CC - Item 9J - Establishment of a Labor Compliance Program for State Funded Public Works Projects Requiring Such Program as a Condition of FundingROSEMEAD CITY COUNCIL
STAFF REPORT
i
TO: THE HONORABLE MAYOR AND CITY COUNCIL
FROM: JEFF ALLRED, CITY MANAGER ZO
DATE: SEPTEMBER 28, 2010
SUBJECT: ESTABLISHMENT OF A LABOR COMPLIANCE PROGRAM FOR
STATE FUNDED PUBLIC WORKS PROJECTS REQUIRING SUCH
PROGRAM AS A CONDITION OF FUNDING
SUMMARY
The City has applied for a state grant to fund the renovation of the pool at Garvey Park
which requires the establishment of a Labor Compliance Program ("LCP") to enforce
prevailing wage requirements. A LCP may either be an awarding body's "in house"
program that enforces prevailing wage requirements on the awarding body's own public
works projects, or it may be a "third party" program with which awarding bodies contract
to enforce prevailing wage requirements. The most prominent types of projects for
which a LCP is required are school construction projects and water related projects
funded by bond measures. LCPs are also required for several kinds of public works
contracts including the Statewide Park Development Community Revitalization Program
of 2008.
Staff Recommendation
It is recommended that the City Council take the following actions:
1. Adopt Resolution No. 2010-69 adopting a Labor Compliance Program for public
work projects funded with state funds that require such a program as a condition
of funding;
2. Authorize the submittal of the City's Application for Approval of Labor
Compliance Program;
3. Authorize the City Manager to act as the Awarding Body's Representative.
ANALYSIS
In establishing the LCP, the City of Rosemead adheres to the statutory requirements as
defined in Labor Code section 1771.5(b). Further„ it is the intent of the city to actively
enforce this LCP on all city public works construction sites where the project funding
requires such compliance. In doing so, the city will monitor the payment of prevailing
wage rates and, require those contractors working on the project to submit Certified
Payroll Records demonstrating their compliance with the payment of prevailing wage
rates.
ITEM NO. Od
APPROVED FOR CITY COUNCIL AGENDA:
City Council Report
September 28, 2010
Page 2 of 3
The City of Rosemead institutes this LCP for the purpose of implementing its policy
relative to the labor compliance provisions V state funded public works contracts.
Should applicable sections of the Labor Code or title 8 of the California Code of
Regulations undergo alteration, amendment, or deletion, the City will modify the
affected portions of this program accordingly.
i
Where projects are combined with multiple funding sources, all persons performing the
work shall be paid not less that the General Prevailing Wage as predetermined by the
Director of Industrial Relations pursuant to the California Labor Code. If there is a
difference between the minimum wage rates determined by the Secretary of Labor
(Federal) and the applicable prevailing wage rates per the Director of Industrial
Relations for similar classifications ofi work, the contractor and its subcontractors shall
pay not less than the higher wage rate. The rate of compensation for any classification
not listed in the schedule but which ,may be required to execute a Contract shall be
commensurate and in accordance with the rates specified for similar or comparable
classifications or for those performing similar or comparable duties.
California Labor Code Section 1771.5(b) states that an LCP shall include, but not be
limited to, the following requirements:
1. All bid invitations and public works contracts shall contain appropriate language
concerning the requirements of this chapter.
2. A pre-job conference shall be conducted with the contractor and subcontractors
to discuss federal and state labor law requirements applicable to the contract.
3. Project contractors and subcontractors shall maintain and furnish, at a
designated time, a certified copy of each weekly payroll containing a statement of
compliance signed under penalty of perjury.
4. The awarding body shall review, and if appropriate, audit payroll records to verify
compliance with the chapter.
5. The awarding body shall withlold contract payments when payroll records are
delinquent or inadequate.
6. The awarding body shall with contract payments equal to the amount of
underpayment and applicable penalties when, after investigation, it is established
that underpayment has occurred.
PUBLIC NOTICE PROCESS
This item has been noticed according to the California Health and Safety Code Section
33490.
Prepared by:
Michelle G. Ramirez
Community Development Manager
ATTACHMENT A
RESOLUTION NO. 2010-69
A RESOLUTION OF THE CITY OF ROSEMEAD ADOPTING A LABOR
COMPLIANCE PROGRAM PURSUANT TO CALIFORNIA LABOR
CODE SECTION 1771.5 FOR STATE FUNDED PUBLIC WORKS
PROJECTS REQUIRING SUCH PROGRAM AS A CONDITION OF
FUNDING.
WHEREAS, the City of Rosemead (the "City") is a public body corporate and politic
organized and existing under the laws of the State of California, and the Rosemead City
Council (the "Council") is responsible for the administration and implementation of City
activities within Rosemead; and
WHEREAS, a Labor Compliance Plan is a program to ensure contractor's compliance
with prevailing wage and other Labor Code requirements for public works projects; and
WHEREAS, the City has determined that it is necessary to implement and enforce a
Labor Compliance Program (the "LCP") pursuant to Labor Code section 1771.5 for all
State Funded Public Work Projects requiring a LCP as a condition of funding; and
WHEREAS, all of the findings and conclusions made by the Council pursuant to this
Resolution are based upon all of the oral and written evidence presented to it and taken
as a whole, and not based solely on the information provided in this Resolution; and
WHEREAS, prior to taking action, the Council has reviewed and considered all of the
information and data in and relating to the LCP.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rosemead
as follows:
SECTION 1. The City Council finds that the LCP attached hereto and incorporated
herein as "Exhibit "A" is consistent with the requirements of Labor Code section 1771.5.
SECTION 2. The City Council finds that the City's implementation and enforcement of
the LCP for any State and/or Federally Public Works Project requiring a LCP as a
condition of funding will satisfy all the requirements of Labor Code section 1771.5.
SECTION 3. The City Council authorizes the City Manager to submit the LCP to the
Department of Industrial Relations for certification.
SECTION 4. The City Council hereby authorizes and directs the City Manager, or the
City Manager's designee, to implement and enforce the LCP, upon certification by the
Department of Industrial Relations, on behalf of the City of Rosemead.
SECTION 5. The City Clerk shall certify to the passage and adoption of this Resolution,
whereupon it shall take immediate effect and be in force.
PASSED, ADOPTED AND APPROVED this 28th day of September 2010.
Gary Taylor, Mayor
Attest:
Gloria Molleda, City Clerk
Approved as to Form:
By:
Rachel H. Richman
Burke, Williams & Sorensen, LLP
Legal Counsel
ATTACHMENT B
City of Rosemead
Labor Compliance Program
M
Prepared by:
City of Rosemead
8838 E. Valley Boulevard
Rosemead, California 91770
ADOPTED:
Reserved
CITY OF ROSEMEAD
LABOR COMPLIANCE PROGRAM
IMPLEMENTATION, OPERATION, PROCEDURES
Contents
1. General Labor Compliance Program
II. Implementation Plan
III. Operational Manual
IV. Procedures
V. Forms
81
85
91
95
iii
Reserved
iv
CITY OF ROSEMEAD
LABOR COMPLIANCE PROGRAM
PREFACE
The City of Rosemead institutes this Labor Compliance Program ("LCP") for the
purpose of implementing its policy relative to the labor compliance provisions of State
funded public works contracts. This program is applicable to all public works projects
which require a LCP as a condition of funding.
California Labor Code Section 1770, et seq. requires that contractors on public works
projects pay their workers based on prevailing wage rates established and issued by the
Department of Industrial Relations, Division of Labor Statistics and Research.
California Labor Code 1771.5 requires an awarding body to identify prevailing wage
requirements in bid invitations, contract language and at pre-construction conferences,
to review payroll records to verify compliance with the Labor Code, and to withhold
contract payments when payroll records are delinquent or inadequate or when
underpayments have occurred.
California Labor Code Section 1776 requires contractors to keep accurate payroll
records of trades workers on all public works projects and to submit copies of certified
payroll records upon request.
California Labor Code Section 1777.5 requires contractors to employ registered
apprentices on public works projects.
This LCP contains labor compliance standards required by State laws, regulations, and
directives, as well as policies and contract provisions, which include, but are not limited
to, the following: -
• Contractors' payment of applicable general prevailing wage rates.
• Contractors' employment of properly registered apprentices.
• Contractors' provision of certified payroll records upon request, but not less
than weekly.
• Program's monitoring of City construction sites for verification of proper
payments
• of prevailing wage rates and work classification.
• Program's presentation at pre-construction conferences with contractors/
• subcontractors.
