BILL ANALYSIS �
AB 587
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Date of Hearing: April 13, 2011
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 587 (Gordon) - As Introduced: February 16, 2011
SUBJECT : Public works: volunteers.
SUMMARY : Extends a public works exemption for specified
"volunteers" and other related individuals. Specifically, this
bill :
1)Extends the sunset date on the exemption to January 1, 2017.
2)Eliminates a provision of the law that required the Department
of Industrial Relations (DIR) to submit a specified report to
the Legislature before January 1, 2011, regarding volunteers
on public works projects.
3)Makes related legislative findings and declarations.
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.
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.
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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.
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, 2012 sunset date to these provisions.
12)Requires DIR to submit a specified report to the Legislature
before January 1, 2011, regarding volunteers on public works
projects.
FISCAL EFFECT : Unknown
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 DIR in July 2003 in
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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
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").
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
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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
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 20010-01, 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)
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issued a memorandum that stated, "Due to the serious
implications to our programs that would arise from being unable
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.
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 (which was
recently released), 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.
ARGUMENTS IN SUPPORT :
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Supporters state that the ability to volunteer is a cornerstone
to many projects, including land and water conservation projects
in California. It provides any citizen the opportunity to
donate his or her time for projects that benefit their local
community. Projects such as tree planting, trail restoration,
coastal clean-up and habitat restoration give a sense of civic
pride and ownership to the individual volunteer while enhancing
and improving the quality of life for all.
Supporters note that California's volunteer base serves as an
essential element for the successful completion of a wide
variety of community projects that improve and enhance our
quality of life. Californians are eager for volunteer
opportunities for themselves and their children; it is a
deeply-held American value and they choose to volunteer in order
to enrich their communities and lives. They contend that
limiting the ability of people to volunteer would put the health
of the communities and California's natural landscapes at risk.
Supporters argue that, at a time when the state is addressing
very serious fiscal deficits, extending this sunset provision
will allow California to continue to tap into one of our
greatest and most economical resources - the generosity of the
human spirit.
REGISTERED SUPPORT / OPPOSITION :
Support
Amargosa Conservancy
American Land conservancy
American River Conservancy
Amigos de los Rios
Audubon- California
Bay Area Open Space Council
Bay Area Ridge Trail Council
Big Sur Land Trust
Bolsa Chica Land Trust
California Association of Local Conservation Corps
California Association of School Business Officials
California Council of Land Trusts
California Outdoor Heritage Alliance
California Park and Recreation Society
California ReLeaf
California State Parks Foundation
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California Urban Forests Council
California Water Agencies
California Watershed Coalition
Canal Alliance
Canopy
Catalina Island Conservancy
Center for Natural Lands Management
City of Citrus Heights
City of Fresno
City of San Diego
City of Signal Hall
City of Tulare City Council
City of Visalia
Conservation Corps of Long Beach
Eastern Sierra Land Trust
Fallbrook Land Conservancy
Friends of Five Creeks
Friends of the UC Davis Arboretum
Golden Gate National Parks Conservancy
Goleta Valley Beautiful
Green LA Coalition
Hammond Law Office
Hollywood/Los Angeles Beautification Team
Huntington Beach Tree Society
Infineon Raceway
Keep Eureka Beautiful
LA Conservation Corps
Laguna de Santa Rosa Foundation
Lake County Land Trust
Land Conservancy of San Luis Obispo County
Land Trust for Santa Barbara County
Land Trust of Napa County
Land Trust of Santa Cruz County
Lassen Land and Trails Trust
League of California Cities
Los Angeles Neighborhood Land Trust
Marin Agricultural Land Trust
Marin County Board of Supervisors
Marin Employment Connection
Marin Municipal Water District
Mendocino Land Trust
Northcoast Regional Land Trust
Numerous Individuals
Ojai Valley Land Conservancy
Our City Forest
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Pacific Forest Trust
Palos Verdes Peninsula Land Conservancy
Parker Street Foundation
Placer Land Trust
Redwood Coast Land Conservancy
Regional Council of Rural Counties
Resource Conservation Districts
Roseville Urban Forest Foundation
Sacramento Tree Foundation
Sacramento Valley Conservancy
San Joaquin River Parkway and Conservation Trust
San Jose Conservation Corps/Charter School
Santa Barbara County ReLeaf
Save Mount Diablo
Sequoia Riverlands Trust
Sierra-Cascade Land Trust Council
Solano Land Trust
Sonoma Land Trust
Sonoma Land Trust
Southern California Open Space Council
Sue Oda Landscape Architect
Supervisor Ron Roberts, San Diego County
The Nature Conservancy
Transition Habitat Conservancy
Tree Fresno
Tree Musketeers
TreePeople
Trust for Public Land
Tulare Basin Wildlife Partners
Union of Concerned Scientists
Urban Corps San Diego County
Wildlife Heritage Foundation
Woodland Tree Foundation
Support if Amended
Northern California Carpenters Regional Council
Opposition
None on file.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091
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