[Approved by Governor August 27, 2013. Filed with Secretary of State August 27, 2013.]
SB 776, 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.
The people of the State of California do enact as follows:
Section 1773.1 of the Labor Code is amended to read:
(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.
(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.
(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.