BILL NUMBER: SB 362 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 4, 2011
INTRODUCED BY Senator Berryhill
FEBRUARY 15, 2011
An act to amend Section 4660 Sections
1777.7 and 3075 of the Labor Code, relating to workers'
compensation. employment.
LEGISLATIVE COUNSEL'S DIGEST
SB 362, as amended, Berryhill. Workers' compensation:
permanent disability rating schedule. Employment:
apprenticeships.
(1) Existing law requires that the ratio of apprentice work to
journeyman work performed on public works be not less than one hour
of apprentice's work for every 5 hours by a journeyman. A violation
of this provision is punishable by a civil penalty calculated based
on the number of days of noncompliance. In the event of a willful,
serious violation of this provision, the Director of Industrial
Relations may also debar the contractor from bidding on public works
projects, as specified.
This bill would provide for additional civil penalties, calculated
based on hours and wage rates, as specified, for a contractor or
subcontractor who fails to employ enough apprentice labor on a public
works project.
(2) Existing law provides that an apprenticeship program may be
administered by a joint apprenticeship committee, unilateral
management or labor apprenticeship committee, or an individual
employer and provides specified conditions for the establishment of
new apprenticeship programs in the building and construction trades.
This bill would remove the specified conditions required for the
establishment of a new apprenticeship program in the building and
construction trades.
Existing law establishes a workers' compensation system,
administered by the Administrative Director of the Division of
Workers' Compensation, to compensate an employee for injuries
sustained in the course of his or her employment.
Existing law requires the administrative director to formulate a
rating schedule for determining the percentage of an injured employee'
s permanent disability in accordance with certain criteria.
This bill would make a technical, nonsubstantive change to the
above-described provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1777.7 of the Labor
Code is amended to read:
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 , except as provided for in
paragraph (2), 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
, except as provided for in paragraph (2), 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) Where the violation is for failing to employ an apprentice, in
addition to the penalties set forth in paragraph (1), a contractor
or subcontractor shall also forfeit as a civil penalty an amount not
exceeding the sum determined as follows:
(A) First, calculate the total journeyman hours worked in each
craft on the project that could have been performed by an apprentice.
(B) Multiply the hours for each craft by the ratio of apprentice
hours required by Section 1777.5.
(C) Deduct the actual number of apprentice hours worked by
state-registered apprentices, as defined by Section 3077, of the same
craft on the project for that employer.
(D) Multiply the resulting difference by the total hourly wage
rate for the final period apprentice in that craft, according to the
wage determination applicable to the specified project.
(2)
(3) In lieu of the penalty
penalties 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.
(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,
1777.5, 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 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.
SEC. 2. Section 3075 of the Labor Code
is amended to read:
3075. (a) An apprenticeship program may be
administered by a joint apprenticeship committee, unilateral
management or labor apprenticeship committee, or an individual
employer. Programs may be approved by the chief in any trade in the
state or in a city or trade area , whenever the apprentice
training needs justify the establishment . Where a
collective bargaining agreement exists, a program shall be jointly
sponsored unless either party to the agreement waives its right to
representation in writing. Joint apprenticeship committees shall be
composed of an equal number of employer and employee representatives.
(b) For purposes of this section, the apprentice training needs in
the building and construction trades shall be deemed to justify the
approval of a new apprenticeship program only if any of the following
conditions are met:
(1) There is no existing apprenticeship program approved under
this chapter serving the same craft or trade and geographic area.
(2) Existing apprenticeship programs approved under this chapter
that serve the same craft or trade and geographic area do not have
the capacity, or neglect or refuse, to dispatch sufficient
apprentices to qualified employers at a public works site who are
willing to abide by the applicable apprenticeship standards.
(3) Existing apprenticeship programs approved under this chapter
that serve the same trade and geographic area have been identified by
the California Apprenticeship Council as deficient in meeting their
obligations under this chapter.
(c) Notwithstanding subdivision (b), the California Apprenticeship
Council may approve a new apprenticeship program if special
circumstances, as established by regulation, justify the
establishment of the program.
SECTION 1. Section 4660 of the Labor Code is
amended to read:
4660. (a) In determining the percentages of permanent disability,
account shall be taken of the nature of the physical injury or
disfigurement, the occupation of the injured employee, and his or her
age at the time of the injury, consideration being given to an
employee's diminished future earning capacity.
(b) (1) For purposes of this section, the "nature of the physical
injury or disfigurement" shall incorporate the descriptions and
measurements of physical impairments and the corresponding
percentages of impairments published in the American Medical
Association (AMA) Guides to the Evaluation of Permanent Impairment
(5th Edition).
(2) For purposes of this section, an employee's diminished future
earning capacity shall be a numeric formula based on empirical data
and findings that aggregate the average percentage of long-term loss
of income resulting from each type of injury for similarly situated
employees. The administrative director shall formulate the adjusted
rating schedule based on empirical data and findings from the
Evaluation of California's Permanent Disability Rating Schedule,
Interim Report (December 2003), prepared by the RAND Institute for
Civil Justice, and upon data from additional empirical studies.
(c) The administrative director shall amend the schedule for the
determination of the percentage of permanent disability in accordance
with this section at least once every five years. This schedule
shall be available for public inspection and, without formal
introduction in evidence, shall be prima facie evidence of the
percentage of permanent disability to be attributed to each injury
covered by the schedule.
(d) The schedule shall promote consistency, uniformity, and
objectivity. The schedule and any amendment thereto or revision
thereof shall apply prospectively and shall apply to and govern only
those permanent disabilities that result from compensable injuries
received or occurring on and after the effective date of the adoption
of the schedule, amendment or revision, as the fact may be. For
compensable claims arising before January 1, 2005, the schedule as
revised pursuant to changes made in legislation enacted during the
2003-04 Regular and Extraordinary Sessions shall apply to the
determination of permanent disabilities when there has been either no
comprehensive medical-legal report or no report by a treating
physician indicating the existence of permanent disability, or when
the employer is not required to provide the notice required by
Section 4061 to the injured worker.
(e) On or before January 1, 2005, the administrative director
shall adopt regulations to implement the changes made to this section
by Chapter 34 of the Statutes of 2004.