• Program's withholding of contract payments and imposing penalties for
• noncompliance.
• Program's preparation and submittal of annual reports.
Labor Compliance Officers ("LCOs") will represent the City of Rosemead in enforcement
of this LCP.
v
Reserved
vi
I. GENERAL LABOR COMPLIANCE PROGRAM
Reserved
CITY OF ROSEMEAD
LABOR COMPLIANCE PROGRAM
TABLE OF CONTENTS
Introduction 5
Public Works Subject to Prevailing Wage Laws 7
A. Types of Contracts to Which Prevailing Wage Requirements Apply 7
B. Limited Exemption 7
C. Applicable Dates for Enforcement of the LCP 7
II. Competitive Bidding on City Public Works Contracts 8
Ill. Pre-Construction Conference 9
IV: Review of Certified Payroll Records 11
A. Certified Payroll Records Required 11
B. Apprentices 13
C. Audit of Certified Payroll Records 14
V. Reporting of Willful Violations to the Labor Commissioner 15
A. Failure to Comply with Prevailing Wage Requirements 15
B. Falsification of Payroll Records, Misclassification of Work, Failure to Accurately
Report Hours of Work 15
C. Failure to Submit Certified Payroll Records 15
D. Failure to Pay Fringe Benefits 15
E. Failure to Pay Correct Apprentice Rates and/or Misclassification of Apprentices 15
F. Taking of Kickbacks 16
VI. Enforcement Action
A.
B.
C.
D.
E.
F.
G.
H.
I.
Duty of the Awarding Body
Withholding Contract Payments When Payroll Records are Delinquent or
Inadequate
Withholding for Violation for Not Paying the Per Diem Prevailing Wages
Forfeitures Requiring Approval by the Labor Commissioner
Determination of Amount of Forfeiture by the Labor Commissioner
Liquidated Damages
Request for Review
Deposits of Penalties
Debarment Policy
and Forfeitures Withheld
VII. Notice of Withholding and Review Thereof
A. Notice of Withholding of Contract Payments (NWCP)
B. Review of NWCP
17
17
22
23
25
26
27
28
29
29
31
31
31
Vlll. Distribution of Forfeited Sums 33
Table of Contents
(Continued)
IX. Outreach Activities 34
A. Providing Information to the Public 34
B. n-service Management Training on the Labor Compliance Program 34
X. Annual Reports 35
A. Prevailing Wage Annual Report 35
B. Annual Report on the LCP to the Director of the Department of Industrial
Relations 35
ATTACHMENTS
A. Checklist of Labor Law Requirements for Review at Pre-Construction Conference
B. Audit Record Form
C. Single Project Labor Compliance Review and Enforcement Report Form
D. Notice of Deadlines for Forfeitures
E. Notice of Withholding of Contract Payments c
F. Notice of Transmittal t
G. Notice of Opportunity to Review Evidence Pursuant to Labor Code Section 1742(b)
H. Prevailing Wage Hearing Regulations, 8 CCR Sections 17201-17270
i
INTRODUCTION
The City of Rosemead institutes this general Labor Compliance Program ("LCP") for the
purpose of implementing its policy relative to labor compliance provisions of State-funded
public works contracts where a LCP is required as a condition of funding. This LCP contains
labor compliance standards required by State laws, regulations and directives, as well as policies
and contract provisions.
The California Labor Code Section 1770, et seq., requires contractors on public works projects to
pay their workers based on prevailing wage rates established and issued by the Department of
Industrial Relations, Division of Labor Statistics and Research.
In establishing this LCP, the City adheres to statutory requirements as enunciated in Section
1771.5(b) of the Labor Code. Further, on applicable projects, the City intends to actively enforce
this LCP by monitoring City construction sites for payment of prevailing wage rates and to
require contractors and subcontractors with workers on applicable City projects to submit copies
of certified payroll records demonstrating their compliance with payment of prevailing wage
rates.
The City's LCP includes January 21, 2009, revisions to Title 8 of the California Code of
Regulations Sections 16000 - 16404 and 16421 - 16802. Should applicable sections of the Labor
Code or undergo alteration, amendment or deletion, the City of Rosemead will modify the
affected portions of this program accordingly.
5
Reserved
SECTION I
PUBLIC WORKS SUBJECT TO PREVAILING WAGE LAWS
State prevailing wage rates apply to public works contracts as set forth in Labor Code Sections
1720 et seq., and include, but are not limited to, such types of work as construction, alteration,
demolition, repair or maintenance work. The Division of Labor Statistics and Research (DLSR)
predetermines appropriate prevailing wage rates for particular construction trades and crafts by
county.
A. Types of Contracts to Which Prevailing Wage Requirements Apply
As provided in Labor Code Section 1771 et seq., a LCP as described in subdivision (b) of
section 1771.5 of the Labor Code shall be initiated and enforced on all applicable public
works projects. Upon approval by the Director of the Department of Industrial Relations, this
LCP shall apply to all statutes that require Awarding Bodies to have a LCP to which the
payment of prevailing wages apply as a condition of project authorization, project funding, or
use of specified contracting authority. The Department of Industrial Relations' website shall
maintain a list of statutes requiring LCP oversight.
B. Limited Exemption
As provided in Labor Code Section 1771.5(a), if a City of Rosemead public works project
would be otherwise subject to prevailing wage requirements except that the value is $25,000
or less when the project is for construction or installation work or of $15,000 or less when the
project is for alteration, demolition, repair, or maintenance work, then the City shall not
require payment of the general rate of per diem wages or the general rate of per diem wages
for holiday and overtime work for such projects. A project for construction, installation,
alteration, demolition, repair, or maintenance work shall be identified as such in the call for
bids, and in the contract or purchase order.
If, however, the amount of such a contract is changed and, as a result, exceeds the applicable
limit under which the payment of the general rate of per diem wages is not required, workers
employed on the contract after the amount due the contractor has reached the applicable limit
shall be paid the general rate of per diem wages for regular, holiday or overtime work, as the
case may be.
C. Applicable Dates for Enforcement of the LCP
The applicable dates for enforcement of awarding body Labor Compliance Programs are
established by Section 16425 of the California Code of Regulations. Contracts are not subject
to the jurisdiction of the City's LCP until after the program has received initial or final
approval.
7
p SECTION II
COMPETITIVE BIDDING ON CITY PUBLIC WORKS CONTRACTS
The City publicly advertises upcoming public works projects to be awarded according to a
competitive bidding process. All City bid advertisements or bid invitations and public works
contracts contain appropriate language concerning requirements of the Labor Code.
0
SECTION III
PRE-CONSTRUCTION CONFERENCE
After the City awards a public works contract and prior to commencement of the work, a
mandatory Pre-Construction Conference shall be conducted with the contractor and those
subcontractors listed in its bid documents. A Labor Compliance Officer shall present information
at this conference.
At that meeting, the Labor Compliance Officer will discuss Federal and State labor law
requirements applicable to the contract, including prevailing wage requirements, respective
record-keeping responsibilities, the requirement for submittal of certified payroll records to the
City and the prohibition against discrimination in employment.
The Labor Compliance Officer. will provide the contractor and each subcontractor with a
Checklist of Labor Law Requirements (Attachment A to this document) and will discuss in detail
the following checklist items:
1. Contractor's duty to pay prevailing wages [Labor Code Section 1770 et seq.].
2. Contractor's duty to employ registered apprentices on public works projects [Labor
Code Section 1777.5].
3. Penalties for failure to pay prevailing wages and to employ apprentices, including
forfeitures and debarment [Labor Code Sections 1775, 1777.7, and 1813].
4. Requirement to maintain and submit copies of certified payroll records to the City, on
a weekly basis, as required [Labor Code Section 1776] and penalties for failure to do
so [Labor Code Section 1776(g)]. The requirement includes and applies to all
subcontractors performing work on this project even if their portion of the work is
less than on half of one-percent (0.5%) of the total amount of the contract.
5. Prohibition against employment discrimination [Labor Code Sections 1735 and
1777.6; the Government Code and Title VII of the Civil Rights Act of 1964, as
amended].
6. Prohibition against taking or receiving a portion of an employee's wages [Labor Code
Section 1778] (kickback).
7. Prohibition against accepting fees for registering any person for public works [Labor
Code Section 1779] or for filing work orders on public works [Labor Code Section
1780].
8. Requirement to list all subcontractors that are performing one-half of one percent
(0.5%) of the total amount of the contract [Public Contract Code Section 4100 et
seq.].
