BILL NUMBER: SB 776 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 15, 2013
INTRODUCED BY Senator Corbett
FEBRUARY 22, 2013
An act to amend Section 1773.1 of the Labor Code, relating to
public works.
LEGISLATIVE COUNSEL'S DIGEST
SB 776, as amended, Corbett. Public works: prevailing wage rates:
employer payment credits.
Existing law defines the term "public works" for purposes of
requirements regarding the payment of prevailing wages, the
regulation of working hours, and the securing of workers'
compensation for public works projects. Existing law further requires
that, except as specified, not less than the general prevailing rate
of per diem wages, determined by the Director of Industrial
Relations as specified, be paid to workers employed on public works
projects, and imposes misdemeanor penalties for certain violations of
this requirement.
Under the law, employer payments are a credit against the
obligation to pay the general prevailing rate of per diem wages,
except credit is not granted for benefits required under state or
federal law. Employer payments include the rate of contribution made
by the employer to a trustee or 3rd person pursuant to a plan, fund,
or program, the rate of actual costs to the employer anticipated in
providing benefits to workers pursuant to a specified enforceable
commitment, and payments to the California Apprenticeship Council.
This bill would provide that an employer may take credit for those
specified employer payments, even if those payments are not made
during the same pay period for which credit is taken, if the employer
regularly makes those payments on no less than a quarterly basis.
This bill would prohibit credit from being granted for employer
payments made to monitor and enforce laws related to public works if
those payments are not required by a collective bargaining agreement.
Existing law requires that credit for employer payments be
computed on an annualized basis when the employer seeks credit for
payments that are higher for public works projects than for private
construction by that employer, with exceptions, including if the
director determines that annualization would not serve a specified
purpose.
This bill would prohibit that exception from applying to payments
to a supplemental unemployment benefits plan or to a qualified cash
or deferred arrangement, as described.
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 1773.1 of the Labor Code is amended to read:
1773.1. (a) Per diem wages, as the term is used in this chapter
or in any other statute applicable to public works, includes employer
payments for the following:
(1) Health and welfare.
(2) Pension.
(3) Vacation.
(4) Travel.
(5) Subsistence.
(6) Apprenticeship or other training programs authorized by
Section 3093, to the extent that the cost of training is reasonably
related to the amount of the contributions.
(7) Worker protection and assistance programs or committees
established under the federal Labor Management Cooperation Act of
1978 (Section 175a of Title 29 of the United States Code), to the
extent that the activities of the programs or committees are directed
to the monitoring and enforcement of laws related to public works.
(8) Industry advancement and collective bargaining agreements
administrative fees, provided that these payments are required under
a collective bargaining agreement pertaining to the particular craft,
classification, or type of work within the locality or the nearest
labor market area at issue.
(9) Other purposes similar to those specified in paragraphs (1) to
(8), inclusive.
(b) Employer payments include all of the following:
(1) The rate of contribution irrevocably made by the employer to a
trustee or third person pursuant to a plan, fund, or program.
(2) The rate of actual costs to the employer reasonably
anticipated in providing benefits to workers pursuant to an
enforceable commitment to carry out a financially responsible plan or
program communicated in writing to the workers affected.
(3) Payments to the California Apprenticeship Council pursuant to
Section 1777.5.
(c) Employer payments are a credit against the obligation to pay
the general prevailing rate of per diem wages. However, credit shall
not be granted for benefits required to be provided by other state or
federal law, or for payments made to monitor and enforce laws
related to public works if those payments are not made to a program
or committee established under the federal Labor Management
Cooperation Act of 1978 (Section 175a of Title 29 of the United
States Code). Credits for employer payments also shall not reduce the
obligation to pay the hourly straight time or overtime wages found
to be prevailing. However, an increased employer payment contribution
that results in a lower hourly straight time or overtime wage shall
not be considered a violation of the applicable prevailing wage
determination if all of following conditions are met:
(1) The increased employer payment is made pursuant to criteria
set forth in a collective bargaining agreement.
(2) The basic hourly rate and increased employer payment are no
less than the general prevailing rate of per diem wages and the
general prevailing rate for holiday and overtime work in the director'
s general prevailing wage determination.
(3) The employer payment contribution is irrevocable unless made
in error.
(d) An employer may take credit for an employer payment specified
in subdivision (b), even if contributions are not made, or costs are
not paid, during the same pay period for which credit is taken, if
the employer regularly makes the contributions, or regularly pays the
costs, for the plan, fund, or program on no less than a quarterly
basis.
(e) The credit for employer payments shall be computed on an
annualized basis when the employer seeks credit for employer payments
that are higher for public works projects than for private
construction performed by the same employer, unless one or more of
the following occur:
(1) The employer has an enforceable obligation to make the higher
rate of payments on future private construction performed by the
employer.
(2) The higher rate of payments is required by a project labor
agreement.
(3) The payments are made to the California Apprenticeship Council
pursuant to Section 1777.5.
(4) The director determines that annualization would not serve the
purposes of this chapter. This paragraph does not apply to
employer payments made to a supplemental unemployment benefits plan
or to a qualified cash or deferred arrangement, as described in
Section 401(k) of Title 26 of the United States Code.
(f) (1) For the purpose of determining those per diem wages for
contracts, the representative of any craft, classification, or type
of worker needed to execute contracts shall file with the Department
of Industrial Relations fully executed copies of the collective
bargaining agreements for the particular craft, classification, or
type of work involved. The collective bargaining agreements shall be
filed after their execution and thereafter may be taken into
consideration pursuant to Section 1773 whenever filed 30 days prior
to the call for bids. If the collective bargaining agreement has not
been formalized, a typescript of the final draft may be filed
temporarily, accompanied by a statement under penalty of perjury as
to its effective date.
(2) When a copy of the collective bargaining agreement has
previously been filed, fully executed copies of all modifications and
extensions of the agreement that affect per diem wages or holidays
shall be filed.
(3) The failure to comply with filing requirements of this
subdivision shall not be grounds for setting aside a prevailing wage
determination if the information taken into consideration is correct.