Amended in Assembly April 17, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 1336

Introduced by Assembly Member Frazier

February 22, 2013

An act to amend Sections 1771.2 and 1776 of the Labor Code, relating to public works.

LEGISLATIVE COUNSEL’S DIGEST

AB 1336, as amended, Frazier. Prevailing wages: payroll records.

Existing law requires contractors engaged in public works to pay employees the prevailing wage, as determined by the Director of Industrial Relations, and to comply with requirements relating to recordkeeping and employee work schedules. A joint labor-management committee, established pursuant to a specified provision of federal law, is authorized to bring an action against any employer who fails to pay prevailing wages as required by state law. The action is required to be commenced not later than 180 days after the filing of a valid notice of completion in the office of the county recorder in each county in which the public work, or some part thereof, was performed, or not later than 180 days after acceptance of the public work, whichever occurs last.

This bill would delete the requirement that the action be commenced not later than 180 days after the filing of a valid notice of completion, as prescribed, or not later than 180 days after acceptance of the public work, whichever occurs last, and would instead require that the action be commenced not later than begin delete 3 years end delete begin insert 24 months end insert after the wages were due. begin delete The bill would authorize a joint labor-management committee, through its employees or designated representatives, to visit any public works project site to monitor compliance with applicable statutes by any contractor or subcontractor performing work on the site, as long as employees or representatives of the committee comply with reasonable safety rules and do not disrupt performance of the work. end delete The bill would begin delete also end delete require, among other things, the court, in an action on prevailing wages, to award restitution to an employee for unpaid wages, plus interest, from the date the wages became payable, and would authorize the imposition of civil penalties, injunctive relief, or any other appropriate equitable relief.

Existing law requires each contractor and subcontractor to 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. Any copy of records made available for inspection by, or furnished to, a joint labor-management committee is required to be marked or obliterated only to prevent disclosure of an individual’s name and social security number.

This bill would instead require that any copy of payroll records made available for inspection by, or furnished to, a joint labor-management committee, established pursuant to federal law, is required to be marked or obliterated only to prevent disclosure of an individual’s social security number. The bill would also require that any copy of records made available for inspection by, or furnished to, a multiemployer Taft-Hartley trust fund that requests the records for the purposes of allocating contributions to participants be marked or obliterated only to prevent disclosure of an individual’s full social security number, but provide the last 4 digits of the social security number.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

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

SECTION 1.  

Section 1771.2 of the Labor Code is amended to
read:

1771.2.  

(a) A joint labor-management committee established
pursuant to the federal Labor Management Cooperation Act of
1978 (29 U.S.C. Sec. 175a) may bring an action in any court of
competent jurisdiction against an employer that fails to pay the
prevailing wage to its employees, as required by this article. This
action shall be commenced not later than begin delete three years end delete begin insert 24 months end insert
after the wages were due.

begin delete

(b) A joint labor-management committee established pursuant
to the federal Labor Management Cooperation Act of 1978 (29
U.S.C. Sec. 175a), through its employees or designated
representatives, may visit any public works project site to monitor
compliance with this chapter by any contractor or subcontractor
performing work on the site, provided that employees or
representatives of the committee comply with reasonable safety
rules and do not disrupt the performance of work.

(c)

end delete

begin insert ( end insert begin insert b) end insert  (1) In an action brought pursuant to this section, the court
shall award restitution to an employee for unpaid wages, plus
interest, under Section 3289 of the Civil Code from the date that
the wages became due and payable, and liquidated damages equal
to the amount of unpaid wages owed, and may impose civil
penalties in accordance with Section 1775, injunctive relief, or
any other appropriate form of equitable relief. The court shall
award a prevailing joint labor management committee its
reasonable attorney’s fees and costs incurred in maintaining the
action, including expert witness fees.

(2) An action pursuant to this section shall not be based on the
employer’s misclassification of the craft of a worker in its certified
payroll records.

(3) This subdivision does not limit any other available remedies
for a violation of this chapter.

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. 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 multiemployer
Taft-Hartley trust fund (29 U.S.C. Sec. 186(c)(5)) that requests
the records for the purposes of allocating contributions to
participants shall be marked or obliterated only to prevent
disclosure of an individual’s full social security number, but shall
provide the last four digits of the social security number. 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 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.