos Verdes
Director of Public Works
Labor Compliance Department
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275 -5391
Telephone: (310) 544 -5252• Fax: (310) 544 -5292
2. PROJECT INFORMATION:
Date of Request:
Project Name:
Contract Number:
Project Location:
Bid Advertisement Dates:
Estimated Date Project is to be completed:
Acceptance Date of Project by the Awarding
Body:
Notice of Completion/Date Recorded with County
Recorder:
Other Relevant Deadline (specify):
Amount being held in Retention:
3. CONTRACTOR INFORMATION:
Name and address of Affected Contractor: I Name and address of Affected Subcontractor:
General Description of Scope of Work of the Entire Project:
General Description of Scope of Work covered in the proposed Forfeiture (describe and attach relevant
portions of contract or subcontract):
Resolution No. 2012 -93
Exhibit A
Page 46 of 84
4. LABOR COMPLIANCE PROGRAM INVESTIGATION AND FINDINGS:
Total Amount of Request for Notice of Withholding of Contract Payments:
Wages Due:
Training Funds
Total Penalties Due:
Potential Liquidated Damages
Due:
[Wages +Training Funds]:
LC 1775 Penalties Due:
LC 1813 Penalties
LC 1776 Penalties Due:
Other:
Due:
[Provide narrative summaries covering the following]
A. Statement of Issues.
B. Investigative Report (detailed narrative including but not limited to how the investigation was
conducted including worker declarations, reviewing certified payroll records, verification of employer
payment contributions, etc).
C. Audit Report (detailed explanation of how audit was completed addressing each of the issues above).
D. Affected contractor and subcontractor information (how affected contractor and subcontractor were
informed ofpotential violations; summary of their response with respect to violations andpenalty issues;
and any other information considered in determining recommended penalties).
E. Recommended penalties under Labor Code Section 1775(a) and basis for recommendation,
including how factors in subsection (a)(2) of Section 1775 were applied to arrive at the recommended
amount(s).
ATTACHMENTS
1. Audit Summary (Appendix B)
2. 1t Bid Advertisement Publication
3. Notice of Completion
4. Scope of Work
5. Complaint forms) and Declarations, if any
Send the Request and all Attachments to:
Division of Labor Standards Enforcement
Bureau of Field Enforcement
Attn.: Regional Manager
300 Oceangate Blvd., No. 850
Long Beach, CA 90802
COPIES OF THIS REQUEST, INCLUDING ALL ATTACHMENTS, SHALL BE SERVED ON
THE AFFECTED CONTRACTOR AND AFFECTED SUBCONTRACTOR AT THE SAME TIME
THAT IT IS SENT TO THE DIVISION OF LABOR STANDARDS ENFORCEMENT.
Resolution No. 2012 -93
Exhibit A
Page 47 of 84
ATTACHMENT G
Labor Compliance Program
City of Rancho Palos Verdes
(Send by both first class and certified
Director of Public Works
mail to the affected contractor and
Labor Compliance Department
subcontractor, if applicable, and by
30940 Hawthorne Blvd.
certified mail to the bonding
Rancho Palos Verdes, CA 90275 -5391
company)
Telephone: (310) 544 -5252• Fax: (310) 544 -5292
Date:
In Reply Refer to Case No.:
Notice of Withholding of Contract Payments
Awarding Body City of Rancho Palos Verdes 3 Work Performed in County of Los Angeles
Project Name 3 Project No.
Prime Contractor
Subcontractor
After an investigation concerning the payment of Wages to Workers employed in the execution of the Contract
for the above -named public works project, the Labor Compliance Program for The City of Rancho Palos
Verdes has determined that violations of the California Labor Code have been committed by the contractor
and/or subcontractor identified above. In accordance with Labor Code sections 1771.5 and 1771.6, the
Labor Compliance Program hereby issues this Notice of Withholding of Contract Payments.
The nature of the violations of the Labor Code and the basis for the assessment are as follows:
The Labor Compliance Program has determined that the total amount of wages due is:
The Labor Compliance Program has determined that the total amount of penalties assessed under Labor
Code sections 1775 and 1813 is: $
The Labor Compliance Program has determined that the amount of penalties assessed under Labor Code
section 1776 is: $
LABOR COMPLIANCE PROGRAM
0
Resolution No. 2012 -93
Exhibit A
Page 48 of 84
Notice of Right to Obtain Review - Formal Bearing
In accordance with Labor Code sections 1742 and 1771.6, an affected contractor or subcontractor may obtain
review of this Notice of Withholding of Contract Payments by transmitting a written request to the office of
the Labor Compliance Program that appears below within 60 days after service of the notice. To obtain a
hearing, a written Request for Review must be transmitted to the following address:
Review Office- Notice of withholding of Contract Payments:
Labor Compliance Program
City of Rancho Palos Verdes
Director of Public Works
Labor Compliance Department
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275 -5391
A Request for Review either shall clearly identify the Notice of withholding of Contract Payments' from
which review is sought, including the date of the notice, or it shall include a copy of the notice as an
attachment, and shall also set forth the basis upon which the notice is being contested. In accordance with
Labor Code section 1742, the contractor or subcontractor shall be provided an opportunity to review
evidence to be utilized by the Labor Compliance Program at the hearing within 20 days of the Labor
Compliance Program's receipt of the written Request for Review.
Failure by a contractor or subcontractor to submit a timely Request for
Review will result in a final order which shall be binding on the
contractor and subcontractor, and which shall also be binding, with
respect to the amount due, on a bonding company issuing a bond that
secures the payment of wages and a surety on a bond. Labor Code
section 1743.
In accordance with Labor Code section 1742(d), a certified copy of a final order maybe 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.
(continued on next page)
Resolution No. 2012 -93
Exhibit A
Page 49 of 84
Opportunity for Settlement Meeting
In accordance with Labor Code Section 1742.1 (b), the Labor Compliance Program shall, upon receipt of a
request from the affected contractor or subcontractor within 30 days following the service of this Notice of
Withholding of Contract Payments, afford the contractor or subcontractor the opportunity to meet with the
Labor Compliance Program's designee to attempt to settle a dispute regarding the notice. The settlement
meeting may be held in person or by telephone and shall take place before the expiration of the 60 -day
period for seeking a hearing as set forth above under the heading Notice of Right to Obtain Review. No
evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, the
settlement meeting is admissible or sub 0 ect to discovery in any administrative or civil proceeding. No
writing prepared for the purpose of, in the course of, or pursuant to, the settlement meeting, other than a final
settlement agreement, is admissible or subject to discovery in any administrative or civil proceeding. This
opportunity to timely request an informal settlement meeting is in addition to the right to obtain a formal
hearing, and a settlement meeting may be requested even if a written Request for Review has already been
made. Requesting a settlement meeting, however, does not extend the 60 -day period during which a formal
hearing may be requested.
A written request to meet with the Labor Compliance Program's designee to attempt to settle a dispute
regarding this notice must be transmitted to The City of Rancho Palos Verdes at the following address:
Labor Compliance Program
City of Rancho Palos 'Verdes
Director of Public Works
Labor Compliance Department
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275 -5391
Liquidated Damages
In accordance with Labor Code section 1742. 1, after 60 days following the service of this Notice of
Withholding of Contract Payments, the affected contractor, subcontractor, and surety on a bond or bonds
issued to secure the payment of wages covered by the notice shall be liable for liquidated damages in an
amount equal to the wages, or portion thereof that still remain unpaid. If the notice subsequently is
overturned or modified after administrative or judicial review, liquidated damages shall be payable only on
the wages found to be due and unpaid. If the contractor or subcontractor demonstrates to the satisfaction of
the Director of the Department of Industrial Relations that he or she had substantial grounds for believing the
assessment or notice to be an error, the Director shall waive payment of the liquidated damages.
The Amount of Liquidated Damages Available Under this Notice is $
Distribution:
Prime Contractor
Subcontractor
Surety(s) on Bond
Attach:
Audit Summary
Proof of Service
Resolution No. 2012 -93
Exhibit A
Page 50 of 84
ATTACHMENT H
LABOR COMPLIANCE PROGRAM
Review Office - Notice of Withholding
of Contract Payments
(SEAL)
Phone:
Fax:
Date:
In Reply Refer to Case No.:
Notice of Transmittal
To: Department of Industrial Relations
Office of the Director -Legal Unit
Attention: Lead Hearing Officer
P. O. Box 420603
San Francisco, CA 94142-0603
Enclosed- herewith please find a Request for Review, dated , postmarked
, and received by this office on .
Also enclosed please find the following:
Copy of Notice of Withholding of Contract Payments
Copy of Audit Summary
LABOR COMPLLANCE PROGRAM
Us, a
cc: Prime Contractor
Subcontractor
Bonding Company
Please be advised that the Request for Review identified above has been received and
transmitted to the address indicated: Please be fitrther advised that the governing
procedures applicable to these hearings are set forth at Title 8, California Code of
Regulations sections 17201 - 17270. These hearings are not governed by Chapter 5 of
the Government Code, commencing with section 11500.
Resolution No. 2012 -93
Exhibit A
Page 51 of 84
ATTACHMENT I
LABOR COMPLIANCE PROGRAM
Review Office - Notice of withholding
of Contract Payments
(SEAL)
Phone:
Fax:
Date:
In Reply Refer to Case No.:
Nonce of Opportunity to Review Evidence Pursuant to Labor Code Section 1742(b)
To: Prime Contractor
Subcontractor
Please be advised that this office has received your Request for Review, dated ,
and pertaining to the Notice of Withholding of Contract Payments issued by the Labor
Compliance Program in Case No.
In accordance with Labor Code section 1742(b), this notice provides you with an opportunity to
review evidence to be utilized by the Labor Compliance Program at the hearing on the Request
for Review, and the procedures for reviewing such evidence.
Rule 17224 of the Prevailing Wage Hearing Regulations provides as follows:
A(a) Within ten (10) days following its receipt of a Request for Review, the
Enforcing Agency shall also notify the affected contractor or subcontractor of its
opportunity and the procedures for reviewing evidence to be utilized by the
Enforcing Agency at the hearing of the Request for Review.
(b) An Enforcing Agency shall be deemed to have provided the opportunity to
review evidence required by this Rule if it (1) gives the affected contractor or
subcontractor the option at said pasty's own expense to either (i) obtain copies of
all such evidence through a commercial copying service or (ii) inspect and copy
Resolution No. 2012 -93
Exhibit A
Page 52 of 84
ATTACHMENT
such evidence at the office of the Enforcing Agency during normal business
hours; or if (2) the Enforcing Agency at its own expense forwards copies of all
such evidence to the affected contractor or subcontractor.
