BILL NUMBER: AB 972 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 21, 2013
INTRODUCED BY Assembly Member Ian Calderon
FEBRUARY 22, 2013
An act to amend Section 1773.9 Sections
108.2 and 1776 of the Labor Code, relating to public
works employment .
LEGISLATIVE COUNSEL'S DIGEST
AB 972, as amended, Ian Calderon. Public works:
prevailing wage rates. Employment: electricians:
certification.
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.
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.
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. 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. 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 or subcontractor, or agent or representative
thereof, doing public work who neglects to comply with those
provisions is guilty of a misdemeanor.
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.
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.
This bill would provide that no reimbursement is required by this
act for a specified reason.
This bill would make technical, nonsubstantive changes to those
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 108.2 of the Labor
Code is amended to read:
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.
(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.
(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.
SEC. 2. Section 1776 of the Labor Code
is amended to read:
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. In addition, projects that
require the use of an electrician shall also provide the
electrician's state certification number on the payroll records below
his or her name. 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.
SEC. 3. 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.
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.