1770-1781
LABOR CODE
SECTION 1770-1781
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 public work or some part thereof was
performed, or not later than 180 days after acceptance of the public
work, whichever last occurs.
1771.3. (a) (1) The State Public Works Enforcement Fund is hereby
created as a special fund in the State Treasury. Notwithstanding
Section 13340 of the Government Code, moneys in the fund shall be
continuously appropriated for the purposes the Department of
Industrial Relations' enforcement of prevailing wage requirements
applicable to public works pursuant to this chapter, and labor
compliance enforcement as set forth in subdivision (b) of Section
1771.55, and shall not be used or borrowed for any other purpose.
(2) The Director of Industrial Relations, with the approval of the
Director of Finance, shall determine and assess a fee on any
awarding body using funds derived from any bond issued by the state
to fund public works projects, in an amount not to exceed one-fourth
of 1 percent of the bond proceeds. The fee shall be set to cover the
expenses of the Department of Industrial Relations for administering
the prevailing wage requirements on public works projects using those
bond funds. The fee shall be payable by the board, commission,
department, agency, or official responsible for the allocation of
bond proceeds from the bond funds awarded to each project at the time
the funds are released to the project or other such time the
Department of Industrial Relations and the entity responsible for
allocation of the bond proceeds may agree. All fees collected
pursuant to this section shall be deposited in the State Public Works
Enforcement Fund, and shall be used only for enforcement of
prevailing wage requirements on projects using bond funds and other
projects for which awarding bodies pay into the fund. The
administration and enforcement of prevailing wage requirements is an
administrative expense associated with public works construction.
(b) The fee imposed by this section shall not apply to any
contract awarded prior to the effective date of regulations adopted
by the department pursuant to paragraph (2) of subdivision (b) of
Section 1771.55.
(c) The department shall report to the Legislature, not later than
March 1, 2011, on its administration of the State Public Works
Enforcement Fund, and the prevailing wage enforcement activities
undertaken by the department utilizing that funding.
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 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.
1771.55. (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 undertake all of the
following for every public works project under the authority of the
awarding body:
(1) Ensure that all bid invitations and public works contracts
contain appropriate language concerning the requirements of this
chapter.
(2) Conduct a prejob conference with the contractor and
subcontractor to discuss federal and state labor law requirements
applicable to contract.
(3) Pay a fee to the Department of Industrial Relations for the
enforcement of prevailing wage obligations in an amount that the
department shall establish, and as it may from time to time amend, in
an amount not to exceed one-fourth of 1 percent of the total public
works project costs, sufficient to support the department's costs in
ensuring compliance with and enforcing prevailing wage requirements
on the project. All fees collected pursuant to this subdivision shall
be deposited in the State Public Works Enforcement Fund created by
Section 1771.3, and shall be used only for enforcement of prevailing
wage requirements on those projects.
(b) For all projects required to pay a fee into the State Public
Works Enforcement Fund, the Department of Industrial Relations shall
do the following:
(1) Review on a monthly basis, and if appropriate, audit payroll
records to verify compliance with this chapter.
(2) Adopt reasonable regulations setting forth the manner in which
the department will ensure compliance with and enforce prevailing
wage requirements on the project. In adopting these regulations, the
department shall give consideration to the duties of labor compliance
programs as set forth in Sections 16421 to 16439, inclusive, of
Title 8 of the California Code of Regulations.
(c) The department may waive the fee set forth in this section for
an awarding body that has previously been granted approval by the
director to initiate and operate a labor compliance program on the
awarding body's projects, and that requests to continue to operate
that labor compliance program on its projects in lieu of labor
compliance by the department pursuant to subdivision (b). This fee
shall not be waived for an awarding body that contracts with a third
party to initiate and enforce labor compliance programs on the
awarding body's projects.
(d) Subdivisions (a) and (c) of this section shall only apply to a
contract awarded on or after both the effective date of the
department's adoption of the fee set forth in subdivision (a) and of
regulations pursuant to paragraph (2) of subdivision (b).
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.
(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).
(B) The State Allocation Board shall 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.
(f) This section shall not apply to a contract awarded on or after
the latter of the effective date of regulations adopted by the
Department of Industrial Relations pursuant to paragraph (2) of
subdivision (b) of Section 1771.55 or the effective date of the fees
adopted by the department pursuant to Section 1771.75.