(c) The evidence required to be provided under this Rule shall include the identity
of witnesses whose testimony the Enforcing Agency intends to present, either in
person at the hearing or by declaration or affidavit. This provision shall not be
construed as requiring the Enforcing Agency to prepare or provide any separate
listing of witnesses whose identities are disclosed within the written materials
made available under subpart (a).
(d) The Enforcing Agency shall make evidence available for review as specified
in subparts (a) through (c) within 20 days of its receipt of the Request for Review;
provided that, this deadline maybe extended by written request or agreement of
the affected contractor or subcontractor. The Enforcing Agency's failure to make
evidence available for review as required by Labor Code section 1742(b) and this
Rule, shall preclude the enforcing agency from introducing such evidence in
proceedings before the Hearing officer or the Director.
(e) This Rule shall not preclude the Enforcing Agency from relying upon or
presenting any evidence first obtained after the initial disclosure of evidence under
subparts (a) through (d), provided that, such evidence is promptly disclosed to the
affected contractor or subcontractor. This Rule also shall not preclude the
Enforcing Agency from presenting previously undisclosed evidence to rebut new
or collateral claims raised by another party in the proceeding.@
In accordance with the above Rule, please be advised that the Labor Compliance Program's
procedure for you to exercise your opportunity to review evidence is as follows:
Within five calendar days of the date of this notice, please transmit the
attached Request to Review Evidence to the following address:
Attention:
Resolution No. 2012 -93
Exhibit A
Page 53 of 84
ATTACHMENT I
Request to Review Evidence
To:
From:
Regarding Notice of Withholding of Contract Payments Dated
Our Case No.:
The undersigned hereby requests an opportunity to review evidence to be utilized
by the Labor Compliance Program at the hearing on the Request for Review.
Phone No.:
Fax No..
Resolution No. 2012 -93
Exhibit A
Page 54 of 84
ATTACHMENT J
LABOR CODE SECTION 1720 -1861
1720. (a) As used in this chapter, "public works" means:
(1) Construction, alteration, demolition, installation, or repair work
done under contract and paid for in whole or in part out of public funds,
except work done directly by any public utility company pursuant to order of
the Public Utilities Commission or other public authority. For purposes of
this paragraph, "construction" includes work performed during the design and
preconstruction phases of construction including, but not limited to,
inspection and land surveying work.
(2) Work done for irrigation, utility, reclamation, and improvement
districts, and other districts of this type. "Public work" does not include
the operation of the irrigation or drainage system of any irrigation or
reclamation district, except as used in Section. 1778 relating to retaining
wages.
(3) Street, sewer, or other improvement work done under the direction and
supervision or by the authority of any officer or public body of the state,
or of any political subdivision or district thereof, whether the political
subdivision or district operates under a freeholder's charter or not.
(4) The laying of carpet done under a building lease- maintenance contract
and paid for out of public funds.
(5 ) The laying of carpet in a public building done under contract and paid
for in whole or in part out of public funds.
(6) Public transportation demonstration projects authorized pursuant to
Section 143 of the Streets and Highways Code.
(b) For purposes of this section, "paid for in whole or in part out of
public funds" means all of the following:
(1) The payment of money or the equivalent of money by the state or
political subdivision directly to or on behalf of the public works
contractor, subcontractor, or developer.
(2) Performance of construction work by the state or political subdivision
in execution of the project.
(3) Transfer by the state or political subdivision of an asset of value
for less than fair market price.
(4) Fees, costs, rents, insurance or bond premiums, loans, interest rates,
or other obligations that would normally be required in the execution of the
contract, that are paid, reduced, charged at less than fair market value,
waived, or forgiven by the state or political subdivision.
(5) Money loaned by the state or political subdivision that is to be
repaid on a contingent basis.
(6 ) Credits that are applied by the state or political subdivision against
repayment obligations to the state or political subdivision.
(c) Notwithstanding subdivision (b) :
(1) Private residential projects built on private property are not subject
to the requirements of this chapter unless the projects are built pursuant to
an agreement with a state agency, redevelopment agency, or local public
housing authority.
(2) if the state or a political subdivision requ;.res a private developer
to perform construction, alteration, demolition, installation, or repair work
on a public work of improvement as a condition of regulatory approval of an
otherwise private development project, and the state or political subdivision
contributes no more money, or the equivalent of money, to the overall project
than is required to perform this public improvement work, and the state or
political subdivision maintains no proprietary interest in the overall
project, then only the public improvement work shall thereby become subject
to this chapter.
Resolution No. 2012 -93
Exhibit A
Page 55 of 84
(3) If the state or a political subdivision reimburses a private developer
for costs that would normally be borne by the public, or provides directly or
indirectly a public subsidy to a private development project that is de
minimis in the context of the project, an otherwise private development
project shall not thereby become subject to the requirements of this chapter.
(4) The construction or rehabilitation of affordable housing units for
low- or moderate- income persons pursuant to paragraph (5) or (7) of
subdivision (e) of Section 33334.2 of the Health and Safety Code that are
paid for solely with moneys from a Low and Moderate Income
Housing Fund established pursuant to Section 33334.3 of the Health and Safety
Code or that are paid for by a combination of private funds and funds
available pursuant to Section 33334.2 or 33334.3 of the Health and Safety
Code do not constitute a project that is paid for in whole or in part out of
public funds.
(5) "Paid for in whole or in part out of public funds" does not include
tax credits provided pursuant to Section 17053.49 or 23649 of the Revenue and
Taxation Code.
(6) Unless otherwise required by a public funding program, the
construction or rehabilitation of privately owned residential projects is not
subject -to the requirements of this chapter if one or more of the following
conditions are met:
(A) The project is a self -help housing project in which no fewer than 500
hours of construction work associated with the homes are to be performed by
the homebuyers.
(B) The project consists of rehabilitation or expansion work associated
with a facility operated on a not- for - profit basis as temporary or
transitional housing for homeless persons with a total project cost of less
than twenty -five thousand dollars ($25,000).
(C) Assistance is provided to a household as either mortgage assistance,
down payment assistance, or for the rehabilitation of a single -- family home.
(D) The project consists of new construction, or expansion, or
rehabilitation work associated with a facility developed by a nonprofit
organization to be operated on a not -for - profit basis to provide emergency or
transitional shelter and ancillary services and assistance to homeless adults
and children. The nonprofit organization operating the project shall
provide, at no profit, not less than 50 percent of the total project cost
from nonpublic sources, excluding real property that is transferred or
Leased. Total project cost includes the value of donated Labor, materials,
architectural, and engineering services.
(E) The public participation in the project that would otherwise meet the
criteria of subdivision (b) is public funding in the form of below- market
interest rate loans for a project in which occupancy of at least 4O. percent
of the units is restricted for at least 20 years, by deed or regulatory
agreement, to individuals or families earning no more than 80 percent of the
area median income.
(d) Notwithstanding any provision of this section to the contrary, the
following projects shall not, solely by reason of this section, be subject to
the requirements of this chapter:
(1) Qualified residential rental projects, as defined by Section
142 (d) of the Internal Revenue Code, financed in whole or in part through
the issuance of bonds that receive allocation of a portion of the state
ceiling pursuant to Chapter 11.8 of Division 1 (commencing with Section
8869.80) of the Government Code on or before December 31, 2003.
(2 ) Single - family residential projects financed in whole or in part
through the issuance of qualified mortgage revenue bonds or qualified
veterans' mortgage bonds, as defined by Section 143 of the Internal Revenue
Code, or with mortgage credit certificates under a Qualified Mortgage Credit
Certificate Program, as defined by Section 25 of the Internal Revenue Code,
that receive allocation of a portion of the state ceiling pursuant to Chapter
Resolution No. 2012 -93
Exhibit A
Page 56 of 84
11.8 of Division 1(commencing with Section 8869.80) of the Government Code on
or before December 31, 2003.
(3 ) Low-- income housing projects that are allocated federal or state low -
income housing tax credits pursuant to Section 42 of the Internal Revenue
Code, Chapter 3.6 of Division 31 (commencing with Section 50199.4) of the
Health and Safety Code, or Section 12206, 17058, or 23610.5 of the Revenue
and Taxation Code, on or before December 31, 2003.
(e) If a statute, other than this section, or a regulation, other than a
regulation adopted pursuant to this section, or an ordinance or a contract
applies this chapter to a project, the exclusions set forth in subdivision
(d) do not apply to that project.
(f) For purposes of this section, references to the Internal Revenue Code
mean the Internal Revenue Code of 1986, as amended, and include the
corresponding predecessor sections of the Internal Revenue Code of 1954, as
amended.
(g) The amendments made to this section by either Chapter 938 of the
Statutes of 2001 or the act adding this subdivision shall not be construed to
preempt local ordinances requiring the payment of prevailing wages on housing
projects.
1720.2. For the limited purposes of Article 2 (commencing with Section 1770)
of this chapter, "public works" also means any construction work done under
private contract when all of the following conditions exist:
(a) The construction contract is between private persons.
(b) The property subject to the construction contract is privately owned,
but upon completion of the construction work, more than 50 percent of the
assignable square feet of the property is leased to the state or a political
subdivision for its use.
(c) Either of the following conditions exist:
(1) The lease agreement between the lessor and the state or political
subdivision, as lessee, was entered into prior to the construction contract.
(2) The construction work is performed according to plans, specifications,
or criteria furnished by the state or political subdivision, and the lease
agreement between the lessor and the state or political subdivision, as
lessee, is entered into during, or upon completion of, the construction work.
1720.3. For the limited purposes of Article 2 (commencing with
Section 1770) , "public works" also means the hauling of refuse from a public
works site to an outside disposal location, with respect to contracts
involving any state agency, including the California State University and the
University of California, or any political subdivision of the state.
1720.4. (a) This chapter shall not apply to any of the following work:
(1) Any work performed by a volunteer. For purposes of this section,
"volunteer" means an individual who performs work for civic, charitable, or
humanitarian reasons for a public agency or corporation qualified under
Section 5 01 (c) (3 ) of the Internal Revenue Code as a tax -- exempt organization,
without promise, expectation, or receipt of any compensation for work
performed.
(A) An individual shall be considered a volunteer only when his or her
services are offered freely and without pressure and coercion, direct or
implied, from an employer.
(B) An individual may receive reasonable meals, lodging, transportation,
and incidental expenses or nominal nonmonetary awards without losing
volunteer status if, in the entire context of the situation, those benefits
and payments are not a substitute form of compensation for work performed.
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(C) An individual shall not be considered a volunteer if the person is
otherwise employed for compensation at any time (i) in the construction,
alteration, demolition, installation, repair, or maintenance work on the same
project, or (ii) by a contractor, other than a corporation qualified under
Section 501(c) (3 ) of the Internal
Revenue Code as a tax - exempt organization, that is receiving payment to
perform construction, alteration, demolition, installation, repair, or
maintenance work on the same project.
