BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: AB 1926 Hearing Date: June 8,
2016
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|Author: |Cooper |
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|Version: |March 30, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Alma Perez-Schwab |
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Subject: Public works: prevailing wage: apprentices
KEY ISSUES
Should the Legislature require contractors that request
apprentices to work on a public works project to pay the
apprentices for time spent traveling to the worksite, filling
out an application, undergoing testing, training or examinations
or other pre-employment processes?
Should these requirements apply to all contractors unless
otherwise provided for in a collective bargaining agreement?
ANALYSIS
Existing law:
1) Requires that not less than the general prevailing rate
of per diem wages (as determined by the director of the
Department of Industrial Relations) be paid to all workers
employed on a "public works" project costing over $1,000
dollars and imposes misdemeanor penalties for violation of
this requirement. (Labor Code §1771)
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2) Defines "public work" to include, among other things,
construction work done under contract and paid for in whole
or in part out of public funds. (Labor Code §1720)
3) Requires a contractor on a public works project to
employ registered apprentices, with some exceptions, at the
rate of one hour of apprentice work for every five hours of
labor performed by a journeyman for each separate craft.
(Labor Code §1777.5)
4) Requires that apprentices employed on public works
project be paid the prevailing rate of per diem wages for
apprentices in the trade to which he or she is registered
and shall be employed only at the work of the craft or
trade to which he or she is registered.
This Bill specifies that, unless otherwise provided by a
collective bargaining agreement, when a contractor requests the
dispatch of an apprentice to perform work on a public works
project and requires the apprentice to fill out an application,
or undergo testing, training, an examination, or other
pre-employment process as a condition of employment, the
apprentice shall be paid for time spent on the required
activity, including travel time, at the prevailing wage rate for
apprentices in the trade to which he or she is registered.
COMMENTS
1. Background on Apprenticeship Programs:
The Division of Apprenticeship Standards (DAS), within the
Department of Industrial Relations, administers the state's
apprenticeship laws and enforces apprenticeship standards for
wages, hours, working conditions and the specific skills
required for state certification as a journey person in an
apprenticeable occupation. In general, apprenticeship programs
provide instruction that combines a formal course of in-class
instruction with practical "on-the-job" training. Driven and
funded by industry, these programs are collaborations of
industry, educational institutions, government, and the
apprentice.
The apprenticeship model of skill development,
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earn-while-you-learn, has been proven to work leading to well
trained workers who are employed in lifetime careers. For
employers, participation in apprenticeship programs help
eliminate the need for expensive recruitment, creates a
diversified and flexible workforce and a larger pool of
employees with specific skills, reduces costs of high labor
turnover and increases productivity.
According to the DAS 2014 annual report, California continues
to lead the nation with 53,366 apprentices registered in over
540 programs recognized by DAS.
Becoming an apprentice requires hard work and training that is
from 1 to 6 years, depending on the trade. The training is
supervised by the Joint Apprenticeship Committee (JAC) -
sometimes called Joint Apprenticeship and Training Committee
(JATC), or a Unilateral Apprenticeship Committee (UAC).
Training is "spelled out" in apprenticeship standards
developed by the local apprenticeship committees, with the
assistance of consultants from the Division of Apprenticeship
Standards, and registered with the State. Each apprentice
signs an apprentice agreement either with a JAC, UAC or an
individual employer. Upon successful completion of training,
they are issued a "Certificate of Completion" by the State.
2. Employing Registered Apprentices:
Existing law defines "apprentice" as a person at least 16
years of age who has entered into a written apprentice
agreement with an employer or program sponsor. (Labor Code
§3077) A contractor on a public works project must employ one
(1) hour of apprentice work for every five (5) hours performed
by a journeyman. Contractors who do not meet the required
ratio must request dispatch of an apprentice from an
apprenticeship program (for each apprenticeable craft or
trade) by giving the program written notice (mail, fax, or
email) of at least 72 hours before the date on which
apprentices are required.
Apprentices employed on public works must be paid the
applicable apprentice prevailing per diem wage rate, available
from DAS, and derived from the Director's survey of wages paid
on public works in the geographic area of the craft or trade.
Except for projects with less than 40 hours of journeyman
work, each request for apprentice dispatch shall be for not
less than an 8 hour day per each apprentice, or 20% of the
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estimated apprentice hours to be worked for an employer in a
particular craft or trade on a project, whichever is greater.
3. Background on Pay Requirements for Hired Employees:
Existing law requires employers to pay employees (already
hired) for any time they are suffered or permitted to work, if
the employee is there because they are required to be there,
then they must be paid. Below is a summary of requirements in
existing law for some of the most common questions on this
issue.
"Hours Worked" Under Existing Law
According to the Division of Labor Standards Enforcement's
(DLSE's) Enforcement Policies and Interpretation Manual,
"Under the basic definition set out in all of the IWC Orders,
'Hours Worked' means the time during which an employee is
subject to the control of any employer, and includes all of
the time the employee is suffered or permitted to work,
whether or not required to do so?Where it is determined that
the employee's time is subject to the control of the
employer?the time constitutes 'hours worked'." (DLSE Manual
Section 46.1). See also, Morillion v. Royal Packing Co., 22
Cal. 4th 575 (2000).