9
9. Requirement to be properly licensed and to require all subcontractors to be properly
licensed and the penalty for employing workers while unlicensed [Labor Code
Section 10211 and under California Contractors License Law. Also, see Business and
Professions Code Section 7000, et seg.
10. Prohibition against unfair competition [Business and Professions Code Sections
17200-17208].
11. Requirement that contractor and subconi
Compensation [Labor Code Section 1861].
be properly insured for Workers'
12. Requirement that the contractor abide by O
regulations that apply to this particular public
13. Prohibition against hiring undocumented
eligibility/citizenship from all workers.
onal Safety and Health laws and
project.
and requirement to secure proof of
14. Requirement to provide itemized wage statements to employees under Labor Code
Section 226.
Contractors and subcontractors present at the Pre-Construction Conference will be given the
opportunity to ask questions of the Labor Compliance Officer relative to items contained in the
Checklist of Labor Law Requirements. The checklist will then be signed by the contractor's
representative and a representative of each subcontractor and the City's Labor Compliance
Officer.
At the Pre-Construction Conference, the Labor Compliance Officer will provide the contractor
with a copy of the City's LCP packet which includes: a copy of the approved LCP, the Checklist
of Labor Law Requirements, applicable Prevailing Wage Rate Determinations, blank certified
payroll record forms, fringe benefit statements, State apprenticeship requirements, and a copy of
the Labor Code relating to Public Works and Public Akencies [Part 7, Chapter 1, Sections 1720-
18611.
It will be the contractor's responsibility to provid
subcontractors and to any substituted subcontractors.
LCP package to all listed
10
SECTION IV
REVIEW OF CERTIFIED PAYROLL RECORDS
A. Certified Payroll Records Required
The contractor and each subcontractor shall maintain payrolls and basic records (timecards,
canceled checks, cash receipts, trust fund forms, accounting ledgers, tax forms,
superintendent and foreman daily logs, etc.) during the course of the work and shall preserve
them for a period of three (3) years thereafter for all trades workers working on City projects
subject to the LCP. Such records shall include the name, address, and social security number
of each worker, his or her classification, a general description of the work each employee
performed each day, rate of pay (including rates of contributions for or costs assumed to
provide fringe benefits), daily and weekly number of hours worked, actual wages paid and
the payroll check numbers.
Submittal of Certified Payroll Records
The contractor and each subcontractor shall maintain weekly certified payroll records
for submittal to the City of Rosemead Labor Compliance Officer as required. The
contractor shall be responsible for the submittal of payroll records of all its
subcontractors. All certified payroll records shall be accompanied by a statement of
compliance signed by the contractor or each subcontractor indicating payroll records
are correct and complete, wage rates contained therein are not less than those
determined by the Director of the Department of Industrial Relations and
classifications set forth for each employee conform with work performed. Time cards,
front and back copies of canceled checks, daily logs, employee sign-in sheets and/or
any other record maintained for the purposes of reporting payroll may be requested
by the Labor Compliance Officer at any time and shall be provided within ten (10)
days following receipt of request.
2. Use of Electronic Reporting Forms
Certified payroll records required by Labor Code 1776 may be maintained and
submitted electronically subject to all of the following conditions:
a. The reports must contain all information required by Labor Code Section
1776, organized in a manner that is similar to how the information is reported
on the Department of Industrial Relation's "Public Works Payroll, Reporting
Form" (Form A-1-131).
b. The reports shall be in a format and use software that is readily accessible and
available to contractors, awarding bodies, Labor Compliance Programs, and
the Department of Industrial Relations.
c. Reports submitted to this Labor Compliance Program must be either (1) in the
form of non-modifiable image or record that bears an electronic signature or
includes a copy of an original certification made on paper, or alternatively (2)
printed out and submitted on paper with an original signature.
11
d. The requirements for redacting certain information shall be followed when
certified payroll records are disclosed to ttie public pursuant to Labor Code
Section 1776(e), whether the records are provided electronically or as hard
copies.
e. No contractor or subcontractor shall be mandated to submit or receive
electronic reports when it otherwise lacks the resources or capacity to do so,
nor shall any contractor or subcontractor be required to purchase or use
proprietary software that is not generally available to the public.
3. Full Accountability
Each individual, laborer or craftsperson working on this public works contract must
appear on the payroll. The employer who pays the trades worker must report that
individual on its payroll. This includes individuals working as apprentices in an
apprenticeable trade. Owner-operators are to be+reported by the contractor employing
them, rental equipment operators are to be reported by the rental company paying the
workers' wages.
Sole owners and partners who work on this contract must also submit a certified
payroll record listing days and hours worked and the trade classification descriptive
of work actually done.
The contractor shall provide records required under this section to the City of
Rosemead within five (5) days of each payday, and shall make these records available
for inspection by the Department of Industrial Relations, and shall permit
representatives of each to interview trades workers during working hours on the
project site.
4. Responsibility for Subcontractors
The contractor shall be responsible for ensuring adherence to labor standards
provisions by its subcontractors. Moreover, the prime contractor is responsible for
Labor Code violations of its subcontractors in accordance with Labor Code Section
1775.
5. Payment to Employees
Employees must be paid unconditionally, and not less often than once each week, the
full amounts due and payable for the period covered by the particular payday. Thus,
an employer must establish a fixed workweek (Sunday through Saturday, for
example) and an established payday (such as every Friday or the preceding day
should such payday fall on a holiday). On each and every payday each worker must
be paid all sums due as of the end of the preceding workweek and must be provided
with an itemized wage statement.
If an individual is called a subcontractor, whereas, in fact, he/she is merely a journey
level mechanic supplying only his/her labor, such an individual would not be deemed
a bona fide subcontractor and must be reported on the payroll of the prime contractor
as a trades worker. Moreover, any person who does not hold a valid contractor's
12
license cannot be a subcontractor, and anyone hired by that person is the worker or
employee of the general contractor for purposes of prevailing wage requirements,
certified payroll reporting and workers' compensation laws.
The worker's rate for straight time hours must equal or exceed the rate specified in
the contract by reference to the "Prevailing Wage Determinations" for the class of
work actually performed. Any work performed on Saturday, Sunday, and/or on a
holiday, or portion thereof, must be paid the prevailing rate established for those days
regardless of the fixed workweek. The hourly rate for hours worked in excess of eight
(8) hours in a day and forty (40) hours in a workweek shall be premium pay. All work
performed on Saturday, Sunday and holidays shall be paid pursuant to the Prevailing
Wage Determination.
B. Apprentices
Apprentices shall be permitted to work as such only when they are registered, individually,
under a bona fide apprenticeship program registered and approved by the State Division of
Apprenticeship Standards. The allowable ratio of apprentices to journeypersons in any
craft/classification shall not be greater than the ratio permitted to the contractor as to its
entire workforce under the registered program.
Any worker listed on a payroll at an apprentice wage rate who is not registered shall be paid
the journey level wage rate determined by the Department of Industrial Relations for the
classification of the work he/she actually performed. Pre-apprentice trainees, trainees in
nonapprenticeable crafts, and others who are not duly registered will not be permitted on
public works projects unless they are paid full prevailing wage rates as journeypersons.
Compliance with California Labor Code Section 1777.5 requires all public works contractors
and subcontractors to:
1 Submit contract award information to the apprenticeship committee for each
apprenticeable craft or trade in the area of the project;
2. Request dispatch of apprentices from the applicable apprenticeship program(s) and
employ apprentices on public works projects in a ratio to journeypersons which in no
case shall be less than one (1) hour of apprentice work to each five (5) hours of
journeyperson work; and
3. Contribute to the applicable apprenticeship program(s) or the California
Apprenticeship Council in the amount identified in the prevailing wage rate
publication for journeypersons and apprentices. If payments are not made to an
apprenticeship program, they shall be made to the California Apprenticeship Council,
Post Office Box 420603, San Francisco, CA 94142.
If the contractor is registered to train apprentices, the contractor shall furnish written
evidence of the registration (i.e., Apprenticeship Agreement or Statement of Registration) of
its training program and apprentices, as well as the ratios allowed and the wage rates required
13
to be paid there under for the area of construction, prior to using any apprentices in the
contract work. It should be noted that a prior approval for a separate project does not confirm
approval to train on any project. The contractor/subcontractor must check with the applicable
Joint Apprenticeship Committee to verify status. t
C. Audit of Certified Payroll Records I
Audits shall be conducted by the Labor Compliance Officer and
the request of the Labor Commissioner to determine whether all
sites have been paid according to the prevailing wage rates.
