BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 45
                                                                  Page  1

          Date of Hearing:   August 19, 2009

                        ASSEMBLY COMMITTEE ON APPROPRIATIONS
                                Kevin De Leon, Chair

                     SB 45 (Padilla) - As Amended:  June 3, 2009 

          Policy Committee:                             Labor and  
          Employment   Vote:                            5-2

          Urgency:     No                   State Mandated Local Program:  
          No     Reimbursable:              

           SUMMARY  

          This bill provides that a contractor or subcontractor found by  
          the Labor Commissioner to be in willful violation of public  
          works laws (or in violation of public works laws with intent to  
          defraud) for a second and subsequent violation will be  
          permanently ineligible for public works contract awards, and be  
          prohibited from performing work as a subcontractor on public  
          works contracts.

           FISCAL EFFECT  

          DIR indicates that it will experience added legal expenses,  
          potentially in the range of $95,000 per year for a one-half time  
          legal counsel. The expenses will occur to the extent that  
          companies facing permanent debarment pursue a more robust  
          defense of their actions. 

           COMMENTS  

           1 Background . Existing law provides that whenever a contractor  
            or subcontractor has been found by the Labor Commissioner to  
            be in violation of public works laws with an intent to  
            defraud, the entity shall be ineligible for a period of one to  
            three years from bidding on or being awarded a public works  
            contract, or performing work as a subcontractor on a public  
            works contract.

            It also provides that whenever a contractor or a subcontractor  
            has been found by the Labor Commissioner to be in willful  
            violation of public works laws for a second and subsequent  
            time within a three year period, the entity shall be  








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            ineligible for an up to 3-year period from bidding on or being  
            awarded a public works contract, or performing work as a  
            subcontractor on a public works contract.

            A "willful" violation occurs when a 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."

            According to the most recent annual report of the Bureau of  
            Field Enforcement within the Department of Industrial  
            Relations, in 2008 the Labor Commissioner signed orders of  
            debarment for seven contractors.  Each of these orders imposed  
            the maximum statutory debarment period of three years.  In  
            addition, the Labor Commissioner initiated debarment actions  
            against three additional contractors and their principles for  
            failure to pay for all hours worked, falsified certified  
            payroll records, misclassification of workers, and failure to  
            pay correct prevailing wage rates.     

           2)Rationale  . This bill is intended to address the problem of  
            employers misclassifying employees and independent  
            contractors. The sponsors (California State Building and  
            Construction Trades Council, AFL-CIO and the California State  
            Council of Laborers) contend that employee misclassification  
            creates severe challenges for workers, lawful employers and  
            insurers, as well as for policy enforcement. They further  
            contend that misclassification can also result in lost payment  
            of taxes to state government.

           3)Opponents  (the Western Electrical Contractors Association)  
            state that they are troubled by the focus on punishment, and  
            suggest that one alternative would be to subject contractors  
            found to have willfully violated the law to mandatory  
            supervision for a period of time by the state, with the  
            contractor obligated to pay an administrative fine to cover  
            the costs of supervision.
           
          4)Prior legislation  . The author has introduced two bills over  
            the last few years dealing with independent contractor  
            misclassification.  Senate Bill 622 (Padilla) of 2007 would  
            have increased monetary penalties for intentional  
            misclassification of employees as independent contractors.   
            That measure was approved by the Legislature but vetoed.   
            Senate Bill 1490 (Padilla) of 2008 would have required  








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            employers to notify individuals classified as independent  
            contractors of that classification and provide these persons  
            with information regarding their rights under current law.   
            That bill was held in the Senate Committee on Appropriations.

           Analysis Prepared by  :    Brad Williams / APPR. / (916) 319-2081