Travel Time under Existing Law
With respect to travel time, the DLSE Manual states, "If an
employee is required to report to the employer's business
premises before proceeding to an off-premises work site, all
of the time from the moment of reporting until the employee is
released to proceed directly to his or her home is time
subject to the control of the employer, and constitutes hours
worked." (DLSE Manual Section 46.2) However, an employer may
establish different pay rates for travel time. As the DLSE
Manual provides, "The employer may establish a different pay
scale for travel time (not less than minimum wage) as opposed
to the regular work time rate. The employee must be informed
of the different pay rate for travel before the travel
beings." (DLSE Manual Section 46.3.2)
Training Time under Existing Law
According to the DLSE Manual, "The Division utilizes the
standards announced by the U.S. Department of Labor contained
at 29 CFR §§ 785.27 through 785.31 in regard to lectures,
meetings and training programs:
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Time spent by employees attending training programs, lectures
and meetings are not counted as hours worked if the attendance
is voluntary on the part of the employee and all the following
criteria are met:
1. Attendance is outside regular working hours;
2. Attendance is voluntary: attendance is not voluntary
if the employee is led to believe that present working
conditions or the continuation of employment would be
adversely affected by nonattendance;
3. The course, lecture, or meeting is not directly
related to the employee's job: training is directly
related to an employee's job if it is designed to make
the employee handle his job more effectively as
distinguished from training him for another job or to a
new or additional skill; and
4. The employee does not perform any productive work
during such attendance.
(DLSE Manual Section 46.6.5)
All training programs, lectures, meetings, etcetera which do
not meet the above criteria are hours worked. If any one of
the above listed criterion is not met, the time is to be
considered 'hours worked'." (DLSE Manual Section 46.6.7)
4. Need for this bill?
In order to be admitted into an apprenticeship program, an
applicant must take several steps that can include taking an
aptitude test among other requirements. By the time that a
contractor requests a dispatch of apprentices, the apprentice
would have been vetted, training in a state approved program
and ready to work and learn. The contractor simply calls the
approved apprenticeship program or committee, relays his or
her request for apprentices, and the program dispatches the
apprentices to the contractor.
According to the author and sponsors, in some instances,
apprentices will travel to the project location ready and able
to work, only to find out they are not put to work and instead
are required to partake in other pre-employment activities
without any compensation for their time. This bill would
require that apprentices dispatched to non-union contractors
be paid the prevailing wage rate in the event a contractor
does not use the apprentice for construction work, but
requires the apprentice to undergo testing, added safety
training, or other pre-employment requirements instead.
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5. Proponent Arguments :
The author and sponsors argue that when requested by a
contractor, an apprentice is completely responsible to arrive
on time and ready for work. Often, just to arrive at work,
apprentices are required to travel to where the project is
which can sometimes be over one hundred miles from their home.
However, proponents argue, when an apprentice is dispatched,
but not put to work they lose out on an entire day's wages and
miss the opportunity to learn new skills to advance in their
training. According to the author and sponsors, this bill
provides apprentices dispatched to contractors with their
properly owed prevailing wage rate in the event a contractor
does not use the apprentice for construction work, but
requires the apprentice to undergo testing, added safety
training, or other pre-employment requirements. According to
proponents, the apprentice would receive payment only for the
time spent on the required activity.
6. Opponent Arguments :
Opponents argue that mandating payment of wages before a
hiring decision is made seems contrary to most usual
interpretations of an employment relationship. A contractor
requests apprentices to satisfy the requirements of prevailing
wage law but for a number of possible reasons, the contractor
may ultimately choose not to use the apprentice or may not
even be lawfully able to employ the apprentice. For example,
they note that under the Education Code contractors working on
school property are required, with some exceptions, to pass a
criminal background check. An apprentice that cannot satisfy
this requirement may not be employed - yet would be required
to be paid pursuant to this bill. Likewise, many public works
projects have "drug free" requirements and an apprentice that
does not pass or will not submit to a drug/alcohol screen
would still be entitled to be paid under this bill.
Additionally, they argue that there could be situations where
a contractor chooses not to hire an apprentice for justifiable
reasons, being late for example, and this bill would require
the contractor to pay for the travel time and time spent
undergoing pre-employment processing even if they were not
hired. They also question how the travel time will be
confirmed; wondering what a reasonable amount of travel time
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is and what the consequences would be should an apprentice get
into an accident on the way, would they be able to file for
workers' compensation? Furthermore, they argue that in the
circumstance when a contractor decides not to employ the
apprentice, it is unclear as to when their wages would be due,
and if not paid immediately, the contractor could be subject
to penalties for failure to pay.
Opponents also argue that this bill creates a double standard
for union and non-union contractors. Non-signatory contractors
would be obligated to pay a dispatched apprentice before it
has been determined the apprentice is suitable or eligible to
be hired while signatory contractors are not similarly
required to pay apprentices if "otherwise provided by a
collective bargaining agreement." They argue that if a
collective bargaining agreement mentions pre-hire obligations
- even if it does not specifically require the payments
mandated by this bill - they would seem to satisfy the
requirement of exemption. This, they argue, is an
extraordinarily unreasonable and unequal mandate that only
non-union contractors would be subject to which could result
in many potential claims and lawsuits.
SUPPORT
State Building and Construction Trades Council of California
(Sponsor)
California Labor Federation
California State Association of Electrical Workers
California State Pipe Trades Council
International Union of Elevator Constructors
International Union of Operating Engineers
Western States Council of Sheet Metal Workers
OPPOSITION
Air Conditioning Trade Association
American Fire Sprinkler Association
Associated Builders and Contractors - San Diego Chapter
Associated Builders and Contractors of California
Plumbing-Heating-Cooling Contractors Association of California
Western Electrical Contractors Association
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