(2) Any work performed by a volunteer coordinator. For purposes of this
section, "volunteer coordinator" means an individual paid by a corporation
qualified under Section 501(c)(3) of the Internal Revenue Code as a tax -
exempt organization, to oversee or supervise volunteers. An individual may be
considered a volunteer coordinator even if the individual performs some
nonsupervisory work on a project alongside the volunteers, so long as the
individual's primary responsibility on the project is to oversee or supervise
the volunteers rather than to perform nonsupervisory work.
(3) Any work performed by members of the California Conservation
Corps or of Community Conservation Corps certified by the California
Conservation Corps pursuant to Section 14507.5 of the Public Resources Code.
(b) This section shall apply retroactively to otherwise covered work
concluded on or after January 1, 2002, to the extent permitted by law.
(c) on or before January 1, 2011, the director shall submit a written
report to the Legislature that does both of the following: .
(1) Describes the number and the nature of complaints received and
investigations conducted involving the use of volunteers on public works
projects subject to this chapter, that are projects as described in Section
21190 of the Public Resources Code.
(2) Provides an estimate of each of the following as they relate to public
works projects that involve the acquisition, presentation, or restoration of
natural areas, including parks or ecological reserves, or other public works
projects that have one or more of the purposes, as described in Section 21190
of the Public Resources
Code:
(A.) The number of hours per year that volunteers work on public works
projects.
(B) The cost per year of public works projects, that are projects as
described in Section 21190 of the Public Resources Code, and the percentage
of work performed by volunteers.
(C) The types of work done by volunteers on public works projects, that
are projects as described in Section 21190 of the Public Resources Code.
(d) The sum of one hundred thousand dollars ($100,000) is hereby
appropriated from the Environmental License Plate Fund for the purposes of
funding the report required pursuant to subdivision (c).
(e) This section shall remain in effect only until January 1,
2012, and as of that date is repealed, unless a later enacted statute, which
is enacted before January 1, 2012, deletes or extends that date.
1721. "Political subdivision" includes any county, city, district, public
housing authority, or public agency of the state, and assessment or
improvement districts.
1722. "Awarding body" or "body awarding the contract" means department,
board, authority, officer or agent awarding a contract for public work.
1722.1. For the purposes of this chapter, "contractor" and "subcontractor"
include a contractor, subcontractor, licensee, officer, agent, or
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representative thereof, acting in that capacity, when working on public works
pursuant to this article and Article 2
(commencing with Section 1770).
1723. "Worker" includes laborer, worker, or mechanic.
1724. "Locality in which public work is performed" means the county in which
the public work is done in cases in which the contract is awarded by the
State, and means the limits of the political subdivision on whose behalf the
contract is awarded in other cases.
1725. "Alien" means any person who is not a born or fully naturalized
citizen of the United States.
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.
1727. (a) Before making payments to the contractor of money due under a
contract for public work, the awarding body shall withhold and retain there
from all amounts required to satisfy any civil wage and penalty assessment
issued by the Labor Commissioner under this chapter. The amounts required to
satisfy a civil wage and penalty assessment shall not be disbursed by the
awarding body until receipt of a final order that is no longer subject to
judicial review.
(b) If the awarding body has not retained sufficient money under the
contract to satisfy a civil wage and penalty assessment based on a
subcontractor's violations, the contractor shall, upon the request of the
Labor Commissioner, withhold sufficient money due the subcontractor under the
contract to satisfy the assessment and transfer the money to the awarding
body. These amounts shall not be disbursed by the awarding body until
receipt of a final order that isno longer subject to judicial review.
1728. In cases of contracts with assessment or improvement districts where
full payment is made in the form of a single warrant, or other evidence of
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full payment, after completion and acceptance of the work, the awarding body
shall accept from the contractor in cash a sum equal to, and in lieu of, any
amount required to be withheld, retained, or forfeited under the provisions
of this section, and said awarding body shall then release the final warrant
or payment in full.
1729. It shall be lawful for any contractor to withhold from any
subcontractor under him sufficient sums to cover any penalties withheld from
him by the awarding body on account of the subcontractor's failure to comply
with the terms of this chapter, and if payment has already been made to the
subcontractor the contractor may recover from him the amount of the penalty
or forfeiture in a suit at law.
1734. Any court collecting any fines or penalties under the criminal
provisions of this chapter or any of the labor laws pertaining to public
works shall as soon as practicable after the receipt thereof deposit same
with the county treasurer of the county in which such court is situated.
Amounts -so deposited shall be paid at least once a month by warrant of the
county auditor drawn upon requisition of the judge or clerk of said court, to
the State Treasurer for deposit in the General Fund.
1735. A contractor shall not discriminate in the employment of persons upon
public works on any basis listed in subdivision (a) of Section 12940 of the
Government Code, as those bases are defined in Sections 12926 and 12926.1 of
the Government Code, except as otherwise provided in Section 12940 of the
Government Code. Every contractor for public works who violates this section
is subject to all the penalties imposed for a violation of this chapter.
1736. During any investigation conducted under this part, the Division of
Labor Standards Enforcement shall keep confidential the name of any employee
who reports a violation of this chapter and any other information that may
identify the employee.
1740. Notwithstanding any other provision of this chapter or any other law
of this State, except limitations imposed by the Constitution, the
legislative body of a political subdivision which has received or is to
receive a loan or grant of funds from the Federal Government or a federal
department or agency for public works of that political subdivision, may
provide in its call for bids in connection with such public works that all
bid specifications and contracts and other procedures in connection with bids
or contracts shall be subject to modification to comply with revisions in
federal minimum wage schedules without the necessity of republication or
duplication of other formal statutory requirements.
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
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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. 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.
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) 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 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 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.
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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.
The director shall adopt regulations setting forth procedures for hearings
under this subdivision.
(c) 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.
(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 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.
1742.1. (a) After 60 days following the service of a civil wage and penalty
assessment under Section 1741 or a notice of withholding under subdivision
(a) of Section 1771.6, the affected contractor, subcontractor, and surety on
a bond or bonds issued to secure the payment of wages covered by the
assessment or notice shall be liable for liquidated damages in an amount
equal to the wages, or portion thereof, that still remain unpaid. If the
assessment or notice subsequently is overturned or modified after
administrative or judicial review, liquidated damages shall be payable only
on the wages found to be due and unpaid.
Additionally, if the contractor or subcontractor demonstrates to the
satisfaction of the director that he or she had substantial grounds for
appealing the assessment or notice with respect to a portion of the unpaid
wages covered by the assessment or notice, the director may exercise his or
her discretion to waive payment of the liquidated damages with respect to
that portion of the unpaid wages. Any liquidated damages shall be distributed
to the employee along with the unpaid wages. Section 203.5 shall not apply to
claims for prevailing wages under this chapter.
(b) Notwithstanding subdivision (a), there shall be no liability for
liquidated damages if the full amount of the assessment or notice, including
penalties, has been deposited with the Department of Industrial Relations,
within 60 days following service of the assessment or notice, for the
department to hold in escrow pending administrative and judicial review. The
department shall release such funds, plus any interest earned, at the
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conclusion of all administrative and judicial review to the persons and
entities who are found to be entitled to such funds.
(c) The Labor Commissioner shall, upon receipt of a request from the
affected contractor or subcontractor within 30 days following the service of
a civil wage and penalty assessment under Section 1741, afford the contractor
or subcontractor the opportunity to meet with the Labor Commissioner or his
or her designee to attempt to settle a dispute regarding the assessment
without the need for formal proceedings. The awarding body shall, upon
receipt of a request from the affected contractor or subcontractor within 30
days following the service of a notice of withholding under subdivision (a)
of Section 1771.6, afford the contractor or subcontractor the opportunity to
meet with the designee of the awarding body to attempt to settle a dispute
regarding the notice without the need for formal proceedings. The settlement
meeting may be held in person or by telephone and shall take place before the
expiration of the 60 -day period for seeking administrative review. No
evidence of anything said or any admission made for the purpose of, in the
course of, or pursuant to, the settlement meeting is admissible or subject to
discovery in any administrative or civil proceeding. No writing prepared for
the purpose of, in the course of, or pursuant to, the settlement meeting,
other than a final settlement agreement, is admissible or subject to
discovery in any administrative or civil proceeding. The assessment or notice
shall advise the contractor or subcontractor of the opportunity to request a
settlement meeting.
(d) This section shall become operative on January 1, 2007.
1743. (a) The contractor and subcontractor shall be jointly and severally
liable for all amounts due pursuant to a final order under this chapter or a
judgment thereon. The Labor Commissioner shall first exhaust all reasonable
remedies to collect the amount due from the subcontractor before pursuing the
claim against the contractor.
(b) From the amount collected, the wage claim shall be satisfied prior to
the amount being applied to penalties. If insufficient money is recovered to
pay each worker in full, the money shall be prorated among all workers.
(c) Wages for workers who cannot be located shall be placed in the
Industrial Relations Unpaid Wage Fund and held in trust for the workers
pursuant to Section 96.7. Penalties shall be paid into the General Fund.
(d) A final order under this chapter or a judgment thereon shall be
binding, with respect to the amount found to be due, on a bonding company
issuing a bond that secures the payment of wages and a surety on a bond. The
limitations period of any action on a payment bond shall be tolled pending a
final order that is no longer subject to judicial review.
1750. (a) (1) The second lowest bidder, and any person, firm, association,
trust, partnership, labor organization, corporation, or other legal entity
which has, prior to the letting of the bids on the public works project in
question, entered into a contract with the second lowest bidder, that suffers
damage as a proximate result of a competitive bid for a public works project,
as defined in subdivision
(b), not being accepted due to the successful bidder's violation, as
evidenced by the conviction of the successful bidder therefore, of any
provision of Division 4 (commencing with Section 3200) or of the
Unemployment Insurance Code, may bring an action for damages in the
appropriate state court against the violating person or legal entity.
(2) There shall be a rebuttable presumption that a successful bidder who
has been convicted of a violation of any provision of Division 4 (commencing
with Section 3200) of this code or of the Unemployment Insurance Code, or of
both, was awarded the bid because that successful bidder was able to lower
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the bid due to this violation or these violations occurring on the contract
for public work awarded by the public agency.
(b) For purposes of this article:
(1) "Public works project" means the construction, repair, remodeling,
alteration, conversion, modernization, improvement, rehabilitation,
replacement, or renovation of a public building or structure.
(2 ) "Second lowest bidder" means the second lowest qualified bidder deemed
responsive by the public agency awarding the contract for public work.
(3) The "second lowest bidder" and the "successful bidder" may include any
person, firm, association, corporation, or other legal entity.
(c) In an action brought pursuant to this section, the court may award
costs and reasonable attorney's fees, in an amount to be determined in the
court's discretion, to the prevailing party.
