BILL ANALYSIS Ó
AB 327
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Date of Hearing: May 6, 2015
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 327
(Gordon) - As Amended April 30, 2015
SUBJECT: Public works: volunteers
SUMMARY: Extends the sunset date on a public works exemption
for specified "volunteers" and other related individuals.
Specifically, this bill:
1)Extends the current January 1, 2017 sunset date in existing
law until January 1, 2024.
2)Makes related technical and conforming changes.
EXISTING LAW:
1) Requires the prevailing wage rate to be paid to all workers
on public works projects over $1,000.
2) Defines "public work" to include, among other things,
construction, alteration, demolition, installation or repair
work done under contract and paid for in whole or in part out
of public funds.
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3) Provides that the provisions of existing law dealing with the
payment of prevailing wages on public works projects do not
apply to work performed by a volunteer or volunteer
coordinator, as defined.
4) Defines a "volunteer" as an individual who performs work for
civic, charitable, or humanitarian reasons for a public
agency or 501 (c)(3) tax-exempt organization without promise,
expectation, or receipt of any compensation for work
performed.
5) Defines a "volunteer coordinator" as an individual paid by a
corporation or 501(c)(3) tax-exempt organization to oversee
or supervise volunteers.
6) Clarifies that an individual may be considered a "volunteer
coordinator" even if the individual performs some
non-supervisory work on a project alongside the volunteers,
so long as the individual's primary responsibility is to
supervise.
7) Specifies that an individual shall be considered a volunteer
only when his or her services are offered freely and without
pressure and coercion, direct or implied, from an employer.
8) Authorizes a volunteer to receive reasonable meals, lodging,
transportation, and incidental expenses or nominal
non-monetary awards if those benefits and payments are not a
substitute form of compensation.
9) Excludes from the definition of volunteer an individual if
that person is otherwise employed for compensation at any
time (a) in the construction, alteration, demolition,
installation, repair, or maintenance work on the same
project, or (2) by a contractor, other than a 501(c)(3)
tax-exempt organization, that is receiving payment to perform
construction, alteration, demolition, installation, repair or
maintenance work on the same project.
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10)Provides that the provisions of existing law dealing with the
payment of prevailing wages on public works projects do not
apply to work performed by members of the California
Conservation Corps or a certified Community Conservation
Corps.
11)Provides a January 1, 2017 sunset date to these provisions.
FISCAL EFFECT: None. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS: This bill revisits an issue that arose in 2004
concerning the use of volunteer labor on certain public works
projects. Much of the attention that arose at that time was a
result of an enforcement action taken by the Department of
Industrial Relations (DIR) in July 2003 in relation to a stream
restoration project in Shasta County.
Brief Background on California Prevailing Wage Law
A feature of California law since the 1930s, existing law
generally requires that prevailing wages be paid to all workers
employed on public works projects. (Labor Code Section 1771).
Current law defines a "public work" as construction, alteration,
demolition, installation, or repair work done under contract and
paid for in whole or in part out of public funds. (Labor Code
Section 1720).
Advocates of prevailing wage laws generally argue that such
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protections serve two important functions. First, such laws
ensure that skilled workers employed in public works projects
are paid at least the wages and benefits that "prevail" in their
local communities. Second, proponents of prevailing wages argue
that such laws make sure that unscrupulous contractors do not
import unskilled or low skilled workers from other parts of the
country who would undercut the local workforce by working for
lower pay.
SB 975 (Alarcon), Chapter 1048, Statutes of 2002, among other
things, established a definition of "paid for in whole or in
part out of public funds" that conformed to several precedential
coverage decisions made by DIR. These coverage decisions
defined payment by land, reimbursement plans, installation,
grants, waiver of fees, and other types of public subsidy as
"public funds" for purposes of prevailing wage law.
The Labor Code also sets forth a statutory methodology for
determining the prevailing wage rate. (Labor Code Section
1773.9). This methodology defines the prevailing rate as the
single rate being paid to a majority of workers engaged in a
particular craft, classification, or type of work within the
locality and in the nearest labor market area. Where no single
rate is being paid to a majority of workers the prevailing rate
is the single rate being paid to the greatest number of workers
(also referred to as the "modal rate").
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The Prior Labor Code Public Works "Volunteer" Exemption
Prior to 2004, Section 1720.4 of the Labor Code, originally
enacted in 1989, provided that "public works" shall not include
any otherwise covered work that meets all of the following
conditions:
(a)The work is performed entirely by volunteer labor.
