Amended in Assembly March 21, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 972

Introduced by Assembly Member Ian Calderon

February 22, 2013

An act to amend begin delete Section 1773.9 end delete begin insert Sections 108.2 and 1776 end insert of the Labor Code, relating to begin delete public works end delete begin insert employment end insert .

LEGISLATIVE COUNSEL’S DIGEST

AB 972, as amended, Ian Calderon. begin delete Public works: prevailing wage rates. end delete begin insert Employment: electricians: certification. end insert

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Existing law requires the Division of Labor Standards Enforcement of the Department of Industrial Relations to maintain minimum standards for the competency and training of electricians through a system of testing and certification. Existing law requires an individual who performs work as an electrician for contractors licensed as class C-10 electrical contractors, as specified, to become certified.

end insert begin insert

This bill would require an individual employed on a construction job site by a class C-10 electrical contractor to display his or her license on his or her person while on the job site. Under the bill, only an individual displaying his or her license at the time of a site inspection is considered a licensee for purposes of determining compliance.

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Existing law requires that, except as specified, not less than the general prevailing rate of per diem wages, determined by the Director of Industrial Relations, be paid to workers employed on public works projects. begin delete Existing law requires the body awarding a contract for a public work to obtain from the Director of Industrial Relations the general prevailing rate of per diem wages for work of a similar character in the locality where the public work is to be performed, and the general prevailing rate of per diem wages for holiday and overtime work, for each craft, classification, or type of worker needed to execute the contract. Under existing law, the director is required to use a specified methology to determine the prevailing rate of per diem wages in the locality where the public work is to be performed. end delete begin insert Under existing law, contractors and subcontractors are required to keep payroll records that include, among other things, the name, address, and work classification of each journeyman, apprentice, worker, or other employee employed in connection with the public works project. A contractor end insert begin insert or subcontractor, or agent or representative thereof, doing public work who neglects to comply with those provisions is guilty of a misdemeanor. end insert

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This bill would require payroll records for projects that use an electrician to include the electrician’s state certification number. By expanding the scope of a crime, this bill would impose a state-mandated local program.

end insert begin insert

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end insert begin insert

This bill would provide that no reimbursement is required by this act for a specified reason.

end insert begin delete

This bill would make technical, nonsubstantive changes to those provisions.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

end insert

begin insert Section 108.2 of the end insert begin insert Labor Code end insert begin insert is amended to
read: end insert

108.2.  

(a) Persons who perform work as electricians shall
become certified pursuant to Section 108. Uncertified persons shall
not perform electrical work for which certification is required.

(b) (1) Certification is required only for those persons who
perform work as electricians for contractors licensed as class C-10
electrical contractors under the Contractors’ State License Board
Rules and Regulations.

(2) Certification is not required for persons performing work
for contractors licensed as class C-7 low voltage systems or class
C-45 electric sign contractors as long as the work performed is
within the scope of the class C-7 or class C-45 license, including
incidental and supplemental work as defined in Section 7059 of
the Business and Professions Code, and regardless of whether the
same contractor is also licensed as a class C-10 contractor.

(3) Certification is not required for work performed by a worker
on a high-voltage electrical transmission or distribution system
owned by a local publicly owned electric utility, as defined in
Section 224.3 of the Public Utilities Code; an electrical corporation,
as defined in Section 218 of the Public Utilities Code; a person,
as defined in Section 205 of the Public Utilities Code; or a
corporation, as defined in Section 204 of the Public Utilities Code;
when the worker is employed by the utility or a licensed contractor
principally engaged in installing or maintaining transmission or
distribution systems.

(4) Individuals desiring to be certified shall submit an
application for certification and examination that includes an
employment history report from the Social Security Administration.
The individual may redact his or her social security number from
the employment history report before it is submitted.

begin insert

(5) An individual employed on a construction job site by a class
C-10 electrical contractor shall visibly display his or her license
on his or her person while on the construction job site. Only an
individual displaying his or her license at the time of a site
inspection shall be considered a licensee when determining
compliance with this section.

end insert

(c) The division shall maintain separate certifications for general
electrician, fire/life safety technician, residential electrician, voice
data video technician, and nonresidential lighting technician.