(d) For purposes of an action brought pursuant to this section, employee
status shall be determined pursuant to Division 4(commencing with Section
3200) with respect to alleged violations of that division, pursuant to the
Unemployment Insurance Code with respect to alleged violations of that code,
and pursuant to Section 2750.5 with respect to alleged violations of either
Division 4 (commencing with Section 3200) or of the Unemployment Insurance
Code. •
(e) The right of action established pursuant to this article shall not be
construed to diminish rights of action established pursuant to Section 19102
of, and Article 1.8 (commencing with Section 20104.70) of Chapter l of Part 3
of Division 2 of, the Public Contract Code.
(f) A second lowest bidder who has been convicted of a violation of any
provision of Division 4 (commencing with Section 3200) of the Labor Code or
of the Unemployment Insurance Code, or both, within one year prior to filing
the bid for public work, and who has failed to take affirmative steps to
correct that violation or those violations, is prohibited from taking any
action authorized by this section.
1770. The Director of the Department of Industrial Relations shall determine
the general prevailing rate of per diem wages in accordance with the
standards set forth in Section 1773, and the director's determination in the
matter shall be final except as provided in Section 1773.4. Nothing in this
article, however, shall prohibit the payment of more than the general
prevailing rate of wages to any workman employed on public work. Nothing in
this act shall permit any overtime work in violation of Article 3 of this
chapter.
1771. Except for public works projects of one thousand dollars ($1,000) or
less, not less than the general prevailing rate of per diem wages for work of
a similar character in the locality in which the public work is performed,
and not less than the general prevailing rate of per diem wages for holiday
and overtime work fixed as provided in this chapter, shall be paid to all
workers employed on public works.
This section is applicable only to work performed under contract, and is
not applicable to work carried out by a public agency with its own forces.
This section is applicable to contracts let for maintenance work.
1771.2. 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
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public work or some part thereof was performed, or not later than 180 days
after acceptance of the public work, whichever last occurs.
1771.5. (a) Notwithstanding Section 1771, an awarding body may not require
the payment of the general prevailing rate of per diem wages or the general
prevailing rate of per diem wages for holiday and overtime work for any
public works project of twenty -five thousand dollars ($25,000) or less when
the project is for construction work, or for any public works project of
fifteen thousand dollars ($15,000) or less when the project is for
alteration, demolition, repair, or maintenance work, if the awarding body
elects to initiate and enforce a labor compliance program pursuant to
subdivision (b) for every public works project under the authority of the
awarding body.
(b) For the purposes of this section, a labor compliance program shall
include, but not be limited to, the following requirements:
(1) All bid invitations and public works contracts shall contain
appropriate language concerning the requirements of this chapter.
(2) A prejob conference shall be conducted with the contractor and
subcontractors to discuss federal and state labor law requirements applicable
to the contract.
(3) Project contractors and subcontractors shall maintain and furnish, at
a designated time, a certified copy of each weekly payroll containing a
statement of compliance signed under penalty of perjury.
(4) The awarding body shall review, and, if appropriate, audit payroll
records to verify compliance with this chapter.
(5) The awarding body shall withhold contract payments when payroll
records are delinquent or inadequate.
(6) The awarding body shall withhold contract payments equal to the amount
of underpayment and applicable penalties when, after investigation, it is
established that underpayment has occurred.
(c) For purposes of this chapter, "labor compliance program" means a labor
compliance program that is approved, as specified in state regulations, by
the Director-of the Department of Industrial Relations.
(d) For purposes of this chapter, the Director of the Department of
Industrial Relations may revoke the approval of a labor compliance program in
the manner specified in state regulations.
1771.6. (a) Any awarding body that enforces this chapter in accordance with
Section 1726 or 1771.5 shall provide notice of the withholding of contract
payments to the contractor and subcontractor, if applicable. The notice
shall be in writing and shall describe the nature of the violation and the
amount of wages, penalties, and forfeitures withheld. Service of the notice
shall be completed pursuant to Section 1013 of the Code of Civil Procedure by
first -class and certified mail to the contractor and subcontractor, if
applicable. The notice shall advise the contractor and subcontractor, if
applicable, of the procedure for obtaining review of the withholding of
contract payments.
The awarding body shall also serve a copy of the notice by certified mail
to any bonding company issuing a bond that secures the payment of wages
covered by the notice and to any surety on a bond, if their identities are
known to the awarding body.
(b) The withholding of contract payments in accordance with
Section 1726 or 1771.5 shall be reviewable under Section 1742 in the same
manner as if the notice of the withholding was a civil penalty order of the
Labor Commissioner under this chapter. If review is requested, the Labor
Commissioner may intervene to represent the awarding body.
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(c) Pending a final order, or the expiration of the time period for
seeking review of the notice of the withholding, the awarding body shall not
disburse any contract payments withheld.
(d) From the amount recovered, the wage claim shall be satisfied prior to
the amount being applied to penalties. If insufficient money is recovered to
pay each worker in full, the money shall be prorated among all workers.
(e) Wages for workers who cannot be located shall be placed in the
Industrial Relations Unpaid Wage Fund and held in trust for the workers
pursuant to Section 96.7. Penalties shall be paid into the General Fund of
the awarding body that has enforced this chapter pursuant to Section 1771.5.
1771.7. (a) (1) An awarding body that chooses to use funds derived from
either the Kindergarten - University Public Education Facilities
Bond Act of 2002 or the Kindergarten - University Public Education
Facilities Bond Act of 2004 for a public works project, shall initiate and
enforce, or contract with a third party to initiate and enforce, a labor
compliance program, as described in subdivision (b) of Section 1771.5, with
respect to that public works project.
(2) if an awarding body described in paragraph (1) chooses to contract
with a third party to initiate and enforce a labor compliance program for a
project described in paragraph (1), that third party shall not review the
payroll records of its own employees or the employees of its subcontractors,
and the awarding body or an independent third party shall review these
payroll records for purposes of the labor compliance program.
(b) This section applies to public works that commence on or after
April 1, 2003. For purposes of this subdivision, work performed during the
design and preconstruction phases of construction, including, but not limited
to, inspection and land surveying work, does not constitute the commencement
of a public work.
(c) (1) For purposes of this section, if any campus of the California
State University chooses to use the funds described in subdivision (a), then
the "awarding body" is the Chancellor of the California State University.
For purposes of this subdivision, if the chancellor is required by
subdivision (a) to initiate and enforce, or to contract with a third party to
initiate and enforce, the labor compliance program described in that
subdivision, then in addition to the requirements imposed upon an awarding
body by subdivision (b) of Section 1771.5, the Chancellor of the California
State University shall review the payroll records described in paragraphs (3)
and (4) of subdivision (b) of Section 1771.5 on at least a monthly basis to
ensure the awarding body's compliance with the labor compliance program.
(2) For purposes of this subdivision, if an awarding body described in
subdivision (a) is the University of California or any campus of that
university, and that awarding body is required by subdivision (a) to initiate
and enforce, or to contract with a third party to initiate and enforce, the
labor compliance program described in that subdivision, then in addition to
the requirements imposed upon an awarding body by subdivision (b) of Section
1771.5, the payroll records described in paragraphs (3) and (4) of
subdivision (b) of Section 1771.5 shall be reviewed on at least a monthly
basis to ensure the awarding body's compliance with the labor compliance
program.
(d) (1) An awarding body described in subdivision (a) shall make a written
finding that the awarding body has initiated and enforced, or has contracted
with a third party to initiate and enforce, the labor compliance program
described in subdivision (a) .
(2) (A) If an awarding body described in subdivision (a) is a school
district, the governing body of that district shall transmit to the State
Allocation Board, in the manner determined by that board, a copy of the
finding described in paragraph (1).
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(B) The State Allocation Board may not release the funds described in
subdivision (a) to an awarding body that is a school district until the State
Allocation Board has received the written finding described in paragraph (1).
(C) If the State Allocation Board conducts a postaward audit procedure
with respect to an award of the funds described in subdivision (a) to an
awarding body that is a school district, the
State Allocation Board shall verify, in the manner determined by that board,
that the school district has complied with the requirements of this
subdivision.
(3) If an awarding body described in subdivision (a) is a community
college district, the Chancellor of the California State University, or the
office of the President of the University of California or any campus of the
University of California, that awarding body shall transmit, in the manner
determined by the Director of the Department of Industrial Relations, a copy
of the finding described in paragraph (1) to the director of that department,
or the director of any successor agency that is responsible for the oversight
of employee wage and employee work hours laws.
(e) Notwithstanding Section 17070.63 of the Education Code, for purposes
of this act, the State Allocation Board shall increase the grant amounts as
described in Chapter 12.5 (commencing with Section
17070.10) of Part 10 of Division 1 of Title 1 of the Education Code to
accommodate the state's share of the increased costs of a new construction or
modernization project due to the initiation and enforcement of the labor
compliance program.
1771.8. (a) The body awarding any contract for a public works
project financed in any part with funds made available by the Water
Security, Clean Drinking Water, Coastal and Beach Protection Act of
2002 (Division 26.5 (commencing with Section 79500) of the Water
Code) shall adopt and enforce, or contract with a third party to adopt and
enforce, a labor compliance program pursuant to subdivision
(b) of Section 1771.5 for application to that public-works project.
(b) This section shall become operative only if the Water
Security, Clean Drinking Water, Coastal and Beach Protection Act of
2002 (Division 26.5 (commencing with Section 79500) of the Water
Code) is approved by the voters at the November 5, 2002, statewide general
election.
1771.9. (a) The body awarding any contract for a public works project
financed in any part with funds made available by the Safe, Reliable High -
Speed Passenger Train Bond Act for the 21st Century (Chapter 20 (commencing
with Section 2704) of Division 3 of the Streets and Highways Code) shall
adopt and enforce, or contract with a third party to adopt and enforce, a
labor compliance program pursuant to subdivision (b) of Section 1771.5 for
application to that public works project.
(b) This section shall become operative only if the Safe, Reliable
High -Speed Passenger Train Bond Act for the 21st Century (Chapter 20
(commencing with Section 2704) of Division 3 of the Streets and Highways
Code) is approved by the voters at the November 2, 2004, statewide general
election.
(c) The Department of Industrial Relations' and the Labor and
Workforce Development Agency's public works services provided to labor
compliance programs, interested parties, and awarding bodies associated with
bond funding projects, that are governed by the public works requirements of
this chapter, are to be supported as costs of a state agency with
responsibility for administration of the bond program, or costs of
construction, under subdivisions (a) and (d) of Section 16727 of the
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Government Code. Public works services under this chapter include all of the
following:
(1) Prevailing wage measurement and setting.
(2) Wage petitions and special determinations.
(3) Coverage advice and determinations training for and approval of, labor
compliance programs' establishment and enforcement notices to withhold.
