BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
Ted W. Lieu, Chair
Date of Hearing: June 8, 2011 2011-2012 Regular
Session
Consultant: Gideon L. Baum Fiscal:No
Urgency: No
Bill No: AB 587
Author: Gordon
Version: As Introduced February 16, 2011
SUBJECT
Public works: volunteers.
KEY ISSUE
Should the Legislature allow volunteers to continue to perform
certain work on public works projects by extending the sunset
date, from January 1, 2012 to January 1, 2017, on the exemption
that allows volunteers to perform such work and not be paid the
prevailing wage, as otherwise required?
PURPOSE
To extend the sunset for the exemption of volunteers from public
works requirements.
ANALYSIS
Existing law public works as any construction, alteration,
demolition, installation or repair work done under contract and
paid for in whole or in part from public funds. This includes
work performed during the design and pre-construction phase,
including, but not limited to, inspection and land surveying.
Existing law requires, with certain exceptions, contracted
public works projects to be submitted for bids by the public
entity requesting the work, and that the contract is awarded to
the lowest responsible bidder. The awarding body is required to
ensure that the winning contractor is appropriately licensed
with the Contractors' State Licensing Board, and has not been in
barred from bidding on, accepting, or performing public
contracts.
Existing law requires all employees who work on public works
projects with a budget of $1,000 or more to be paid the general
prevailing rate of per diem wages and the general prevailing
rate for holiday and overtime work for the specific location
where the public work is to be performed. This prevailing wage
is determined by the Department of Industrial Relations.
Existing law exempts from public work requirements any project
where the Department of Fish and Game (DFG) contracts with
public agencies, Indian tribes, or nonprofit organizations for
fish and wildlife habitat preservation, restoration, and
enhancement. Existing law also allows the DFG to contract with
public and private entities for fish and wildlife habitat
preservation, restoration, and enhancement, but these contracts
are only exempt from public work requirements if they are less
than $50,000 (Fish and Game Code §1501.5).
Existing law exempts any work performed by volunteers from the
public works requirements, but the exemption allowing volunteers
on public works projects is set to expire on January 1, 2012.
Under existing law volunteers are defined as:
Individuals who perform works for civic, charitable, or
humanitarian reasons for a public agency or tax-exempt
organization, such as a 501(c)(3), without any compensation;
Volunteer coordinators.
Members of the California Conservation Corps (CCC) or the
Community Conservation Corps are also exempt.
Existing law excludes from the definition of a volunteer:
Anyone who works on the public works project for
compensation; or
Anyone who received payment from the contractor on the public
works project for construction, alteration, demolition,
installation, repair, or maintenance work on the same
project.
This bill extends the sunset on the exemption for volunteers on
Hearing Date: June 8, 2011 AB 587
Consultant: Gideon L. Baum Page 2
Senate Committee on Labor and Industrial Relations
public works project out five years, from January 1, 2012 to
January 1, 2017.
This bill also makes findings and declarations on the intent of
the Legislature to not undermine the wage base of a community,
as well as several non-substantive amendments.
COMMENTS
1. Need for this bill?
In 2004, AB 2690 (Hancock), Chapter 330, Statutes of 2004,
created an exemption for volunteers from public works
requirements, but also included the sunset of January 1, 2009.
This bill came about from a 2003 Department of Industrial
Relations (DIR) decision, which found that a stream
restoration project using student volunteers should have paid
prevailing wages and assessed back wages and civil penalties.
At the time, the proponents argued that a public works
exemption for volunteers was needed due to the "importance of
volunteers in building community support for local projects",
many of which included environmental projects such as stream
restoration, beach clean-up, wetlands restoration, and trail
building. In 2008, this sunset was extended until January 1,
2012 by AB 2537 (Furutani), Statutes of 2008, Chapter 678.
The proponents of this bill argue that this exemption has
proven successful, and therefore it is important to extend
this exemption for an additional 5 years to allow volunteers
to continue to participate in preservation activities on
public lands, including removing invasive species, river and
beach clean-ups, and maintaining walking trails.
2. Staff Questions:
Have there been any specific instances of abuse of the
volunteer exemption by employers or any other party?
According to the Department of Industrial Relations report on
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Senate Committee on Labor and Industrial Relations
volunteer labor on public works projects, there was one
complaint involving volunteer labor on public works projects
in 2009 and 2010. In that case, a complaint was filed against
a contractor for failing to provide payroll reports for
electrical work done in a firehouse. However, the Fire Chief
for that district issued a statement confirming that eight
volunteer firemen were completing the electrical work on the
firehouse.
Prior to that complaint, the only reports of abuse received by
the Division of Labor Standards Enforcement (DLSE) was the
initial complaint from 2003.
If the sunset were deleted, what avenues for complaint or
action would be available for someone who felt the volunteer
exemption was being abused?
Any affected party, including the body that awarded the
contract, can go to the Labor Commissioner and ask that an
investigation take place. If it is found that a violation has
occurred and prevailing wages should have been paid and
weren't, the Labor Commissioner is empowered to assess back
wages and penalties.
In certain cases, employees who were denied the prevailing
wage may turn to the courts for relief as well.
What workplace protections do the volunteers have while on the
job?
The Labor Code excludes individuals who volunteer for a public
agency or private non-profit organization from the definition
of an employee. Since most labor law protections are centered
on employees, this would exclude volunteers from many of the
protections and requirements employers have for their
employees, including workers' compensation . However, since
these positions are voluntary, issues like meal and rest
breaks and hours of work probably would be handled by the
volunteer.
For members of the California Conservation Corps or Community
Conservation Corps, however, wages are paid to the
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Senate Committee on Labor and Industrial Relations
participants of both of those programs, and therefore they are
covered by Workers Compensation and other labor law
protections.
3. Proponent Arguments :
Proponents argue that during these difficult fiscal times,
local government need to be able to call upon volunteers to
complete important projects and maintain local park
infrastructure. Proponents also note that hundreds of
restoration projects are taken up by local governments in
partnership with non-profits and local business, and that
project managers work hard to ensure that there is a clear
delineation between tasks for volunteers and tasks for paid
employees and contractors. Proponents also note that there
have been no reported labor law violations on environmental
and restoration projects since the public works exemption was
put in law in 2004.
4. Current Legislation:
SB 644 (Hancock), which is currently before the Assembly
Committee on Labor and Employment, is nearly identical to this
bill.
5. Prior Legislation :
AB 2537 (Furutani) Statutes of 2008, Chapter 678, was
discussed above.
AB 2690 (Hancock), Chapter 330, Statutes of 2004, created the
initial public work exemption for volunteers.
SUPPORT
American Society of Landscape Architects
Amigos De Los Rios
Hearing Date: June 8, 2011 AB 587
Consultant: Gideon L. Baum Page 5
Senate Committee on Labor and Industrial Relations
Benicia Tree Foundation
California Parks & Recreation Society
California ReLeaf
California Urban Forests Council
Canopy
City Council of the City of San Rafael
Fallbrook Land Conservancy
Friends of the UC Davis Arboretum
Goleta Valley Beautiful
Hollywood/Los Angeles Beautification Team
Huntington Beach Tree Society
Keep Eureka Beautiful
League of California Cities
Our City Forest
Roseville Urban Forest Foundation
Sacramento Tree Foundation
Santa Barbara County ReLeaf
Tree Foundation of Kern
Tree Fresno
Tree Musketeers
Tree People
Volunteers for Outdoor California
Woodland Tree Foundation
OPPOSITION
None on file.
Hearing Date: June 8, 2011 AB 587
Consultant: Gideon L. Baum Page 6
Senate Committee on Labor and Industrial Relations