The audit record form (presented as Attachment B) demonstrates
necessary to verify compliance with Labor Code requirements.
I
shall also be conducted at
trades workers on project
the sufficient detail that is
14
SECTION V
REPORTING OF WILLFUL VIOLATIONS TO THE LABOR
COMMISSIONER
If an investigation reveals that a willful violation of the Labor Code has occurred, the Labor
Compliance Officer will make a written report to the Labor Commissioner which shall include:
(1) an audit consisting of a comparison of payroll records to the best available information as to
the actual hours worked, and (2) the classification of workers employed on the public works
contract. Six (6) types of willful violations are reported:
A. Failure to Comply with Prevailing Wage Rate Requirements
Failure to comply with prevailing wage rate requirements (as set forth in the Labor
Code and City contracts) is determined a willful violation whenever less than the
stipulated basic hourly rate is paid to trades workers, or if overtime, holiday rates,
fringe benefits, and/or employer payments are paid at a rate less than stipulated.
B. Falsification of Payroll Records, Misclassification of Work and/or
Failure to Accurately Report Hours of Work
Falsification of payroll records and failure to accurately report hours of work is
characterized by deliberate underreporting hours of work; underreporting the
headcount; stating that the proper prevailing wage rate was paid when, in fact, it was
not; clearly misclassifying the work performed by the worker; and any other
deliberate and/or willful act which results in the falsification or inaccurate reporting
of payroll records.
C. Failure to Submit Certified Payroll Records
The contractors and subcontractors shall have ten (10) days upon notification by the
Labor Compliance Officer in which to comply with the requirement of submittal of
weekly records and/or to correct inaccuracies or omissions that have been detected.
D. Failure to Pay Fringe Benefits
Fringe benefits are defined as the amounts stipulated for employer payments or trust
fund contributions and are determined to be part of the required prevailing wage rate.
Failure to pay or provide fringe benefits and/or make trust fund contributions on a
timely basis is equivalent to payment of less than the stipulated wage rate and shall be
reported to the Labor Commissioner as a willful violation, upon completion of an
investigation and audit
E. Failure to Pay Correct Apprentice Rates and/or Misclassification of
Workers as Apprentices.
Failure to pay the correct apprentice rate or classifying a worker as an apprentice
when not properly registered is equivalent to payment of less than the stipulated wage
rate and shall be reported to the Labor Commissioner as a willful violation upon
completion of an investigation and audit.
15
F. Taking of Kickbacks
Accepting or extracting kickbacks from employee wages under Labor Code Section
1778 constitutes a felony and may be prosecuted by the appropriate enforcement
agency.
16
SECTION
ENFORCEMENT ACTION
A. Duty of the Awarding Body
The City of Rosemead as the awarding body having an approved LCP has a duty to
the Director of the Department of Industrial Relations to enforce the requirements of
Chapter 1 of Part 7 of Division 2 of the Labor Code in a manner consistent with the
practice of the Labor Commissioner. The City's LCP shall refer to the Director's
ongoing advisory service of web-posted public works coverage determinations as a
source of information and guidance in making decisions. The primary function of this
LCP is to ensure public works contractors comply with prevailing wage requirements
found in the Public Works Chapter of the Labor Code. The procedures specified
herein, including proactive investigation methods, comprise the minimum obligations
required of this LCP to operate as specified in sections 16248 and 16434. The City of
Rosemead Labor Compliance Program will:
1. Review payroll records famished by contractors and subcontractors in
accordance with Section 16421(a)(3), and in a format prescribed at Section
16401 of Title 8 of the California Code of Regulations, as promptly as
practicable after receipt, but in no.event more than 30 days after such receipt.
"Review" for this purpose shall be defined as inspection of the records
furnished to determine if:
a. all appropriate data elements identified in Labor Code Section 1776(a)
have been reported;
b. certification forms have been completed and signed in compliance
with Labor Code Section 1776(b); and
c. correct prevailing wage rates have been reported as paid for each
classification of labor listed, with confirmation of payment through
worker interviews, examination of paychecks or paycheck stubs, direct
confirmation of payments from third party recipients of "Employer
Payments" (as defined at section 16000 of Title 8 of the California
Code of Regulations), or any other reasonable method.
1) For each month a contractor or subcontractor reports workers
employed on the public work, confirmation of furnished
payroll records shall be undertaken randomly for at least one
worker for at least one weekly period within that month.
2) Confirmation shall be undertaken whenever complaints from
workers or other interested persons or other circumstances or
information reasonably suggest payroll records furnished by a
contractor or subcontractor are inaccurate.
2. Conduct in-person inspections at sites where public work is being performed.
Such On-Site Visits may be undertaken randomly or as deemed necessary, but
shall be undertaken during each week that workers are present. On-Site Visits
17
may include any activities deemed necessary to corroborate prevailing wage
payments reported on payroll records furnished by contractors and
subcontractors. All On-Site Visits shall include visual inspection of:
a. the copy of the DIR wage determination(s) required to be posted at
each job site in compliance with Labor Code Section 1773.2, and
b. Notice of Labor Compliance Program Approval required to be posted
at the job site in accordance with Section 16429, including a phone
number for inquiries, questions, or assistance with regard to the LCP.
3. Respond to receipt of a written complaint alleging failure of a contractor or
subcontractor to pay prevailing wages by,performing all of the following
actions: ,
a. Within 15 days after receipt of the complaint, send a written
acknowledgement to the complainant acknowledging receipt of the
complaint and identifying the name, address, and phone number of the
Labor Compliance Officer assigned to the complaint;
b. Within 15 days after receipt of the complaint, provide the affected
contractor with the notice required under Labor Code Section 1775(c)
if the complaint is against a subcontractor;
c. Notify the complainant in writing of the resolution of the complaint
within ten days after the complaint has been resolved;
d. Notify the complainant in writing at least once every 30 days of the
status of a complaint that has not yet been resolved; and
e. Notify the complainant in writing at least once every 90 days of the
status of a complaint that has been resolved by the City's LCP but
remains under review or in litigation before another entity.
4. With respect to apprenticeship standards, perform the following:
a. Inform contractors and subcontractors bidding public works about
apprenticeship requirements;
b. Send copies of awards and notices of discrepancies to the Division of
Apprenticeship Standards as required under Labor Code Section
1773.3;
c. refer complaints and promptly report suspected violations of
apprenticeship requirements to the Division of Apprenticeship
Standards;
d. enforce prevailing wage pay requirements for apprentices consistent
with the practice of the Labor Commissioner to ensure that:
1) any contributions required pursuant to Labor Code Section
1777.5(m) are paid to the appropriate entity;
2) apprentices are paid no less than the prevailing apprentice rate;
3) workers listed and paid as apprentices on certified payroll
records are, in fact, duly registered as apprentices with the
Division of Apprenticeship Standards; and
18
4) the regular prevailing wage rate is paid to any worker who is
not a duly registered apprentice and for all hours worked in
excess of the maximum ratio permitted under Labor Code
Section 1777.5(g).
5. Maintain records for each public work project subject to prevailing wage
requirements which include a separate, written summary of labor compliance
activities and relevant facts pertaining to that particular project.
a. The summary shall be maintained using the form, Single Project Labor
Compliance Review and Enforcement Report Form (in Appendix C)
following 8 CCR §16434.
b. The summary shall demonstrate that reasonable and sufficient efforts
have been made to enforce prevailing wage requirements consistent
with the practice of the Labor Commissioner.
c. Records for a prevailing wage project shall be retained for the later of:
1) at least one year after the acceptance of the public work or 5
years after cessation of all labor on a public work that has not
been accepted; or
2) one year after a final decision or judgment in any litigation
under Labor Code Section 1742.
d. A written summary or report includes information maintained
electronically, provided the summary or report can be printed in hard
copy form or is in an electronic format that can be transmitted by
email or compact disk and would be acceptable for the filing of
documents in a federal or state court of record in California.
6. Prepare an Audit as a written summary when there has been a violation of the
Public Works Chapter of the Labor Code resulting in the underpayment of
wages.
a. An Audit will include prevailing wage deficiencies for each underpaid
worker with any penalties to be assessed under Labor Code Sections
1775 and 1813, as determined after consideration of the best
information available as to actual hours worked, amounts paid, and
classifications of workers employed in connection with the public
work. An Audit may include, but is not limited to:
1) worker interviews;
2) complaints from workers or other interested persons;
3) all time cards, cancelled checks, cash receipts, trust fund forms,
books, documents, schedules, forms, reports, receipts or other
evidences which reflect job assignments;
4) work schedules by days and hours; and
5) disbursement by way of cash, check, or any other method, of
funds to a person(s) by job classification and/or skill pursuant
to a public works project.