(4) Civil wage and penalty assessments.
(5) Hearings in response to contractor requests under subdivision
(b) of Section 1171.6, Section 1742, and Section 1777.7.
1772. Workers employed by contractors or subcontractors in the execution of
any contract for public work are deemed to be employed upon public work.
1773. The body awarding any contract for public work, or otherwise
undertaking any public work, shall obtain the general prevailing rate of per
diem wages and the general prevailing rate for holiday and overtime work in
the locality in which the public work is to be performed for each craft,
classification, or type of worker needed to execute the contract from the
Director of Industrial Relations. The holidays upon which those rates shall
be paid need not be specified by the awarding body, but shall be all holidays
recognized in the applicable collective bargaining agreement. If the
prevailing rate is not based on a collectively bargained rate, the holidays
upon which the prevailing rate shall be paid shall be as provided in Section
6700 of the Government Code.
In determining the rates, the Director of Industrial Relations shall
ascertain and consider the applicable wage rates established by collective
bargaining agreements and the rates that may have been predetermined for
federal public works, within the locality and in the nearest labor market
area. Where the rates do not constitute the rates actually prevailing in the
locality, the director shall obtain and consider further data from the labor
organizations and employers or employer associations concerned, including the
recognized collective bargaining representatives for the particular craft,
classification, or type of work involved. The rate fixed for each craft,
classification, or type of work shall be not less than the prevailing rate
paid in the craft, classification, or type of work.
If the director determines that the rate of prevailing wage for any craft,
classification, or type of worker is the rate established by a collective
bargaining agreement, the director may adopt that rate by reference as
provided for in the collective bargaining agreement and that determination
shall be effective for the life of the agreement or until the director
determines that another rate should be adopted.
1773.1. (a) Per diem wages, when the term is used in this chapter or in any
other statute applicable to public works, shall be deemed to include 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,
so long as 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 (Section 175a of
Title 29 of the United States Code), to the extent that the activities of the
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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 required under a
collective bargaining agreement pertaining to the particular craft,
classification, or type of work within the locality or the nearest labor
market area at issue.
(9 ) Other purposes similar to those specified in paragraphs (1) to
(8), inclusive .
(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, no credit shall be
granted for benefits required to be provided by other state or federal law.
Credits for employer payments also shall not reduce the obligation to pay the
hourly straight time or overtime wages found to be prevailing.
(d) The credit for employer payments shall 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 where one or more of the following occur:
(1) The employer has an enforceable obligation to make the higher rate of
payments on future private construction performed by the employer.
(2) The higher rate of payments is required by a project labor agreement.
(3) 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.
(e) (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 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) Where 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.
1773.2. The body awarding axiy contract for public work, or otherwise
undertaking any public work, shall specify in the call for bids for the
contract, and in the bid specifications and in the contract itself, what the
general rate of per diem wages is for each craft, classification, or type of
worker needed to execute the contract.
In lieu of specifying the rate o f wages in the call for bids, and in the
bid specifications and in the contract itself, the awarding body may, in the
call for bids, bid specifications, and contract, include a statement that
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copies of the prevailing rate of per diem wages are on file at its principal
office, which shall be made available to any interested party on request.
The awarding body shall also cause a copy of the determination of the
director of the prevailing rate of per diem wages to be posted at each job
site.
1773.3. An awarding agency whose public works contract falls within the
jurisdiction of Section 1777.5 shall, within five days of the award, send a
copy of the award to the Division of Apprenticeship Standards. When
specifically requested by a local joint apprenticeship committee, the
division shall notify the local joint apprenticeship committee regarding all
such awards applicable to the joint apprenticeship committee making the
request. Within five days of a finding of any discrepancy regarding the
ratio of apprentices to journeymen, pursuant to the certificated fixed number
of apprentices to journeymen, the awarding agency shall notify the Division
of Apprenticeship Standards.
1773.4. . Any prospective bidder or his representative, any representative of
any craft, classification or type of workman involved, or the awarding body
may, within 20 days after commencement of advertising of the call for bids by
the awarding body, file with the Director of Industrial Relations a verified
petition to review the determination of any such rate or rates upon the
ground that they have not been determined in accordance with the provision of
Section 1773 of this code. Within two days thereafter, a copy of such
petition shall be filed with the awarding body. The petition shall set forth
the facts upon which it is based. The Director of Industrial Relations or
his authorized representative shall, upon notice to the petitioner, the
awarding body and such other persons as he deems proper, including the
recognized collective bargaining representatives for the particular crafts,
classifications or types of work involved, institute an investigation or hold
a hearing. Within 20 days after the filing of such petition, or within such
longer period as agreed upon by the director, the awarding body, and all the
interested parties, he shall make a determination and transmit the same in
writing to the awarding body and to the interested parties.
Such determination shall be final and shall be the determination of the
awarding body. Upon receipt by it of the notice of the filing of such
petition the body awarding the contract or authorizing the public work shall
extend the closing date for the submission of bids or the starting of work
until five days after the determination of the general prevailing rates of
per diem wages pursuant to this section.
Upon the filing of any such petition, notice thereof shall be set forth in
the next and all subsequent publications by the awarding body of the call for
bids. No other notice need be given to bidders by the awarding body by
publication or otherwise. The determination of the director shall be
included in the contract.
1773.5. 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.
1773.6. 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 he shall make such change available to the
awarding body and his determination shall be final. Such determination by
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the Director of Industrial Relations shall not be effective as to any
contract for which the notice to bidders has been published.
1773.7. The provisions of Section 11250 of the Government Code shall not be
applicable to Sections 1773, 1773.4, and 1773.6.
1773.9. (a) The Director of Industrial Relations shall use the methodology
set forth in subdivision (b) to determine the general prevailing rate of per
diem wages in the locality in which the public work is to be performed.
(b) The general prevailing rate of per diem wages includes all of the
following:
(1) The basic hourly wage rate being paid to a majority of workers engaged
in the particular craft, classification, or type of work within the locality
and in the nearest labor market area, if a majority of the workers is paid at
a single rate. If no single rate is being paid to a majority of the workers,
then the single rate being paid to the greatest number of workers, or modal
rate, is prevailing. If a modal rate cannot be determined, then the director
shall establish an alternative rate, consistent with the methodology for
determining the modal rate, by considering the appropriate collective
bargaining agreements, federal rates, rates in the nearest labor market area,
or other data such as wage survey data.
(2) Other employer payments included in per diem wages pursuant to
Section 1773.1 and as included as part of the total hourly wage rate from
which the basic hourly wage rate was derived. In the event the total hourly
wage rate does not include any employer payments, the director shall
establish a prevailing employer payment rate by the same procedure set forth
in paragraph (1) .
.(3) The rate for holiday and overtime work shall be those rates specified
in the collective bargaining agreement when the basic hourly rate is based on
a collective bargaining agreement rate. In the event the basic hourly rate is
not based on a collective bargaining agreement, the rate for holidays and
overtime work, if any, included with the prevailing basic hourly rate of pay
shall be prevailing.
(c) (1) If the director determines that the general prevailing rate of per
diem wages is the rate established by a collective bargaining agreement, and
that the collective bargaining agreement contains definite and predetermined
changes during its term that will affect the rate adopted, the director shall
incorporate those changes into the determination. Predetermined changes that
are rescinded prior to their effective date shall not be enforced.
(2) When the director determines that there is a definite and
predetermined. change in the general prevailing rate of per diem wages as
described in paragraph (1), but has not published, at the time of the
effective date of the predetermined change, the allocation of the
predetermined change as between the basic hourly wage and other employer
payments included in per diem wages pursuant to Section 1773.1, a contractor
or subcontractor may allocate payments of not less than the amount of the
definite and predetermined change to either the basic hourly wage or other
employer payments included in per diem wages for up to 60 days following the
director's publication of the specific allocation of the predetermined
change.
(3) When the director determines that there is a definite and
predetermined change in the general prevailing rate of per diem wages as
described in paragraph (1), but the allocation of that predetermined change
as between the basic hourly wage and other employer payments included in per
diem wages pursuant to Section 1773.1 is subsequently altered by the parties
to a collective bargaining agreement described in paragraph (1), a contractor
or subcontractor may allocate payments of not less than the amount of the
definite and predetermined change in accordance with either the originally
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published allocation or the allocation as altered in the collective
bargaining agreement.
1773.11. (a) Notwithstanding any other provision of law and except as
otherwise provided by this section, if the state or a political subdivision
thereof agrees by contract with a private entity that the private entity's
employees receive, in performing that contract, the general prevailing rate
of per diem wages and the general prevailing rate for holiday and overtime
work, the director shall, upon a request by the state or the political
subdivision, do both of the following:
(1) Determine, as otherwise provided by law, the wage rates for each
craft, classification, or type of worker that are needed to execute the
contract.
(2) Provide these wage rates to the state or political subdivision that
requests them.
(b) This section does not apply to a contract for a public work, as
defined in this chapter.
(c) The director shall determine and provide the wage rates described in
this section in the order in which the requests for these wage rates were
received and regardless of the calendar year in which they were received. If
there are more than 20 pending requests in a calendar year, the director
shall respond only to the first 20 requests in the order in which they were
received. If the director determines that funding is available in any
calendar year to determine and provide these wage rates in response to more
than 20 requests, the director shall respond to these requests in a manner
consistent with this subdivision.
1774. The contractor to whom the contract is awarded, and any subcontractor
under him, shall pay not less than the specified prevailing rates of wages to
all workmen employed in the execution of the contract.
1775. (a) (1) The contractor and any subcontractor under the contractor
shall, as a penalty to the state or political subdivision on whose behalf the
contract is made or awarded, forfeit not more than fifty dollars ($50) for
each calendar day, or portion thereof, for each worker paid less than the
prevailing wage rates as determined by the director for the work or craft in
which the worker is employed for any public work done under the contract by
the contractor or, except as provided in subdivision (b), by any
subcontractor under the contractor.
(2) (A) The amount of the penalty shall be determined by the Labor
Commissioner based on consideration of both of the following:
(i) Whether the failure of the contractor or subcontractor to pay the
correct rate of per diem wages was a good faith mistake and, if so, the error
was promptly and voluntarily corrected when brought to the attention of the
contractor or subcontractor.
(ii) Whether the contractor or subcontractor has a prior record of failing
to meet its prevailing wage obligations.
(B) ( i ) The penalty may not be less than ten dollars ($10) for each
calendar day, or portion thereof, for each worker paid less than the
prevailing wage rate, unless the failure of the contractor or subcontractor
to pay the correct rate of per diem wages was a good faith mistake and, if
so, the error was promptly and voluntarily corrected when brought to the
attention of the contractor or subcontractor.