(d) Notwithstanding subdivision (a), certification is not required
for registered apprentices performing electrical work as part of an
apprenticeship program approved under Chapter 4 of Division 3
(commencing with Section 3070), a federal Office of
Apprenticeship program, or a state apprenticeship program
authorized by the federal Office of Apprenticeship. An apprentice
who is within one year of completion of his or her term of
apprenticeship shall be permitted to take the certification
examination and, upon passing the examination, shall be certified
immediately upon completion of the term of apprenticeship.

(e) Notwithstanding subdivision (a), certification is not required
for any person employed pursuant to Section 108.4.

(f) Notwithstanding subdivision (a), certification is not required
for a nonresidential lighting trainee (1) who is enrolled in an
on-the-job instructional training program approved by the Chief
of the Division of Apprenticeship Standards pursuant to Section
3090, and (2) who is under the onsite supervision of a
nonresidential lighting technician certified pursuant to Section
108.

(g) Notwithstanding subdivision (a), the qualifying person for
a class C-10 electrical contractor license issued by the Contractors’
State License Board need not also be certified pursuant to Section
108 to perform electrical work for that licensed contractor or to
supervise an uncertified person employed by that licensed
contractor pursuant to Section 108.4.

(h) The following shall constitute additional grounds for
disciplinary proceedings, including suspension or revocation of
the license of a class C-10 electrical contractor pursuant to Article
7 (commencing with Section 7090) of Chapter 9 of Division 3 of
the Business and Professions Code:

(1) The contractor willfully employs one or more uncertified
persons to perform work as electricians in violation of this section.

(2) The contractor willfully fails to provide the adequate
supervision of uncertified workers required by paragraph (3) of
subdivision (a) of Section 108.4.

(3) The contractor willfully fails to provide adequate supervision
of apprentices performing work pursuant to subdivision (d).

(i) The Labor Commissioner shall maintain a process for
referring cases to the Contractors’ State License Board when it
has been determined that a violation of this section has likely
occurred. The Labor Commissioner shall have a memorandum of
understanding with the Registrar of Contractors in furtherance of
this section.

(j) Upon receipt of a referral by the Labor Commissioner
alleging a violation under this section, the Registrar of Contractors
shall open an investigation. Any disciplinary action against the
licensee shall be initiated within 60 days of the receipt of the
referral. The Registrar of Contractors may initiate disciplinary
action against any licensee upon his or her own investigation, the
filing of any complaint, or any finding that results from a referral
from the Labor Commissioner alleging a violation under this
section. Failure of the employer or employee to provide evidence
of certification or trainee status shall create a rebuttable
presumption of violation of this provision.

(k) For the purposes of this section, “electricians” has the same
meaning as the definition set forth in Section 108.

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 1776 of the end insert begin insert Labor Code end insert begin insert is amended to read: end insert

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. begin insert In addition, projects
that require the use of an electrician end insert begin insert shall also provide the
electrician’s state certification number on the payroll records
below his or her name. end insert 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
and the Division of Labor Standards Enforcement 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
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) Except as provided in subdivision (f), 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 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) (1) Notwithstanding any other provision of law, agencies
that are included in the Joint Enforcement Strike Force on the
Underground Economy established pursuant to Section 329 of the
Unemployment Insurance Code and other law enforcement
agencies investigating violations of law shall, upon request, be
provided nonredacted copies of certified payroll records. Any
copies of records or certified payroll made available for inspection
and furnished upon request to the public by an agency included in
the Joint Enforcement Strike Force on the Underground Economy
or to a law enforcement agency investigating a violation of law
shall be marked or redacted to prevent disclosure of an individual’s
name, address, and social security number.

(2) An employer shall not be liable for damages in a civil action
for any reasonable act or omission taken in good faith in
compliance with this subdivision.

(g) 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.

(h) 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 one hundred dollars ($100) for each calendar day, or portion
thereof, for each worker, until strict compliance is effectuated.
Upon the request of 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.

(i) The body awarding the contract shall cause to be inserted in
the contract stipulations to effectuate this section.

(j) 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.

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begin insert SEC. 3. end insert   

end insert begin insert

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

end insert

begin delete

SECTION 1.  

Section 1773.9 of the Labor Code is amended to
read:

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 where 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 a single rate is
not 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 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 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.

end delete