19
b. An Audit will contain details sufficient to enable the Labor
Commissioner, if requested to determine the amount of forfeiture
under section 16437, to draw reasonable; conclusions as to compliance
with the requirements of the Public Works Chapter of the Labor Code,
and to enable accurate computation of underpayments of wages to
workers and of applicable penalties and forfeitures. To meet such
standards, the Audit Reporting Forms (included in the Forms section
as Appendix B in this document) will be utilized:
1) Public Works Investigation Worksheet
2) Public Works Audit Worksheet
3) Prevailing Wage Determination Summary
c. An Audit report will also include a brief narrative identifying the Bid
Advertisement Date of the contract for public work and summarizing
the nature of the violation and the basis upon which the determination
of underpayment was made.
d. Records supporting an Audit shall be maintained by the City to satisfy
its burden of coming forward with evidence in administrative review
proceedings under Labor Code Section 1742 and the Prevailing Wage
Hearing Regulations found at sections 17201-17270 of Title 8 of the
California Code of Regulations.
7. Provide notification of an opportunity to resolve a wage deficiency to the
contractor and affected subcontractor prior to a determination of the amount
of forfeiture by the Labor Commissioner after a determination that violations
of the prevailing wage laws have resulted in the underpayment of wages and
an audit has been prepared.
a. The contractor and affected subcontractor shall be provided at least 10
days following such notification to submit exculpatory information
consistent with the "good faith mistake" factors set forth in Labor
Code Section 1775(a)(2)(A)(i) and (ii).
b. Based upon the contractor's submission, the City's LCP may
reasonably conclude the failure to pay correct wages was a good faith
mistake and the City shall not be required to request the Labor
Commissioner for a determination of the amount of penalties to be
assessed under Labor Code Section 1775 if the following terms are
met:
1) the contractor and/or affected subcontractor have no known
prior record of failure to meet their prevailing wage
obligations;
2) underpayment of wages to workers is promptly corrected; and
3) proof of such payment is received by the City's LCP.
c. For each instance in which a wage deficiency is resolved in
accordance with this regulation, the City's LCP shall maintain a
written record of the failure of the contractor or subcontractor to meet
its prevailing wage obligation. The record shall include:
1) name and description of the public works project;
2) contractor or affected subcontractor involved;
20
3) gross amount of wages paid to workers to resolve the
prevailing wage deficiency; and
4) a copy of the Audit prepared for this incident including any
exculpatory information submitted by the affected contractor or
subcontractor.
8. Recommend a withhold of penalties, forfeitures, and underpayment of wages
for violations of the requirements of this program.
9. Ensure accord with Labor Code Section 1771.5(b) that this LCP requires at a
minimum the inclusion of appropriate language in bid requests, design-build
requests, the contract, and purchase orders concerning California Labor Code
Chapter 1 of Part 7 of Division 2:
a. A provision that contract payments are not made when payroll records
are delinquent or inadequate; and
b. A pre-construction conference with listed contractors and
subcontractors to discuss applicable federal and state labor law
requirements as outlined in the Checklist of Labor Law Requirements
(see Attachment A) with copies of forms furnished and discussed.
10. Take cognizance of prevailing wage violations under California Labor Code
Section 1726 and take any appropriate action pursuant to and in accordance
with that responsibility and authority.
11. Enforce prevailing wage requirements, consistent with the policy of the state
by taking reasonable, vigorous and prompt action to determine whether
violations exist and enforce compliance, including through imposition of
appropriate penalties and formal enforcement action, when violations are
found. This LCP shall neither avoid use of its enforcement authority based on
cost considerations nor use its authority in an unreasonable manner to gain
leverage over a contractor or subcontractor. Unreasonable use of enforcement
authority includes, but is not limited to, prolonged or excessive withholdings
of contract payments without making a determination a violation has
occurred.
To the extent authorized by law, the City or a Joint Powers Authority to which
the City is a party, may contract with a third party to initiate and enforce all or
part of its LCP provided the third party is approved by the Director to operate
an LCP. This shall not limit the City's authority to contract for services for the
operation of its own approved LCP, including services by persons licensed or
certified by the State of CA to practice law, architecture, engineering or
accounting.
A private entity approved by the Director to operate an LCP and that operates
an LCP pursuant to a contract with the City or a Joint Powers Authority with
the City as a party shall have the same rights and responsibilities as the City in
21
administering the LCP, including but not limited to complying with the
conflict of interest provisions of the Political Reform Act including disclosure
requirements for LCP employees and consultants who participate in making
governmental decisions as defined under Title 2 CA Code of Regulations
Section 18701 and maintaining, disclosing, or keeping confidential personnel
information, payroll records, and other information and records in accordance
with the Labor Code Section 1776, the CA Public Records Act and the
Information Practices Act of 1977.
12. Pursue continual development of abilities to perform labor compliance
oversight including securing training on enforcement of prevailing wage
requirements, monitoring and investigation, and procedural requirements and
responsibilities.
13. Designate employees for this program who participate in making decisions for
this Labor Compliance Program and require those employees to file
Statements of Economic Interest (FPPC Form 700) through the filing officer
for the City of Rosemead and to comply with other applicable requirements of
the Political Reform Act (commencing with Section 87100 of the Government
Code) in connection with this work.
14. Any failure of this Labor Compliance Program to comply with an requirement
shall not of itself constitute a defense to the failure to pay prevailing wages or
meet other obligations imposed by California Labor Code Chapter 1, Part 7,
Division 2.
B. Withholding Contract Payments When Payroll Records are
Delinquent or Inadequate
1. "Withhold" means to cease payments by the awarding body, its agents or
others who pay on its behalf to the contractor. Where the violation is by a
subcontractor, the contractor shall be notified of the nature of the violation
and reference made to its rights under Labor Code Section 1729. A release
bond under Civil Code Section 3196 may not be posted for release of funds
being withheld for the violation of the prevailing wage law.
2. "Contracts" except as otherwise provided by agreement, means only contracts
under a single master contract, or contracts entered into as stages of a single
project which may be the subject of withholding, pursuant to Labor Code
Sections 1720, 1720.2, 1720.3, 1720.4, 1771, and 1771.5.
3. "Delinquent payroll records" means those not submitted on the basis set forth
in the City Contract and the LCP.
4. "Inadequate payroll records" are any one of the following:
22
a. A record lacking the information required by Labor Code Section
1776.
b. A record which contains the required information but which is not
certified, or certified by someone not an agent of the contractor or
subcontractor.
c. A record remaining uncorrected for one payroll period after the
awarding body has given the contractor notice of inaccuracies detected
by audit or record review, provided, however, that prompt correction
will stop any duty to withhold if such inaccuracies do not amount to
one-percent (1%) of the entire certified weekly payroll in dollar value
and does not affect more than half the persons listed as workers
employed on that certified weekly payroll, as defined in Labor Code
Section 1776 and Title 8 CCR Section 16401. Prompt correction will
stop any duty to withhold if such inaccuracies are de minimus.
5. When payroll records are delinquent or inadequate, the withholding of
contract payments is required by Labor Code Section 1771.5 (b)(5) and does
not require the prior approval of the Labor Commissioner. The City shall only
withhold those payments due or estimated to be due to the contractor or
subcontractor whose payroll records are delinquent or inadequate, plus any
additional amount that the City's LCP has reasonable cause to believe may be
needed to cover a back wage and penalty assessment against the contractor or
subcontractor whose payroll records are delinquent or inadequate. A
contractor shall be required in turn to cease all payments to a subcontractor
whose, payroll records are delinquent or inadequate until the City's LCP
provides notice that the subcontractor has cured the delinquency or deficiency.
a. When contract payments are withheld under this section, the City's
LCP shall provide the contractor and subcontractor, if applicable, with
immediate written notice that includes all of the following:
1) a statement that payments are being withheld due to delinquent
or inadequate payroll records, and that identifies what records
are missing or states why records that have been submitted are
deemed inadequate;
2) the specific amount being withheld; and
3) notification of the contractor's or subcontractor's right to
request an expedited hearing to review the withholding of
contract payments under Labor Code Section 1742, limited to
the issue of whether the records are delinquent or inadequate or.
the City's LCP has exceeded its authority under this section.
b. No contract payments shall be withheld solely on the basis of
delinquent or inadequate payroll records after the required records
have been produced.
c. In addition to withholding contract payments based on delinquent or
inadequate payroll records, penalties shall be assessed under Labor
Code Section 1776(g) for failure to timely comply with a written
request for certified payroll records. The assessment of penalties under
23
Labor Code Section 1776(g) does regdire the prior approval of the
Labor Commissioner under section 16436 of these regulations.