(ii) The penalty may not be less than twenty dollars ($20) for each
calendar day, or portion thereof, for each worker paid less than the
prevailing wage rate, if the contractor or subcontractor has been assessed
penalties within the previous three years for failing to meet its prevailing
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wage obligations on a separate contract, unless those penalties were
subsequently withdrawn or overturned.
(iii) The penalty may not be less than thirty dollars ($30) for each
calendar day, or portion thereof, for each worker paid less than the
prevailing wage rate, if the Labor Commissioner determines that the violation
was willful, as defined in subdivision (c) of Section
1777.1.
(C) When the amount due under this section is collected from the
contractor or subcontractor, any outstanding wage claim under Chapter
1 (commencing with Section 1720) of Part 7 of Division 2 against that
contractor or subcontractor shall be satisfied before applying that amount to
the penalty imposed on that contractor or subcontractor pursuant to this
section.
(D) The determination of the Labor Commissioner as to the amount of the
penalty shall be reviewable only for abuse of discretion.
(E) The difference between the prevailing wage rates and the amount paid
to each worker for each calendar day or portion thereof for which each worker
was paid less than the prevailing wage rate shall be paid to each worker by
the contractor or subcontractor, and the body awarding the contract shall
cause to be inserted in the contract a stipulation that this section will be
complied with.
(b) If a worker employed by a subcontractor on a public works project is
not paid the general prevailing rate of per diem wages by the subcontractor,
the prime contractor of the project is not liable for any penalties under
subdivision (a) unless the prime contractor had knowledge of that failure of
the subcontractor to pay the specified prevailing rate of wages to those
workers or unless the prime contractor fails to comply with all of the
following requirements:
(1) The contract executed between the contractor and the subcontractor for
the performance of work on the public works project shall include a copy of
the provisions of Sections 1771, 1775, 1776, 1777.51 1813, and 1815.
(2) The contractor shall monitor the payment of the specified general
prevailing rate of per diem wages by the subcontractor to the employees, by
periodic review of the certified payroll records of the subcontractor.
(3) Upon becoming aware of the failure of the subcontractor to pay his or
her workers the specified prevailing rate of wages, the contractor shall
diligently take corrective action to halt or rectify the failure, including,
but not limited to, retaining sufficient funds due the subcontractor for work
performed on the public works project.
(4) Prior to making final payment to the subcontractor for work performed
on the public works project, the contractor shall obtain an affidavit signed
under penalty of perjury from the subcontractor that the subcontractor has
paid the specified general prevailing rate of per diem wages to his or her
employees on the public works project and any amounts due pursuant to Section
1813.
(c) The Division of Labor Standards Enforcement shall notify the
contractor on a public works project within 15 days of the receipt by the
Division of Labor Standards Enforcement of a complaint of the failure of a
subcontractor on that public works project to pay workers the general
prevailing rate of per diem wages.
1776. (a) Each contractor and subcontractor shall 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 him or her in connection with the public work.
Each payroll record shall contain or be verified by a written declaration
that it is made under penalty of perjury, stating both of the following:
(1) The information contained in the payroll record is true and correct.
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(2) The employer has complied with the requirements of Sections
1771, 1811, and 1815 for any work performed by his or her employees
on the public works project.
(b) The payroll records enumerated under subdivision (a) shall be
certified and shall be available for inspection at all reasonable hours at
the principal office of the contractor on the following basis:
(1) A certified copy of an employee's payroll record shall be made
available for inspection or furnished to the employee or his or her
authorized representative on request.
(2) A certified copy of all payroll records enumerated in subdivision (a)
shall be made available for inspection or furnished upon request to a
representative of the body awarding the contract, the Division of Labor
Standards Enforcement, and the Division of Apprenticeship Standards of the
Department of Industrial Relations.
(3 ) A certified copy of all payroll records enumerated in subdivision (a)
shall be made available upon request by the public for inspection or for
copies thereof. However, a request by the public shall be made through either
the body awarding the contract, the Division of Apprenticeship Standards, or
the Division of Labor Standards Enforcement. If the requested payroll records
have not, been provided pursuant to paragraph (2) , the requesting party shall,
prior to being provided the records, reimburse the costs of preparation by
the contractor, subcontractors, and the entity through which the request was
made. The public may not be given access to the records at the principal
office of the contractor.
(c) The certified payroll records shall be on forms provided by the
Division of Labor Standards Enforcement or shall contain the same information
as the forms provided by the division. The payroll records may consist of
printouts of payroll data that are maintained as computer records, if the
printouts contain the same information as the forms provided by the division
and the printouts are verified in the manner specified in subdivision (a) .
(d) A contractor or subcontractor shall file a certified copy of the
records enumerated in subdivision (a) with the entity that requested the
records within 10 days after receipt of a written request.
(e) Any copy of records made available for inspection as copies and
furnished upon request to the public or any public agency by the awarding
body, the Division of Apprenticeship Standards, or the
Division of Labor Standards Enforcement shall be marked or obliterated to
prevent disclosure of an individual's name, address, and social security
number. The name and address of the contractor awarded the contract or the
subcontractor performing the contract shall not be marked or obliterated. Any
copy of records made available for inspection by, or furnished to, a joint
labor- management committee established pursuant to the federal Labor
Management Cooperation Act of 1978 (29 U.S.C. Sec. 175a) shall be marked or
obliterated only to prevent disclosure of an individual's name and social
security number. A joint labor management committee may maintain an action in
a court of competent jurisdiction against an employer who fails to comply
with Section 1774. The court may award restitution to an employee for unpaid
wages and may award the joint labor management committee reasonable
attorney's fees and costs incurred in maintaining the action. An action under
this subdivision may not be based on the employer's misclassification of the
craft of a worker on its certified payroll records. Nothing in this
subdivision limits any other available remedies for a violation of this
chapter.
(f) The contractor shall inform the body awarding the contract of the
location of the records enumerated under subdivision (a), including the
street address, city, and county, and shall, within five working days,
provide a notice of a change of location and address.
(g) The contractor or subcontractor has 10 days in which to comply
subsequent to receipt of a written notice requesting the records enumerated
in subdivision (a). In the event that the contractor or subcontractor fails
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to comply within the 10 -day period, he or she shall, as a penalty to the
state or political subdivision on whose behalf the contract is made or
awarded, forfeit twenty" -five dollars
($25) for each calendar day, or portion thereof, for each worker, until
strict compliance is effectuated. Upon the request of the Division of
Apprenticeship Standards or the Division of Labor Standards Enforcement,
these penalties shall be withheld from progress payments then due. A
contractor is not subject to a penalty assessment pursuant to this section
due to the failure of a subcontractor to comply with this section.
(h) The body awarding the contract shall cause to be inserted in the
contract stipulations to effectuate this section.
(i) The director shall adopt rules consistent with the California
Public Records Act (Chapter 3.5 (commencing with Section 6250) of
Division 7 of Title 1 of the Government Code) and the Information
Practices Act of 1977 (Title 1.8 (commencing with Section 1798) of
Part 4 of Division 3 of the Civil Code) governing the release of these
records, including the establishment of reasonable fees to be charged for
reproducing copies of records required by this section.
1777. Any officer, agent, or representative of the State or of any political
subdivision who wilfully violates any provision of this article, and any
contractor, or subcontractor, or agent or representative thereof, doing
public work who neglects to comply with any provision of section 1776 is
guilty of a misdemeanor.
1777.1. (a) Whenever a contractor or subcontractor performing a public works
project pursuant to this chapter is found by the Labor Commissioner to be in
violation of this chapter with intent to defraud, except Section 1777.5, the
contractor or subcontractor or a firm, corporation, partnership, or
association in which the contractor or subcontractor has any interest is
ineligible for a period of not less than one year or more than three years to
do either of the following:
(1) Bid on or be awarded a contract for a public works project.
(2 ) Perform work as a subcontractor on a public works project.
(b) Whenever a contractor or subcontractor performing a public works
project pursuant to this chapter is found by the Labor Commissioner to be in
willful violation of this chapter, except Section 1777.5, the contractor or
subcontractor or a firm, corporation, partnership, or association in which
the contractor or subcontractor has any interest is ineligible for a period
up to three years for each second and subsequent violation occurring within
three years of a separate and previous willful violation of this chapter to
do either of the following:
(1) Bid on or be awarded a contract for a public works project.
(2 ) Perform work as a subcontractor on a public works project.
(c) A willful violation occurs when the contractor or subcontractor knew
or reasonably should have known of his or her obligations under the public
works law and deliberately fails or refuses to comply with its provisions.
(d) Not less than semiannually, the Labor Commissioner shall publish and
distribute to awarding bodies a list of contractors who are ineligible to bid
on or be awarded a public works contract, or to perform work as a
subcontractor on a public works project pursuant to this chapter. The list
shall contain the name of the contractor,
the Contractor's State License Board license number of the contractor, and
the effective period of debarment of the contractor. The commissioner shall
also place advertisements in construction industry publications targeted to
the contractors and subcontractors, chosen by the commissioner, that state
the effective period of the debarment and the reason for debarment. The
advertisements shall appear one time for each debarment of a contractor in
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each publication chosen by the commissioner. The debarred contractor or
subcontractor shall be liable to the commissioner for the reasonable cost of
the advertisements, not to exceed five thousand dollars ($5,000). The amount
paid to the commissioner for the advertisements shall be credited against the
contractor's or subcontractor's obligation to pay civil fines or penalties
for the same willful violation of this chapter.
(e) For purposes of this section, "contractor or subcontractor" means a
firm, corporation, partnership, or association and its responsible managing
officer, as well as any supervisors, managers, and officers found by the
Labor Commissioner to be personally and substantially responsible for the
willful violation of this chapter.
(f) For the purposes of this section, the term "any interest" means an
interest in the entity bidding or performing work on the public works
project, whether as an owner, partner, officer, manager, employee, agent,
consultant, or representative. "Any interest" includes, but is not limited
to, all instances where the debarred contractor or subcontractor receives
payments, whether cash or any other form of compensation, from any entity
bidding or performing work on the public works project, or enters into any
contracts or agreements with the entity bidding or performing work on the
public works project for services performed or to be performed for contracts
that have been or will be assigned or sublet, or for vehicles, tools,
equipment, or supplies that have been or will be sold, rented, or leased
during the period from the initiation of the debarment proceedings until the
end of the term of the debarment period. "Any interest" does not include
shares held in a publicly traded corporation if the shares were not received
as compensation after the initiation of debarment from an entity bidding or
performing work on a public works project.
(g) For the purposes of this section, the term "entity" is defined as a
company, limited liability company, association, partnership, sole
proprietorship, limited liability partnership, corporation, business trust,
or organization.
(h) The Labor Commissioner shall adopt rules and regulations for the
administration and enforcement of this section.
1777.5. (a) Nothing in this chapter shall prevent the employment of properly
registered apprentices upon public works.