1771.75. (a) 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 pay a
fee to the Department of Industrial Relations, in an amount that the
department shall establish, and as it may from time to time amend, in
an amount not to exceed one-fourth of 1 percent of the bond
proceeds, sufficient to support the department's costs in ensuring
compliance with and enforcing prevailing wage requirements on the
project, and labor compliance enforcement as set forth in subdivision
(b) of Section 1771.55. All fees collected pursuant to this
subdivision shall be deposited in the State Public Works Enforcement
Fund created by Section 1771.3, and shall be used only for
enforcement of prevailing wage requirements on those projects. The
department may waive the fee set forth in this section for an
awarding body that has previously been granted approval by the
director to initiate and operate a labor compliance program on the
awarding body's projects, and requests to continue to operate that
labor compliance program on its projects in lieu of labor compliance
by the department pursuant to subdivision (b) of Section 1771.55.
This fee shall not be waived for an awarding body that contracts with
a third party to initiate and enforce labor compliance programs on
the awarding body's projects.
(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 and the chancellor is required by
subdivision (a) to pay a fee to the Department of Industrial
Relations.
(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 pay a fee to the Department of Industrial
Relations, then the university shall review the payroll records on at
least a monthly basis to ensure the university's compliance with
prevailing wage obligations.
(d) The State Allocation Board shall notify the Department of
Industrial Relations of awarding bodies that are awarded funds
subject to the fee required by subdivision (a).
(e) Notwithstanding Section 17070.63 of the Education Code, for
purposes of this section, 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 fee
required to be paid to the Department of Industrial Relations to
ensure compliance with and enforcement of prevailing wage laws on the
project. The State Allocation Board shall pay the fee to the
Department of Industrial Relations at the time bond funds are
released to the awarding body. All fees collected pursuant to this
subdivision shall be deposited in the State Public Works Enforcement
Fund created by Section 1771.3.
(f) This section shall only apply to a contract awarded on or
after both the effective date of the department's adoption of the fee
set forth in subdivision (a) and of regulations pursuant to
paragraph (2) of subdivision (b) of Section 1771.55.
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.
(c) This section shall not apply to a contract awarded on or after
the latter of the effective date of the regulations adopted by the
Department of Industrial Relations pursuant to paragraph (2) of
subdivision (b) of Section 1771.55 or the effective date of the fees
adopted by the department pursuant to Section 1771.85.
1771.85. (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 pay a fee to the Department of Industrial Relations, in
an amount that the department shall establish, and as it may from
time to time amend, in an amount not to exceed one-fourth of 1
percent of the bond proceeds, sufficient to support the department's
costs in ensuring compliance with and enforcing prevailing wage
requirements on the project, and labor compliance enforcement as set
forth in subdivision (b) of Section 1771.55. All fees collected
pursuant to this subdivision shall be deposited in the State Public
Works Enforcement Fund created by Section 1771.3, and shall be used
only for enforcement of prevailing wage requirements on those
projects. The department may waive the fee set forth in this section
for an awarding body that has previously been granted approval by the
director to initiate and operate a labor compliance program on the
awarding body's projects, and requests to continue to operate that
labor compliance program on its projects in lieu of labor compliance
by the department pursuant to subdivision (b) of Section 1771.55.
This fee shall not be waived for an awarding body that contracts with
a third party to initiate and enforce labor compliance programs on
the awarding body's projects.
(b) This section shall only apply to a contract awarded on or
after both the effective date of the department's adoption of the fee
set forth in subdivision (a) and of regulations pursuant to
paragraph (2) of subdivision (b) of Section 1771.55.
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 pay a fee to the Department of
Industrial Relations, in an amount that the department shall
establish, and as it may from time to time amend, in an amount not to
exceed one-fourth of 1 percent of the bond proceeds, sufficient to
support the department's costs in ensuring compliance with and
enforcing prevailing wage requirements on the project, and labor
compliance enforcement as set forth in subdivision (b) of Section
1771.55. All fees collected pursuant to this subdivision shall be
deposited in the State Public Works Enforcement Fund created by
Section 1771.3, and shall be used only for enforcement of prevailing
wage requirements on those projects. The department may waive the fee
set forth in this section for an awarding body that has previously
been granted approval by the director to initiate and operate a labor
compliance program on the awarding body's projects, and requests to
continue to operate that labor compliance program on its projects in
lieu of labor compliance by the department pursuant to subdivision
(b) of Section 1771.55. This fee shall not be waived for an awarding
body that contracts with a third party to initiate and enforce labor
compliance programs on the awarding body's projects.
(b) This section shall apply only to a contract awarded on or
after both the effective date of the department's adoption of the fee
set forth in subdivision (a) and of regulations pursuant to
paragraph (2) of subdivision (b) of Section 1771.55.
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 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 any 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 of 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 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 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 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 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,
1777.5, 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.
(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 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 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 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 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.
(l) 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