Pursuant to Labor Code Section 1776, the contractor shall, as a penalty
to the City, forfeit twenty-five dollars ($25) for each calendar day, or
portion there of, for each worker, until strict compliance is effectuated.
C. Withholding for Violation for Not Paying the Per Diem Prevailing
Wages
1. Where the violation is by a subcontractor, the general contractor shall be
notified of the nature of the violation and reference made to its rights under
Labor Code Section 1729.
2. "Amount equal to the underpayment" is the total of the following determined
by payroll review, audit, or admission of the contractor or subcontractor.
a. The difference between the amounts paid to workers and the correct
General Prevailing Wage Rate of Per Diem Wages as defined in Title
8, CCR Section 16000, et.seg.
b. The difference between the amounts paid to workers and the correct
amounts of employer payments, as defined in Title 8 CCR Section
16000 et seg. and determined to be part 'of the prevailing rate costs of
contractors due for employment of workers in such craft, classification
or trade in which they were employed and the amounts paid.
c. Estimated amounts of "illegal taking of wages."
d. Amounts of apprenticeship training contributions paid to neither the
program sponsor's training trust nor the California Apprenticeship
Council.
e. The withholding of contract payments when, after investigation, it is
established that underpayment or violations have occurred requires the
prior approval of the Labor Commissioner under sections 16436 and
16437 of these regulations. I
3. Provisions relating to the penalties under Labor Code Sections 1775 and 1813:
a. Pursuant to Labor Code Section 1775, the contractor shall, as a penalty
to the City, forfeit up to fifty dollars ($50) for each calendar day, or
portion thereof, for each worker paid less than the prevailing wages.
b. Pursuant to Labor Code Section 1813, the contractor shall, as a penalty
to the City on whose behalf the contract is awarded, forfeit twenty-five
dollars ($25) for each worker employed in the execution of the
contract by the contractor or by any subcontractor for each calendar
day during which such worker is required or permitted to work more
than eight (8) hours in any one calendar day and forty (40) hours in
any one calendar week.
24
D. Forfeitures Requiring Approval by the Labor Commissioner
1. "Forfeitures" are the amounts of unpaid penalties and wages assessed by the
City's LCP and proposed to be withheld pursuant to Labor Code Section
1771.6(a) and includes:
a. the difference between prevailing wage rates and the amount paid
to each worker for each calendar day or portion thereof for which
each worker was paid less than the prevailing wage rate by the
contractor or subcontractor; and
b. penalties assessed under Labor Code Sections 1775, 1776 and
1813.
2. "Failing to pay the correct rate of prevailing wages" means those public works
violations which the Labor Commissioner has exclusive authority to approve
before they are recoverable by the Labor Compliance Program and which are
appealable by the contractor before the Director of the Department of
Industrial Relations under Labor Code Sections 1742 and 1742.1 pursuant to
the California Code of Regulations Title 8, Chapter 8, Subchapter 8 17201
through 17270). Regardless of what is defined as "prevailing wages" in
contract terms, noncompliance with the following are considered failures to
pay prevailing wages:
a. Nonpayment of items defined as "Employer Payments" and "General
Prevailing Rate of Per Diem Wages" in Title 8 CCR Section 16000
and Labor Code Section 1771.
b. Failure to provide complete and accurate payroll records, as required
by Labor Code Section 1776.
c. Paying apprentice wages lower than the journey level rate to a worker
who is not an apprentice as defined in Labor Code Section 3077,
working under an apprentice agreement in a recognized program.
d. Accepting or extracting kickbacks, in violation of Labor Code Section
1778.
e. Engaging in prohibited actions related to fees for registration as a
public works employee, in violation of Labor Code Section 1779.
f. Failure to pay overtime for work over eight (8) hours in any one day or
forty (40) hours in any one week, in violation of Labor Code Sections
1813, 1815, or Title 8 CCR Section 16200(a)(3)(F).
3. If the aggregate amount of forfeitures assessed as to a contractor or
subcontractor is less than $1,000.00, the forfeitures shall be deemed approved
by the Labor Commissioner upon service and the Labor Commissioner's
receipt of copies of the following: (1) the Notice of Withholding of Contract
Payments authorized by Labor Code Section 1771.6(a); (2) an Audit as
defined in section 16432(e) of these regulations, and (3) a brief narrative
identifying the Bid Advertisement Date of the contract for public work and
summarizing in nature of the violation, the basis of the underpayment, and the
25
factors considered in determining the assessment of penalties, if any, under
Labor Code Section 1775.
4. For all other forfeitures, approval by the Labor Commissioner shall be
requested and obtained in accordance with section 16437.
E. Determination of Amount of Forfeiture by the Labor Commissioner
1. Where the City's LCP requests a determination of the amount of forfeiture,
the request shall include a file or report to the Labor Commissioner which
contains at least the following information:
a. The date that the public work was accepted and the date that a notice
of completion was filed.
b. Any other deadline which, if missed, would impede collection.
c. Evidence of violation in narrative form.
d. Evidence that an "audit" or "investigation" occurred in compliance
with Title 8 CCR Section 16432.
e. Evidence that the contractor was given the opportunity to explain why
it believes there was no violation, or that any violation was caused by
mistake, inadvertence, or neglect before the forfeiture was sent to the
Labor Commissioner, and the contractor either did not do so or failed
to convince the awarding body of its position.
f Where the City seeks not only amounts of wages but also a penalty as
part of the forfeiture and the contractor has unsuccessfully contended
that the cause of violation was a mistake, inadvertence or neglect, a
statement should accompany the proposal for a forfeiture with a
recommended penalty amount, pursuant to Labor Code Section 1775.
g. Where the City seeks only wages or a penalty less than fifty dollars
($50) per day as part of the forfeiture and the contractor has
successfully contended that the cause Hof violation was a mistake,
inadvertence or neglect, then the file should include the evidence as to
the contractor's knowledge of its obligation, including the LCP's
communication to the contractor of the obligation in the bid
invitations, in the preconstruction conference agenda and records, and
any other notice given as part of the contracting process. Included with
the file should be a statement similar to that described in subsection (f)
above and recommended penalty amounts, pursuant to Labor Code
Section 1775.
h. The previous record of the contractor in meeting prevailing wage
obligations.
i. Whether the City's LCP is approved on an interim or temporary basis
under sections 16425 or 16426 above or extended approval under
section 16427.
26
2. The file or report shall be served on the Labor Commissioner as soon as
practicable after the violation has been discovered, and not less than 30 days
before the final payment, but in no event less than 30 days before the
expiration of the limitations period set forth in Labor Code Section 1741.
3. A copy of the file or report shall be served on the contractor at the same time
it is sent to the Labor Commissioner. The City may exclude from the
documents served on the contractor/subcontractor or surety copies of
documents secured from these parties during an audit, investigation or
meeting if those documents are clearly referenced in the file or report.
4. The Labor Commissioner shall affirm, reject or modify the forfeiture in whole
or in part as to penalty and/or wages due.
5. The determination of the forfeiture by the Labor Commissioner is effective on
the following date for Labor Compliance Programs having initial approval
pursuant to Section 16426 of the California Code of Regulations:
a. On the date the Labor Commissioner serves by first class mail on the
City and on the contractor, an endorsed copy of the proposed
forfeiture, or a drafted forfeiture statement which sets out the amount
of forfeiture approved. Service on the contractor is effective if made
on the last address supplied by the contractor in the record. The Labor
Commissioner's approval, modification or disapproval of the proposed
forfeiture shall be served within thirty (30) days of receipt of the
proposed forfeiture.
b. If the City's LCP is operating with extended authority under Section
16427, approval is effective 20 days after the requested forfeitures are
served upon the Labor Commissioner, unless the Labor Commissioner
serves a notice upon the parties, within that time period, that this
forfeiture request is subject to further review. In such cases, a notice
that approval will follow such a procedure will be included in the
transmittal of the forfeiture request to the contractor. If the Labor
Commissioner notifies the parties of a decision to undertake further
review, the Labor Commissioner's final approval, modification or
disapproval of the proposed forfeiture shall be served within 30 days
of the date of notice of further review.