(a)The work involves facilities or structures which are, or
will be, used exclusively by, or primarily for or on
behalf of, private nonprofit community organizations
including, but not limited to, charitable, youth,
service, veterans, and sports groups or associations.
(b)The work will not have an adverse impact on employment.
(c)The work is approved by the Director of Industrial
Relations as meeting the requirements of this section.
The previous section 1720.4 also required the Director of DIR to
request information on whether or not the work will have an
adverse impact on employment from the appropriate local or state
organization of duly authorized employee representatives of
workers employed on public works.
The July 2003 DIR Enforcement Action
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Significant media attention and controversy over this issue
following a July 2003 enforcement action by DIR stemming from a
stream restoration project in Shasta County.
In fiscal year 2000-01, the Department of Water Resources
provided grant funding to the Sacramento Watersheds Action Group
for a stream restoration project on Sulphur Creek in the City of
Redding. According to media reports, students from nearby
Shasta College were used for various activities including
planting seeds, clearing brush, repairing culverts, installing
rock beds to prevent erosion, and trash removal. The students
reportedly earned course credit for classes in watershed
restoration.
Responding to a complaint from a local labor organization, DIR
investigated and determined that, based on the submitted job
descriptions of the work performed by students and volunteers,
prevailing wages were required for the following work: willow
staking, spreading seeds and mulch, planting shrubs, operating
heavy equipment, site cleanup, off-hauling garbage, and planting
vegetation. The subsequent DIR enforcement action assessed back
wages and civil penalties.
In September 2003, the Department of Water Resources (DWR)
issued a memorandum that stated, "Due to the serious
implications to our programs that would arise from being unable
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to support volunteerism, DWR is taking a conservative approach
until these issues can be clarified?We will not enter into any
new contracts possibly affected by these issues until we have a
clearer picture of the obligations of DWR and the grantees under
the Labor Code."
The 2004 Legislative Amendments to Labor Code Section 1720.4
Following the July 2003 enforcement action, there was an outcry
among many in the environmental community that the prior Labor
Code Section 1720.4, as interpreted by DIR, effectively
prohibited the mixed use of volunteer and paid labor on public
works projects.
After lengthy negotiations between the environmental community
and representatives of organized labor, the Legislature enacted
AB 2690 (Hancock), Chapter #330, Statutes of 2004. AB 2690
amended Labor Code Section 1720.4 into its current form.
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In order to address concerns that there may be abuses of any
"volunteer" exemption to California's prevailing wage laws, AB
2690 contained a January 1, 2009 sunset date.
The 2008 Sunset Extension and DIR Report
AB 2537 (Furutani) of 2008 extended the sunset date until
January 1, 2012.
In addition, AB 2537 required DIR to submit a specified report
to the Legislature before January 1, 2011, regarding volunteers
on public works projects. According to this report, there was
one complaint involving volunteer labor on public works projects
in 2009 and 2010. In that case, a complaint was filed against a
contractor for failing to provide payroll reports for electrical
work done in a firehouse. However, the fire chief for that
district issued a statement confirming that eight volunteer
firefighters were completing the electrical work on the
firehouse.
Prior to that complaint, the only report of abuse received by
DIR was the initial complaint from 2003.
AB 587 (Gordon) from 2011
AB 587 (Gordon) from 2011 extended the sunset on the volunteer
exemption until January 1, 2017. AB 587 also deleted the
obsolete language in the law that required the DIR to submit a
specified report to the Legislature before January 1, 2011,
regarding volunteers on public works projects.
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ARGUMENTS IN SUPPORT
According to the author, for more than 10 years, this exemption
has proven a vital tool in keeping Californians connected to
both their local community and our state's environment and
natural resources in a meaningful, productive way - and without
any examples of abuse having arisen. This bill would extend
that exemption until 2024. The author states that even though
California is currently experiencing a period of economic
recovery, extending this important provision will allow
California to continue to tap into one of our greatest resources
for healthy communities and the environment - volunteerism.
The California State Parks Foundation and others argue more than
39,000 volunteers provide their time, talent and energy to the
state park system on a regular basis. Especially as public
funding to our state parks has stretched existing staff thin, it
is important that this type of volunteerism continue and, in
fact, be encouraged by the state. For this to continue,
however, it is critical that nonprofit organizations be able to
continue to recruit and deploy volunteers without the
requirement that those volunteers be paid prevailing wages.