(b) Every apprentice employed upon public works shall be paid the
prevailing rate of per diem wages for apprentices in the trade to which he or
she is registered and shall be employed only at the work of the craft or
trade to which he or she is registered.
(c) Only apprentices, as defined in Section 3077, who are in training
under apprenticeship standards that have been approved by the Chief of the
Division of Apprenticeship Standards and who are parties to written
apprentice agreements under Chapter 4 (commencing with Section 3070) of
Division 3 are eligible to be employed at the apprentice wage rate on public
works. The employment and training of each apprentice shall be in accordance
with either of the following,,
(1) The apprenticeship standards and apprentice agreements under which he
or she is training.
(2) The rules and regulations of the California Apprenticeship Council.
(d) When the contractor to whom the contract is awarded by the state or
any political subdivision, in performing any of the work under the contract,
employs workers in any apprenticeable craft or trade, the contractor shall
employ apprentices in at least the ratio set forth in this section and may
apply to any apprenticeship program in the craft or trade that can provide
apprentices to the site of the public work for a certificate approving the
contractor under the apprenticeship standards for the employment and training
of apprentices in the area or industry affected. However, the decision of
the apprenticeship program to approve or deny a certificate shall be subject
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to review by the Administrator of Apprenticeship. The apprenticeship program
or programs, upon approving the contractor, shall arrange for the dispatch of
apprentices to the contractor. A contractor covered by an apprenticeship
program's standards shall not be required to submit any additional
application in order to include additional public works contracts under that
program. "Apprenticeable craft or trade," as used in this section, means a
craft or trade determined as an apprenticeable occupation in accordance with
rules and regulations prescribed by the California Apprenticeship Council.
As used in this section, "contractor" includes any subcontractor under a
contractor who performs any public works not excluded by subdivision (o).
(e) Prior to commencing work on a contract for public works, every
contractor shall submit contract award information to an applicable
apprenticeship program that can supply apprentices to the site of the public
work. The information. submitted shall include an estimate of journeyman
hours to be performed under the contract, the number of apprentices proposed
to be employed, and the approximate dates the apprentices would be employed.
A copy of this information shall also be submitted to the awarding body if
requested by the awarding body.
Within 60 days after concluding work on the contract, each contractor and
subcontractor shall submit to the awarding body, if requested, and to the
apprenticeship program a verified statement of the journeyman and apprentice
hours performed on the contract. The information under this subdivision
shall be public. The apprenticeship programs shall retain this information
for 12 months.
(f) The apprenticeship program that can supply apprentices to the area of
the site of the public work shall ensure equal employment and affirmative
action in apprenticeship for women and minorities.
(g) The ratio of work performed by apprentices to journeymen employed in a
particular craft or trade on the public work may be no higher than the ratio
stipulated in the apprenticeship standards under which the apprenticeship
program operates where the contractor agrees to be bound by those standards,
but, except as otherwise provided in this section, in no case shall the ratio
be less than one hour of apprentice work for every five hours of journeyman
work.
(h) This ratio of apprentice work to journeyman work shall apply during
any day or portion of a day when any journeyman is employed at the jobsite
and shall be computed on the basis of the hours worked during the day by
journeymen so employed. Any work performed by a journeyman in excess of
eight hours per day or 40 hours per week shall not be used to calculate the
ratio. The contractor shall employ apprentices for the number of hours
computed as above before the end of the contract or, in the case of a
subcontractor, before the end of the subcontract. However, the contractor
shall endeavor, to the greatest extent possible, to employ apprentices during
the same time period that the journeymen in the same craft or trade are
employed at the jobsite. Where an hourly apprenticeship ratio is not
feasible for a particular craft or trade, the Chief of the Division of
Apprenticeship Standards, upon application of an apprenticeship program, may
order a minimum ratio of not less than one apprentice for each five
journeymen in a craft or trade classification.
(i) A contractor covered by this section that has agreed to be covered by
an apprenticeship program's standards upon the issuance of the approval
certificate, or that has been previously approved for an apprenticeship
program in the craft or trade, shall employ the number of apprentices or the
ratio of apprentices to journeymen stipulated in the applicable
apprenticeship standards, but in no event less than the 1 -to -5 ratio required
by subdivision (g).
(j) Upon proper showing by a contractor that he or she employs apprentices
in a particular craft or trade in the state on all of his or her contracts on
an annual average of not less than one hour of apprentice work for every five
hours of labor performed by journeymen, the Chief of the Division of
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Apprenticeship Standards may grant a certificate exempting the contractor
from the 1-to-5 hourly ratio, as set forth in this section for that craft or
trade.
(k) An apprenticeship program has the discretion to grant to a
participating contractor or contractor association a certificate, which shall
be subject to the approval of the Administrator of Apprenticeship, exempting
the contractor from the 1 -to -5 ratio set forth in this section when it finds
that any one of the following conditions is met:
(1) Unemployment for the previous three -month period in the area exceeds
an average of 15 percent.
(2) The number of apprentices in training in the area exceeds a ratio of 1
to 5.
( 3 ) There is a showing_ that the apprenticeable craft or trade is replacing
at least one -- thirtieth of its journeymen annually through apprenticeship
training, either on a statewide basis or on a local basis.
(4) Assignment of an apprentice to any work performed under a public works
contract would create a condition that would jeopardize his or her life or
the life, safety, or property of fellow employees or the public at large, or
the specific task to which the apprentice is to be assigned is of a nature
that training cannot be provided by a journeyman.
(1) When an exemption is granted pursuant to subdivision (k) to an
organization that represents contractors in a specific trade from the 1 -to -5
ratio on a local or statewide basis, the member contractors shall not be
required to submit individual applications for approval to local joint
apprenticeship committees, if they are already covered by the local
apprenticeship standards.
(m) (1) A contractor to whom a contract is awarded, who, in performing any
of the work under the contract, employs journeymen or apprentices in any
apprenticeable craft or trade shall contribute to the California
Apprenticeship Council the same amount that the director determines is the
prevailing amount of apprenticeship training contributions in the area of the
public works site. A contractor may take as a credit for payments to the
council any amounts paid by the contractor to an approved apprenticeship
program that can supply apprentices to the site of the public works project.
The contractor may add the amount of the contributions in computing his or
her bid for the contract.
(2) At the conclusion of the 2002 -03 fiscal year and each fiscal year
thereafter, the California Apprenticeship Council shall distribute training
contributions received by the council under this subdivision, less the
expenses of the Division of Apprenticeship Standards for administering this
subdivision, by making grants to approved apprenticeship programs for the
purpose of training apprentices. The funds shall be distributed as follows:
(A) If there is an approved multiemployer apprenticeship program serving
the same craft or trade and geographic area for which the training
contributions were made to the council, a grant to that program shall be
made.
(B) If there are two or more approved multiemployer apprenticeship
programs serving the same craft or trade and geographic area for which the
training contributions were made to the council, the grant shall be divided
among those programs based on the number of apprentices registered in each
program.
(C) All training contributions not distributed under subparagraphs
(A) and (B) shall be used to defray the future expenses of the Division of
Apprenticeship Standards.
(3) All training contributions received pursuant to this subdivision shall
be deposited in the Apprenticeship Training Contribution Fund, which is
hereby created in the State Treasury. Notwithstanding Section 13340 of the
Government Code, all money in the Apprenticeship Training Contribution Fund
is hereby continuously appropriated for the purpose of carrying out this
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Exhibit A
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subdivision and to pay the expenses of the Division of Apprenticeship
Standards.
(n) The body awarding the contract shall cause to be inserted in the
contract stipulations to effectuate this section. The stipulations shall fix
the responsibility of compliance with this section for all apprenticeable
occupations with the prime contractor.
(o) This section does not apply to contracts of general contractors or to
contracts of specialty contractors not bidding for work through a general or
prime contractor when the contracts of general contractors or those specialty
contractors involve less than thirty thousand dollars ($30,000).
(p) All decisions of an apprenticeship program under this section are
subject to Section 3081.
1777.6. An employer or a labor union shall not refuse to accept otherwise
qualified employees as registered apprentices on any public works on any
basis listed in subdivision (a) of Section 12940 of the
Government Code, as those bases are defined in Sections 12926 and
12926.1 of the Government Code, except as provided in Section 3077 of this
code and - Section 12940 of the Government Code.
1777.7. (a) (1) A contractor or subcontractor that is determined by the
Chief of the Division of Apprenticeship Standards to have knowingly violated
Section 1777.5 shall forfeit as a civil penalty an amount not exceeding one
hundred dollars ($100) for each full calendar day of noncompliance. The
amount of this penalty may be reduced by the Chief if the amount of the
penalty would be disproportionate to the severity of the violation. A
contractor or subcontractor that knowingly commits a second or subsequent
violation of Section 1777.5 within a three -year period, where the
noncompliance results in apprenticeship training not being provided as
required by this chapter, shall forfeit as a civil penalty the sum of not
more than three hundred dollars ($300) for each full calendar day of
noncompliance. Notwithstanding Section 1727, upon receipt of a determination
that a civil penalty has been imposed by the Chief, the awarding body shall
withhold the amount of the civil penalty from contract progress payments then
due or to become due.
(2) in lieu of the penalty provided for in this subdivision, the
Chief may, for a first -time violation and with the concurrence of an
apprenticeship program described in subdivision (d), order the contractor or
subcontractor to provide apprentice employment equivalent to the work hours
that would have been provided for apprentices during the period of
noncompliance.
(b) In the event a contractor or subcontractor is determined by the Chief
to have knowingly committed a serious violation of any provision of Section
1777.5, the Chief may also deny to the contractor or subcontractor, and to
its responsible officers, the right to bid on or be awarded or perform work
as a subcontractor on any public works contract for a period of up to one
year for the first violation and for a period of up to three years for a
second or subsequent violation. Each period of debarment shall run from the
date the determination of noncompliance by the Chief becomes a final order of
the Administrator of Apprenticeship.
(c) (1) An affected contractor, subcontractor, or responsible officer may
obtain a review of the determination of the Chief imposing the debarment or
civil penalty by transmitting a written request to the office of the
Administrator within 30 days after service of the determination of debarment
or civil penalty. A copy of this report shall also be served on the Chief.
If the Administrator does not receive a timely request for review of the
determination of debarment or civil penalty made by the Chief, the order
shall become the final order of the Administrator.
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Exhibit A
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(2) Within 20 days of the timely receipt of a request for review, the
Chief shall provide the contractor, subcontractor, or responsible officer the
opportunity to review any evidence the Chief may offer at the hearing. The
Chief shall also promptly disclose any nonprivileged documents obtained after
the 20 -day time limit at a time set forth for exchange of evidence by the
Administrator.