F. Liquidated Damages
1. In accordance with Labor Code Section 1742.1 (a) after 60 days following the
service of a civil wage and penalty assessment under Section 1741 or a notice
of withholding under subdivision (a) of Section 1771.6, the affected
contractor, subcontractor, and surety on a bond or bonds issues to secure the
payment of wages covered by the assessment or notice shall be liable for
liquidated damages in an amount equal to the wages, or portion thereof, that
still remain unpaid.
27
a. If the assessment or notice subsequently is overturned or modified
after administrative or judicial review, liquidated damages shall be
payable only on the wages found to be due and unpaid.
b. If the contractor or subcontractor demonstrates to the satisfaction of
the Director substantial grounds for appealing the assessment or notice
with respect to a portion of the unpaid wages covered by the
assessment or notice, the Director may, exercise discretion to waive
payment of the liquidated damages with respect to that portion of the
unpaid wages.
2. Any liquidated damages shall be distributed to the employee along with the
unpaid wages.
3. Section 203.5 shall not apply to claims for prevailing wages under this
chapter.
4. If within 60 days following service of the assessment or notice, the full
amount including penalties has been deposited with the DIR to hold in escrow
pending administrative and judicial review, there shall be no liability for
liquidated damages, under Section 1742.1 (b) notwithstanding subdivision (a).
The DIR will release such funds, plus any earned interest, at the conclusion of
all administrative and judicial review to the persons or entities found to be
entitled to such funds.
G. Request for Review
1. A contractor or subcontractor may request a settlement meeting pursuant to
Labor Code Section 1742.1(b) and may request review of a City of Rosemead
LCP enforcement action in accordance with Labor Code Sections 1771.6(b)
and 1742 and regulations found in sections 17201-17270 of Title 8 of the
California Code of Regulations.
2. The City's LCP shall have the rights and responsibilities of the Enforcing
Agency (as defined in section 17202(f) of Title 8 of the California Code of
Regulations), in responding to such a request for review, including but not
limited to:
a. serve notices;
b. transmit the Request for Review to the hearing office;
c. provide an opportunity to review evidence in a timely manner;
d. participate through counsel in all hearing proceedings; and
e. meet the burden of establishing prima facie support for the Notice of
Withholding of Contract Payments.
28
3. If a contractor or subcontractor seeks review of a City LCP enforcement
action, the Labor Commissioner may intervene to represent the City or to
enforce relevant provisions of the Labor Code consistent with the practice of
the Labor Commissioner, or both.
4. Except in cases where the Labor Commissioner has intervened, the City's
LCP has the authority to prosecute, settle, or seek the dismissal of any Notice
of Withholding of Contract Payments issued pursuant to Labor Code Section
1771.6 and any review proceeding under Labor Code Section 1742, without
any further need for approval by the Labor Commissioner.
5. The City's LCP shall document the reasons for any settlement or request for
dismissal and make that documentation available to the Labor Commissioner
upon request whenever the City settles in whole or in part or seeks and obtains
the dismissal of a Notice of Withholding of Contract Payments or a review
proceeding under Labor Code Section 1742.
H. Deposits of Penalties and Forfeitures Withheld
1. Where the involvement of the Labor Commissioner has been limited to a
determination of the actual amount of penalty, forfeiture, or underpayment of
wages and the matter has been resolved without litigation by or against the
Labor Commissioner, the City shall deposit penalties and forfeitures into its
General Fund.
2. Where collection of fines, penalties or forfeitures results from court action to
which the Labor Commissioner and the City are both parties, the fines,
penalties or forfeitures shall be divided between the General Funds of the
State and City, as the court may decide.
3. All amounts recovered by suit brought by the Labor Commissioner, and to
which the City is not a party, shall be deposited in the General Fund of the
State of California.
4. All wages and benefits which belong to a worker and are withheld or collected
from a contractor or subcontractor, either by withholding or as a result of
court action pursuant to Labor Code Section 1775, and which have not been
paid to the worker or irrevocably committed on the worker's behalf to a
benefits fund, shall be deposited with the Labor Commissioner, who will deal
with such wages and benefits in accordance with Labor Code Section 96.7.
I. Debarment Policy
It is the policy of the City that the public works prevailing wage requirements set
forth in the California Labor Code, Section 1720-1861, be strictly enforced. In
furtherance thereof, construction contractors and subcontractors found to be repeat
violators of the California Labor Code shall be referred to the Labor Commissioner
29
for debarment from bidding on or otherwise being awarded any public work contract,
within the State of California, for the performance of construction and/or maintenance
services for the period not to exceed three (3) years in duration. The duration of the
debarment period shall depend upon the nature and severity of the labor code
violations and any mitigating and/or aggravating factors, which may be presented at
the hearing conducted by the Labor Commissioner for such purpose.
30
SECTION VII
NOTICE OF WITHHOLDING AND REVIEW THEREOF
A. Notice of Withholding of Contract Payments
After determination of the amount of forfeiture by the Labor Commissioner, the City
shall provide notice of withholding of contract payments to the contractor and
subcontractor, if applicable. The notice shall be in writing and shall describe the
nature of the violation and the amount of wages, penalties and forfeitures withheld.
Service of the notice shall be completed pursuant to Section 1013 of the Code of Civil
Procedure by first-class and certified mail to the contractor and subcontractor, if
applicable. The notice shall advise the contractor and subcontractor, if applicable, of
the procedure for obtaining review of the withholding of contract payments. The
awarding body shall also serve a copy of the notice by certified mail to any bonding
company issuing a bond that secures the payment of wages covered by the notice and
to any surety on a bond, if their identities are known to the awarding body. A copy of
the Notice of Withholding of Contract Payments (NWCP) to be utilized by the City is
found as Attachment D to this document.
B. Review of NWCP
1. An affected contractor or subcontractor may obtain review of a NWCP under
this chapter by transmitting a written request to the office of the LCP that
appears on the NCWP within sixty (60) days after service of the NWCP. If no
hearing is requested within sixty (60) days after service of the NWCP, the
NWCP shall become final.
2. Within ten (10) days following the receipt of the request for review, the LCP
shall transmit to the Office of the Director-Legal Unit the request for review
and copies of the Notice of Withholding of Contract Payments, any audit
summary that accompanied the notice, and a proof of service or other
documents showing the name and address of any bonding company or surety
that secures the payment of the wages covered by the notice. A copy of the
required Notice of Transmittal to be utilized by the City is found as
Attachment E to this document.
3. Upon receipt of a timely request, a hearing shall be commenced within ninety
(90) days before the director, who shall appoint an impartial hearing officer
possessing the qualifications of an Administrative Law judge pursuant to
subdivision (b) of Section 11502 of the Government Code. The appointed
hearing officer shall be an employee of the department, but shall not be an
employee of the Division of Labor Standards Enforcement. The contractor or
subcontractor shall be provided an opportunity to review evidence to be
utilized by the LCP at the hearing within twenty (20) days of the receipt of the
written request for a hearing. Any evidence obtained by the LCP subsequent
to the 20-day cutoff shall be promptly disclosed to the contractor or
31
Y
subcontractor. A copy of a Notice of Opportunity to Review Evidence
Pursuant to Labor Code Section 1742(b) form is found as Attachment F to this
document. t
The contractor or subcontractor shall have the burden of proving that the basis
for the NWCP is incorrect. The NWCP shall be sufficiently detailed to
provide fair notice to the contractor or subcontractor of the issues at the
hearing.
Within forty-five (45) days of the conclusion of the hearing, the director shall
issue a written decision affirming, modifying or dismissing the assessment.
The decision of the director shall consist of a notice of findings and an order.
This decision shall be served on all parties pursuant to Section 1013 of the
Code of Civil Procedure by first-class mail at the last known address of the
party on file with the LCP. Within fifteen (15) days of the issuance of the
decision, the director may reconsider or modify the decision to correct an
error, except that a clerical error may be corrected at any time.
The Director has adopted regulations setting forth procedures for hearings
under this subdivision. The regulations are found as Attachment G to this
document.
4. An affected contractor or subcontractor may obtain review of the decision of
the Director by filing a petition for a writ of mandate to the appropriate
Superior Court pursuant to Section 1094.5 of the Code of Civil Procedure
within forty-five (45) days after service of the decision. If no petition for writ
of mandate is filed within forty-five (45) days after service of the decision, the
order shall become final. If it is claimed in a petition for writ of mandate that
the findings are not supported by the evidence, abuse of discretion is
established if the court determines that the findings are not supported by
substantial evidence in the light of the whole record.
