BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1926|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: AB 1926
Author: Cooper (D)
Amended: 8/17/16 in Senate
Vote: 21
SENATE LABOR & IND. REL. COMMITTEE: 3-1, 6/8/16
AYES: Mendoza, Leno, Mitchell
NOES: Stone
NO VOTE RECORDED: Jackson
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 60-15, 5/19/16 - See last page for vote
SUBJECT: Public works: prevailing wage: apprentices
SOURCE: State Building and Construction Trades Council of
California
DIGEST: This bill requires contractors, unless otherwise
provided by a collective bargaining agreement, when requesting
the dispatch of an apprentice to perform work on a public works
project and requiring the apprentice to fill out an application,
or undergo testing, training, an examination, or other
pre-employment process as a condition of employment, to pay the
apprentice for time spent on the required activity at the
prevailing wage rate for apprentices.
Senate Floor Amendments of 8/17/16 specify that a contractor is
not required to compensate an apprentice for the time spent on
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Page 2
preemployment activities if the apprentice is required to take a
preemployment drug or alcohol test and he or she fails to pass
that test.
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 and imposes
misdemeanor penalties for violation of this requirement.
(Labor Code §1771)
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:
1)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
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Page 3
time to and from the required activity, if any, at the
prevailing wage rate for apprentices in the trade to which he
or she is registered.
2)Specifies that, unless otherwise provided by a collective
bargaining agreement, a contractor is not required to
compensate an apprentice for the time spent on preemployment
activities if the apprentice is required to take a
preemployment drug or alcohol test and he or she fails to pass
that test.
Background
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 hour of apprentice
work for every five 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 the
Division of Apprenticeship Standards, 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 estimated apprentice hours to be
worked for an employer in a particular craft or trade on a
project, whichever is greater.
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:
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Page 4
"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 [Industrial Welfare Commission] 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'."
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." However, an employer
may establish different pay rates for travel time.
Training Time under Existing Law - According to the DLSE
Manual, 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
specified criteria are met. All training programs, lectures,
meetings, etcetera which do not meet the specified criteria
are hours worked. NOTE: Please see policy committee analysis
for more information.
Need for this bill - Becoming an apprentice requires hard work
and training that is from one to six years, depending on the
trade. 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 sponsor, 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
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Page 5
are required to partake in other pre-employment activities
without any compensation for their time. This bill requires
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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
SUPPORT: (Verified8/18/16)
State Building and Construction Trades Council of California
(source)
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: (Verified8/18/16)
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
ARGUMENTS IN SUPPORT: The author and sponsor 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 100 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
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Page 6
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.
ARGUMENTS IN OPPOSITION: Opponents argue that mandating
payment of wages before a hiring decision is made seems contrary
to 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 will require the
contractor to pay for the 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 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
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Page 7
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.
ASSEMBLY FLOOR: 60-15, 5/19/16
AYES: Achadjian, Alejo, Arambula, Atkins, Bloom, Bonilla,
Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu,
Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier,
Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson,
Gomez, Gonzalez, Gordon, Gray, Roger Hernández, Holden, Irwin,
Jones-Sawyer, Lackey, Levine, Linder, Lopez, Low, Maienschein,
Mayes, Medina, Mullin, Nazarian, O'Donnell, Olsen, Quirk,
Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark
Stone, Thurmond, Ting, Waldron, Weber, Wilk, Wood, Rendon
NOES: Travis Allen, Baker, Bigelow, Brough, Chávez, Dahle, Beth
Gaines, Grove, Harper, Jones, Kim, Melendez, Obernolte,
Patterson, Wagner
NO VOTE RECORDED: Chang, Hadley, Mathis, McCarty, Williams
Prepared by:Alma Perez-Schwab / L. & I.R. / (916) 651-1556
8/18/16 17:26:51
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