AB 1294, as introduced, Grove. Public works: civil wage and penalty assessments.
Existing law defines the term “public works” for purposes of requirements regarding the payment of prevailing wages, the regulation of working hours, and the securing of workers’ compensation for public works projects.
Existing law requires the Labor Commissioner to issue a civil wage and penalty assessment to a contractor or subcontractor, or both, if, after an investigation, the commissioner determines there has been a willful violation of the laws regulating public works. An affected contractor or subcontractor may obtain a review of the civil wage and penalty assessment by requesting a hearing from the office of the Labor Commissioner, after which the director shall issue a written decision. Under existing law, the contractor or subcontractor has the burden of proving that the basis for the civil wage and penalty assessment is correct.
This bill would instead require the Labor Commissioner to prove that the basis for the civil wage and penalty assessment is correct.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 1742 of the Labor Code is amended to
2read:
(a) An affected contractor or subcontractor may obtain
4review of a civil wage and penalty assessment under this chapter
5by transmitting a written request to the office of the Labor
6Commissioner that appears on the assessment within 60 days after
7service of the assessment. Ifbegin delete noend deletebegin insert aend insert hearing isbegin insert notend insert requested within
860 days after service of the assessment, the assessment shall
9become final.
10(b) begin insert(1)end insertbegin insert end insertUpon receipt of a timely request, a hearing shall be
11commenced within 90 days before the director, who shall appoint
12an impartial hearing officer possessing the qualifications of an
13administrative law judge pursuant to subdivision (b) of Section
1411502 of the Government Code. The appointed hearing officer
15shall be an employee of the department, but shall not be an
16employee of the Division of Labor Standards Enforcement. The
17contractor or subcontractor shall be provided an opportunity to
18review evidence to be utilized by the Labor Commissioner at the
19hearing within 20 days of the receipt of the written request for a
20hearing. Any evidence obtained by the Labor Commissioner
21subsequent to the 20-day cutoff shall be promptly disclosed to the
22contractor or subcontractor.
23The contractor or subcontractor
end delete
24begin insert(2)end insertbegin insert end insertbegin insertThe Labor Commissioner end insertshall have the burden of proving
25that the basis for the civil wage and penalty assessment isbegin delete incorrectend delete
26begin insert correctend insert. The assessment shall be sufficiently detailed to provide
27fair notice to the contractor or subcontractor of the issues at the
28hearing.
29Within
end delete
30begin insert(3)end insertbegin insert end insertbegin insertWithin end insert45 days of the conclusion of the
hearing, the director
31shall issue a written decision affirming, modifying, or dismissing
32the assessment. The decision of the director shall consist of a notice
33of findings, findings, and an order. This decision shall be served
34on all parties and the awarding body pursuant to Section 1013 of
35the Code of Civil Procedure by first-class mail at the last known
36address of the party on file with the Labor Commissioner. Within
3715 days of the issuance of the decision, the director may reconsider
P3 1or modify the decision to correct an error, except that a clerical
2error may be corrected at any time.
3The
end delete
4begin insert(4)end insertbegin insert end insertbegin insertThe end insertdirector shall adopt regulations setting forth procedures
5for hearings under
this subdivision.
6(c) An affected contractor or subcontractor may obtain review
7of the decision of the director by filing a petition for a writ of
8mandate to the appropriate superior court pursuant to Section
91094.5 of the Code of Civil Procedure within 45 days after service
10of the decision. Ifbegin delete noend deletebegin insert aend insert
petition for writ of mandate isbegin insert notend insert filed
11within 45 days after service of the decision, the order shall become
12final. If it is claimed in a petition for writ of mandate that the
13findings are not supported by the evidence, abuse of discretion is
14established if the court determines that the findings are not
15supported by substantial evidence in the light of the whole record.
16(d) A certified copy of a final order may be filed by the Labor
17Commissioner in the office of the clerk of the superior court in
18any countybegin delete in whichend deletebegin insert whereend insert the affected contractor or subcontractor
19has property or has or had a place of business. The clerk,
20immediately
upon the filing, shall enter judgment for the state
21against the person assessed in the amount shown on the certified
22order.
23(e) A judgment entered pursuant to this section shall bear the
24same rate of interest and shall have the same effect as other
25judgments and shall be given the same preference allowed by law
26on other judgments rendered for claims for taxes. The clerk shall
27not charge for the service performed by him or her pursuant to this
28section.
29(f) An awarding body that has withheld funds in response to a
30civil wage and penalty assessment under this chapter shall, upon
31receipt of a certified copy of a final order that is no longer subject
32to judicial review, promptly transmit the withheld funds, up to the
33amount of the certified order, to the Labor Commissioner.
34(g) This section shall provide the exclusive
method for review
35of a civil wage and penalty assessment by the Labor Commissioner
36under this chapter or the decision of an awarding body to withhold
37contract payments pursuant to Section 1771.5.
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