BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 326


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          326 (Frazier)


          As Amended  June 9, 2016


          Majority vote


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          |ASSEMBLY:  | 70-0 |(January 1,    |SENATE: | 38-0 |(August 15,      |
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          Original Committee Reference:  L. & E.


          SUMMARY:  Amends existing law related to civil wage and penalty  
          assessments for prevailing wage violations.


          The Senate amendments provide that certain funds held in escrow  
          by the Department of Industrial Relations (DIR) in specified  
          prevailing wage proceedings shall be released "within 30 days"  
          following either of the specified events occurring:


          1)The conclusion of all administrative and judicial review.


          2)DIR receives written notice from the Labor Commissioner of a  
            settlement or other final disposition of an assessment or from  
            the authorized representative of the awarding body of a  
            settlement or other final disposition.









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          EXISTING LAW:


          1)Provides that after 60 days following the service of a civil  
            wage and penalty assessment for prevailing wage violations,  
            the affected contractor or subcontractor shall be liable for  
            liquidated damages in an amount equal to the wages, or portion  
            thereof, that still remain unpaid. 
          2)Provides that if the contractor or subcontractor demonstrates  
            to the satisfaction of the director of DIR that he or she had  
            substantial grounds for appealing the assessment or notice  
            with respect to a portion of the unpaid wages covered by the  
            assessment or notice, the director may exercise his or her  
            discretion to waive payment of the liquidated damages with  
            respect to that portion of the unpaid wages.


          3)Provides that there shall be no liability for liquidated  
            damages if the full amount of the assessment or notice,  
            including penalties, has been deposited with DIR within 60  
            days following service of the assessment or notice, for DIR to  
            hold in escrow pending administrative and judicial review. 


          4)Requires DIR to release such funds, plus any interest earned,  
            at the conclusion of all administrative and judicial review to  
            the persons and entities who are found to be entitled to such  
            funds.


          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee, pursuant to Senate Rule 28.8, negligible state costs.


           


          COMMENTS:  Under current law, if a wage and penalty assessment  
          for prevailing wage law violations remains unpaid for a period  
          of 60 days, the affected contractor or subcontractor is liable  
          for liquidated damages in an amount equal to the wages that  








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          remain unpaid.  The general purpose of this provision is to  
          encourage prompt payment of wages following an assessment for  
          violation of the law.


          However, current law provides that there shall be no liability  
          for liquidated damages if the contractor or subcontractor has  
          deposited the full amount of the assessment (in cash) with DIR  
          pending administrative and judicial review of the assessment.


          Existing law requires DIR to release the funds, plus any  
          interest earned, at the conclusion of all administrative and  
          judicial review to the persons and entities found to be entitled  
          to those funds. 


          According to the author, although the statute stipulates that  
          the cash funds deposited by the contractor in order to avoid  
          liquidated damages shall be released at the conclusion of all  
          administrative and judicial review, there is nothing in the  
          statute that states such funds shall be released in an expedited  
          manner.  As a result, releasing such funds can take months  
          before the contractor is reimbursed.  The author states that in  
          one case, the cash deposit was $93,608.01, and in another it was  
          $284,873.21.  In both cases, these amounts were in addition to  
          at least the equivalent amount already being withheld by the  
          awarding bodies from the general contractor's contract balance.   
          In both cases, the claims against the contractor were dropped  
          according to counsel.  However, according to the author the task  
          of getting the money back from DIR can take a long period of  
          time.


          This bill is sponsored by the Associated General Contractors who  
          state:


               It is not unusual to have contractors post significant  
               cash deposits.  An example, in one documented case the  
               contractor's civil wage and penalty assessment was  
               solely based on the misconduct of the subcontractor,  








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               yet the general contractor had to post $250,489 in  
               order to avoid liquidated damages.


               The cash deposit was held from February to August (six  
               months), where it was dismissed, and then it took  
               another three months to have the funds returned.  This  
               bill simply states that once the case has been decided  
               that the funds should be returned within 30 days.


          There is no opposition on file.


          Analysis Prepared by:                                             
                          Ben Ebbink / L. & E. / (916) 319-2091  FN:  
          0003590