(3) Within 90 days of the timely receipt of a request for review, a
hearing shall be commenced before the Administrator or an impartial hearing
officer designated by the Administrator and possessing the qualifications of
an administrative law judge pursuant to subdivision
(b) of Section 11502 of the Government Code. The affected contractor,
subcontractor, or responsible officer shall have the burden of providing
evidence of compliance with Section 1777.5.
(4) Within 45 days of the conclusion of the hearing, the
Administrator shall issue a written decision affirming, modifying, or
dismissing the determination of debarment or civil penalty. The decision
shall contain a statement of the factual and legal basis for the decision. 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 that the party has filed with the
Administrator. Within 15 days of issuance of the decision, the Administrator
may reconsider or modify the decision to correct an error, except that a
clerical error may be corrected at any time.
(5 ) An affected contractor, subcontractor, or responsible officer who has
timely requested review and obtained a decision under paragraph (4) may
obtain review of the decision of the Administrator 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 final
decision. If no timely petition for a writ of mandate is filed, the decision
shall become the final order of the Administrator. The decision of the
Administrator shall be affirmed unless. the petitioner shows that the
Administrator abused his or her discretion. If the petitioner claims 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 light of the entire record.
(6 ) The Chief may certify a copy of the final order of the Administrator
and file it with 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. A judgment entered pursuant to this section shall bear the same rate
of interest and shall have the same effect as other judgments and be given
the same preference allowed by the law on other judgments rendered for claims
for taxes. The clerk shall not charge for the service performed by him or
her pursuant to this section. An awarding body that has withheld funds in
response to a determination by the Chief imposing a penalty under this
section shall, upon receipt of a certified copy of a final order of the
Administrator, promptly transmit the withheld funds, up to the amount of the
certified order, to the Administrator.
(d) If a subcontractor is found to have violated Section 1777.5, the prime
contractor of the project is not liable for any penalties under subdivision
(a), unless the prime contractor had knowledge of the subcontractor's failure
to comply with the provisions of Section 1777.5 or unless the prime
contractor fails to comply with any of the following requirements:
(1) The contract executed .between the contractor and the subcontractor or
the performance of work on the public works project shall include a copy of
the provisions of Sections 1771, 1775, 1776, 1777.51 1813, and 1815.
(2) The contractor shall continually monitor a subcontractor's use of
apprentices required to be employed on the public works project pursuant to
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Exhibit A
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subdivision (d) of Section 1777.5, including, but not limited to, periodic
review of the certified payroll of the subcontractor.
(3 ) Upon becoming aware of a failure of the subcontractor to employ the
required number of apprentices, the contractor shall take corrective action,
including, but not limited to, retaining funds due the subcontractor for work
performed on the public works project until the failure is corrected.
(4) Prior to making the final payment to the subcontractor for work
performed on the public works project, the contractor shall obtain a
declaration signed under penalty of perjury from the subcontractor that the
subcontractor has employed the required number of apprentices on the public
works project.
(e) Any funds withheld by the awarding body pursuant to this section shall
be deposited in the General Fund if the awarding body is a state entity, or
in the equivalent fund of an awarding body if the awarding body is an entity
other than the state.
(f) The Chief shall consider, in setting the amount of a monetary penalty,
in determining whether a violation is serious, and in determining whether and
for how long a party should be debarred for violating this section, all of
the following circumstances:
(1) Whether the violation was intentional.
(2) Whether the party has committed other violations of Section
1777.5.
(3) Whether, upon notice of the violation, the party took steps to
voluntarily remedy the violation.
(4) Whether, and to what extent, the violation resulted in lost training
opportunities for apprentices.
(5) Whether, and to what extent, the violation otherwise harmed
apprentices or apprenticeship programs.
If a party seeks review of a decision by the Chief to impose a monetary
penalty or period of debarment, the Administrator shall decide de novo the
appropriate penalty, by considering the same factors set forth above.
(g) The interpretation of Section 1777.5 and this section shall be in
accordance with the regulations of the California Apprenticeship Council.
The Administrator may adopt regulations to establish guidelines for the
imposition of monetary penalties and periods of debarment and may designate
precedential decisions under Section
11425.60 of the Government Code.
1778. Every person, who individually or as a representative of an awarding
or public body or officer, or as a contractor or subcontractor doing public
work, or agent or officer thereof, who takes, receives, or conspires with
another to take or receive, for his own use or the use of any other person
any portion of the wages of any workman or working subcontractor, in
connection with services rendered upon any public work is guilty of a felony.
1779. Any person or agent or officer thereof who charges, collects, or
attempts to charge or collect, directly or indirectly, a fee or valuable
consideration for registering any person for public work, or for giving
information as to where such employment may be procured, or for placing,
assisting in placing, or attempting to place, any person in public work,
whether the person is to work directly for the State, or any political
subdivision or for a contractor or subcontractor doing public work is guilty
of a misdemeanor.
1780. Any person acting on behalf of the State or any political subdivision,
or any contractor or subcontractor or agent or representative thereof, doing
any public work who places any order for the employment of a workman on
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Exhibit A
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public work where the filling of the order for employment involves the
charging of a fee, or the receiving of a valuable consideration from any
applicant for employment is guilty of a misdemeanor.
1781. (a) (1) Notwithstanding any other provision of law, a contractor may,
subject to paragraphs ( 2 ) and (3), bring an action in a court of competent
jurisdiction to recover from the body awarding a contract for a public work
or otherwise undertaking any public work any increased costs incurred by the
contractor as a result of any decision by the body, the Department of
Industrial Relations, or a court that classifies, after the time at which the
body accepts the contractor's bid or awards the contractor a contract in
circumstances where no bid is solicited, the work covered by the bid or
contract as a "public work," as defined in this chapter, to which Section
1771 applies, if that body, before the bid opening or awarding of the
contract, failed to identify as a "public work," as defined in this chapter,
in the bid specification or in the contract documents that portion of the
work that the decision classifies as a "public work."
(2) The body awarding a contract for a public work or otherwise
undertaking any public work is not liable for increased costs in an action
described in paragraph (1) if all of the following conditions are met:
(A) The contractor did not directly submit a bid to, or directly contract
with, that body.
(B) The body stated in the contract, agreement, ordinance, or other
written arrangement by which it undertook the public work that the work
described in paragraph (1) was a "public work," as defined in this chapter,
to which Section 1771 applies, and obligated the party with whom the body
makes its written arrangement to cause the work described in paragraph (1) to
be performed as a "public work."
(C) The body fulfilled all of its duties, if any, under the Civil
Code or any other provision of law pertaining to the body providing and
maintaining bonds to secure the payment of contractors, including the payment
of wages to workers performing the work described in paragraph (1) .
(3) If a contractor did not directly submit a bid to, or directly
contract with a body awarding a contract for, or otherwise undertaking a
public work, the liability of that body in an action commenced by the
contractor under subdivision (a) is limited to that portion of a judgment,
obtained by that contractor against the body that solicited the contractor's
bid or awarded the contract to the contractor, that the contractor is unable
to satisfy. For purposes of this paragraph, a contractor may not be deemed
to be unable to satisfy any portion of a judgment unless, in addition to
other collection measures, the contractor has made a good faith attempt to
collect that portion of the judgment against a surety bond, guarantee, or
some other form of assurance.
(b) When construction has not commenced at the time a final decision by
the Department of Industrial Relations or a court classifies all or part of
the work covered by the bid or contract as a "public work," as defined in
this chapter, the body that solicited the bid or awarded the contract shall
rebid the "public work" covered by the contract as a "public work," any bid
that was submitted and any contract that was executed for this work are null
and void, and the contractor may not be compensated for any nonconstruction
work already performed unless the body soliciting the bid or awarding the
contract has agreed to compensate the contractor for this work.
(c) For purposes of this section:
(1) "Awarding body" does not include the Department of General
Services, the Department of Transportation, or the Department of Water
Resources.
(2) "Increased costs" includes, but is not limited to:
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Exhibit A
Page 82 of 84
(A) Labor cost increases required to be paid to workers who perform or
performed work on the "public work" as a result of the events described in
subdivision (a) .
(B) Penalties for a violation of this article for which the contractor is
liable, and which violation is the result of the events described in
subdivision (a) .
1810. Eight hours labor constitutes a legal day's work in all cases where
the same is performed under the authority of any law of this State, or under
the direction, or control, or by the authority of any officer of this State
acting in his official capacity, or under the direction, or control or by the
authority of any municipal corporation, or of any officer thereof. A
stipulation to that effect shall be made a part of all contracts to which the
State or any municipal corporation therein is a party.
1811. The time of service of any workman employed upon public work is
limited and restricted to 8 hours during any one calendar day, and 40 hours
during any one calendar week, except as hereinafter provided for under
Section 1815.
1812. Every contractor and subcontractor shall keep an accurate record
showing the name of and actual hours worked each calendar day and each
calendar week by each worker employed by him or her in connection with the
public work. The record shall be kept open at all reasonable hours to the
inspection of the awarding body and to the Division of Labor Standards
Enforcement.
1813. The contractor or subcontractor shall, as a penalty to the state or
political subdivision on whose behalf the contract is made or awarded,
forfeit twenty -five dollars ($25) for each worker employed in the execution
of the contract by the respective contractor or subcontractor for each
calendar day during which the worker is required or permitted to work more
than 8 hours in any one calendar day and 40 hours in any one calendar week in
violation of the provisions of this article. In awarding any contract for
public work, the awarding body shall cause to be inserted in the contract a
stipulation to this effect. The awarding body shall take cognizance of all
violations of this article committed in the course of the execution of the
contract, and shall report them to the Division of Labor Standards
Enforcement.
1814. Any officer, agent, or representative of the State or any political
subdivision who violates any provision of this article and any contractor or
subcontractor or agent or representative thereof doing public work who
neglects to comply with any provision of Section 1812 is guilty of a
misdemeanor.
1815. Notwithstanding the provisions of Sections 1810 to 1814, inclusive, of
this code, and notwithstanding any stipulation inserted in any contract
pursuant to the requirements of said sections, work performed by employees of
contractors in excess of 8 hours per day, and 40 hours during any one week,
shall be permitted upon public work upon compensation for all hours worked in
excess of 8 hours per day at not less than 11/2 times the basic rate of pay.
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Exhibit A
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1860. The awarding body shall cause to be inserted in every public works
contract a clause providing that, in accordance with the provisions of
Section 3700 of the Labor Code, every contractor will be required to secure
the payment of compensation to his employees.
1861. Each contractor to whom a public works contract is awarded shall sign
and file with the awarding body the following certification prior to
performing the work of the contract: "I am aware of the provisions of
Section 3700 of the Labor Code which require every employer to be insured
against liability for workers' compensation or to undertake self - insurance in
accordance with the provisions of that code, and I will comply with such
provisions before commencing the performance of the work of this contract."
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