REGISTERED SUPPORT / OPPOSITION:
Support
Amigos de Bolsa Chica
Amigos de los Rios
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Anahuak Youth Sports Association
Anderson Marsh Interpretive Association
Arroyos & Foothill Conservancy
Benicia State Parks Association
Benicia Tree Foundation
Big Sur Land Trust
Bolsa Chica Land Trust
Cache Cree Conservancy
California Association of Local Conservation Corps
California Association of School Business Officials
California Council of Land Trusts (sponsor)
California Environmental and Energy Consulting
California Invasive Plant Council
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California League of Conservation Voters
California League of Park Associations & Friends of Pio Pico
California Native Plant Society
California Park and Recreation Society
California ReLeaf
California Special Districts Association
California State Association of Counties
California State Parks Foundation
California State Railroad Museum Foundation
California Urban Forests Council
California Urban Streams Partnership
California Waterfowl Association
California Watershed Network
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CalNonprofits
Canopy
Catalina Island Conservancy
Cayucos Land Conservancy
Chino Hills State Park Interpretive Association
Citizens for East Shore Parks
City of Burbank
City of Indian Wells
Common Vision
Community Services Employment Training
Construction Employers' Association
Council for Watershed Health, Board of Directors
Defenders of Wildlife
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Ducks Unlimited
East Bay Municipal Utility District
East Bay Regional Park District
Empire Mine Park Association
Environment California
Friends of Allensworth
Friends of Balboa Park
Friends of China Camp
Friends of Harbors, Beaches and Parks
Friends of Lakes Folsom and Natoma
Friends of Mt Tam
Friends of Palomar Mountain State Park
Friends of the Urban Forest
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Friends4Picacho
Habitat for Humanity, California
Hendy Woods Community
Hollywood Beautification Team
Huntington Beach Tree Society
International Society of Arboriculture, Western Chapter
Just One Tree
Keep Eureka Beautiful
Koreatown Youth and Community Center
Lake County Land Trust
Land Conservancy of San Luis Obispo County
Land Trust of Santa Cruz County
Lassen Land and Trails
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League of California Cities
League to Save Lake Tahoe, Keep Tahoe Blue
Los Angeles Conservation Corps
Los Angeles Neighborhood Land Trust
Malibu Adamson House Foundation
Marin Agricultural Land Trust
McKinleyville Land Trust
Mendocino Land Trust
Mojave River Natural History Association
Mountain Parks Foundation
Mountains Recreation and Conservation Authority
Mountains Restoration Trust
Mounted Assistance Unit, California State Parks
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Muir Heritage Land Trust
Napa County Regional Park and Open Space District
National Trust for Historic Preservation
Natural Resources Defense Council
North East Trees
North Lake Tahoe Resort Association
Northcoast Regional Land Trust
Ojai Valley Land Conservancy
Our City Forest
Pacific Forest Trust
Palos Verdes Pennisula Land Conservancy
Peninsula Open Space Trust
Pismo Beach CVB
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Placer Land Trust
Planning and Conservation League
Poppy Reserve Mojave Desert Interpretive Association
Redwood Parks Association
Richmond Trees
Riverside Land Conservancy
Roseville Urban Forest Foundation
Rural County Representatives of California
Sacramento Tree Foundation
San Joaquin River Parkway and Conservation Trust
Santa Clara Valley Audubon Society
Save Mount Diablo
Save Our Forests
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Save Our Heritage Organization
Save the Bay
Save the Redwoods League
Sea and Desert Interpretive Association
Sequoia Riverlands Trust
Sierra Cascade Land Trust Council
Sierra Club California
Sierra Foothill Conservancy
So. California Mountains Foundation
Solano Advocates Green Environments
Solano Land trust
Sonoma County Water Agency
Sonoma Land Trust
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Sports Leisure Vacations, LLC
State Park Partners Coalition
Tahoe Resource Conservation District
The Wilderness Institute
Torrey Pines Docent Society
Tree Davis
Tree Foundation of Kern
Tree Fresno
Tree Lodi
Tree Musketeers
Tree Partners Foundation
Tree San Diego
TreePeople
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Trout Unlimited
Truckee Donner Land Trust
Trust for Public Land
Urban Conservation Corps of the Inland Empire
Urban Corps of San Diego County
Urban ReLeaf
Urban Tree Foundation
Victoria Avenue Forever
Waddell Creek Association
West Hollywood Tree Preservation Society
Western Chapter, International Society of Aboriculture
Wildlife Heritage Foundation
Woodland Tree Foundation
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Your Children's Trees
Opposition
None on file.
Analysis Prepared by:Ben Ebbink / L. & E. / (916) 319-2091