5. A certified copy of a final order may be fifed by the Labor Commissioner in
the Office of the Clerk of the Superior Court in any county in which the
affected contractor or subcontractor has property or has or had a place of
business. The Clerk, immediately upon the filing, shall enter judgment for the
state against the person assessed in the amount shown on the certified order.
6. A judgment entered pursuant to this procedure shall bear the same rate of
interest and shall have the same effect as other judgments and shall be given
the same preference allowed by law on otlier judgments rendered for claims
for taxes. The Clerk shall not charge for the service performed by him or her
pursuant to this section.
7. This procedure shall provide the exclusive method for review of a NWCP by
the City to withhold contract payments pursuant to Section 1771.7.
32
p SECTION VIII
DISTRIBUTION OF FORFEITED SUMS
Before making payments to the contractor of money due under a contract for public work, the
City shall withhold and retain there from all amounts required to satisfy the NWCP. The amounts
required to satisfy the NWCP shall not be disbursed by the City until receipt of a final order that
is no longer subject to judicial review.
Pending a final order or the expiration of the time period for seeking review of the notice of the
withholding, the City shall not disburse any contract payments withheld.
From the amount recovered, the wage claim shall be satisfied prior to the amount being applied
to penalties. If insufficient money is recovered to pay each worker in full, the money shall be
prorated among all workers employed on the public works project who are paid less than the
prevailing wage rate shall have priority over all Stop Notices filed against the prime contractor.
Wages for workers who cannot be located shall be placed in the Industrial Relations Unpaid
Fund and held in trust for the workers pursuant to Section 96.7. Penalties shall be paid into the
General Fund of the City that has enforced this chapter pursuant to Section 1771.7.
33
t
SECTION IX
OUTREACH ACTIVITIES
To ensure the successful implementation of the City's Labor Compliance Program, there shall be
several outreach activities initiated and maintained.
A. Providing Information to the Public
Labor Compliance Officers shall be responsible for communication and outreach
activities relative to public information on the City's LCP:
1. Regular presentations to contractors at all City Pre-Bid Conferences and
Pre-Construction Conferences.
2. Ongoing communication via correspondence and with workers at City job
sites when review of the certified payroll records reveals the possibility of
prevailing wage violations.
3. Periodic meetings with contractor orga
subcontractors interested in public works
B. In-service Management Training on the
The Labor Compliance Program shall provid
training and workshops for City staff relative
administration of this Labor Compliance Program.
prime contractors and
g with the City.
Labor Compliance Program
e ongoing management in-service
to the terms, requirements and
34
SECTION X
ANNUAL REPORTS
A. Annual Report on Prevailing Wage Monitoring
The City's LCP will submit to the Mayor with copies to City Council members an
annual report on prevailing wage monitoring in the format required by the DIR (LCP
ARl) which will include the following information:
1. Progress report on the LCP in sufficient detail to afford a basis for evaluating
the scope and level of enforcement activity of the LCP.
2. Annual reporting period (based on DIR designation) summary of.
a. Monitoring activities;
b. Record keeping activities;
c. Labor Code violations identified and reported to DLSE;
d. Statistical analysis of the prevailing wage violations on City public
works projects;
e. Summary of outreach activities;
f Certification of compliance with conflict of interest disclosure
requirements as defined by Title 2, CA Code of Regulations section
18701; and
g. Current statement disclosing information required under section 16426
(a)(2), (3) and (5)-
B. Annual Report on the LCP to the Director of the Department of
Industrial Relations
The City's LCP will submit to the Director of the Department of Industrial Relations
an annual report on the operation of its LCP within sixty (60) days after. the end of its
annual reporting period as designated by the DIR's approval of the LCP. The annual
report shall be made on the appropriate form LCP-ARI and will contain, as a
minimum, the following information:
1. Number of public works contracts awarded which are subject to prevailing
wages and their total value.
2. A summary of wages due to workers resulting from failure by contractors to
pay prevailing wage rates, the total amount withheld from money due the
contractors and the total amount recovered by action in any court of
competent jurisdiction.
3. A summary of penalties and forfeitures imposed and withheld or recovered in
a court of competent jurisdiction.
4. A special summary of all audits that were conducted upon request of Labor
Commissioner.
35
5. A certification of compliance with conflict of interest disclosure requirements
by employees and consultants who participate in making governmental
decisions, as defined under Title 2, California Code of Regulations, section
18701 and a current statement disclosing the information required under
section 16426(a)(2), (3) and (5).
6. Information in the Annual Report shall be reported in sufficient detail to
afford a basis to evaluate the scope and level of enforcement activity of the
LCP.
Copies of this report will be distributed to the Director of the Department of Industrial
Relations and the Chief Operating Officer.
36
ATTACHMENT A
CITY OF ROSEMEAD
LABOR COMPLIANCE PROGRAM
CHECKLIST OF LABOR LAW REQUIREMENTS
FOR REVIEW AT PRE-CONSTRUCTION CONFERENCE
(In accordance with CCR Section 16421 and 16430)
Federal and State labor law requirements applicable to the contract are composed of, but not
limited to, the following:
1. Payment of Prevailing Wage Rates. The award of this public works contract
requires that all workers employed on this project be paid not less than the specified
general prevailing wage rates by the contractor and its subcontractors.
The contractor is responsible to obtain and comply with all applicable general
prevailing wage rates for trades workers and any rate changes which may occur
during the term of the contract. Prevailing wage rates and rate changes are to be
posted at the job site for workers to view.
2. Apprentices. It is the duty of the contractor and subcontractors to employ registered
apprentices on this public works project per Labor Code Section 1777.5.
3. Penalties. Penalties, including forfeitures and debarment, shall be imposed for
contractor/subcontractor failure to pay prevailing wages, failure to maintain and
submit upon request accurate certified payroll records, failure to employ apprentices
and failure to pay employees for all hours worked at the correct prevailing wage rate
in accordance with Labor Code Sections 1775, 1776, 1777.7, and 1813.
4. Certified Payroll Records. Per Labor Code Section 1776, contractors and
subcontractors are required to keep accurate payroll records which reflect the name,
address, social security number and work classification of each employee; the straight
time and overtime hours worked each day and each week; the fringe benefits; and the
actual per diem wages paid to each joumeyperson, apprentice, worker or other
employee hired in connection with this public works project.
Employee payroll records shall be certified and shall be made available for inspection
at all.reasonable hours at the principal office of the contractor/subcontractor, or shall
be furnished to any employee, or to his or her authorized representative on request.
Contractors and subcontractors shall maintain their certified payrolls on a weekly
basis and shall submit said payrolls weekly. If there has been no work performed
during a given week, the Certified Payroll Record for that week shall be annotated,
"No Work."
37
5. Nondiscrimination in Employment. Prohibitions against employment
discrimination are contained in Labor Code Sections 1735 and 1777.6; the
Government Code; the Public Contract Code; and Title VII of the Civil Rights Act of
1964, as amended. All contractors and subcontractors are required to implement equal
employment opportunities as delineated below:
Equal Employment Poster The equal employment poster shall be posted at
the job site in a conspicuous place visible to employees and employment
applicants for the duration of the project.
Records The contractor and each subcontractor shall maintain accurate
records of employment information as required by the Monthly
Employment Report. This report shall specify ethnicity and gender for
each employee in a craft, trade or classification.
1
Reports A Monthly Employment Report for?the contractor and for each of
its subcontractors is required to be completed and submitted each month
by no later than the fifth day of that month. Reports are to be for the
previous month's work and are to be project specific. If no work was
performed during that month, the form shall,clearly state "No Work."
i
6. Kickback Prohibited. Per Labor Code Section 1778, contractors and subcontractors
are prohibited from accepting, taking wages illegally, or extracting "kickback" from
employee wages.
7. Acceptance of Fees Prohibited. Contractors and subcontractors are prohibited from
exacting any type of fee for registering individuals for public work [Labor Code
Section 1779] or for filling work orders on public works contracts [Labor Code
Section 1780].
8. Listing of Subcontractors. Contractors are required to list all subcontractors hired
to perform work on a public works project when that work is equivalent to more than
one-half of one percent (0.5%) of the total effort [Government Code Section 4100, et
seq.].
9. Proper Licensing. Contractors and subcontractors are required to be properly
licensed. Penalties will be imposed for employing workers while unlicensed [Labor
Code Section 1021 and Business and Professions Code Section 7000, et seq. under
California Contractors License Law]. 1
10. Unfair Competition Prohibited. Contractors and subcontractors are prohibited from
engaging in unfair competition [Business and Professions Code Sections 17200-
17208]. 1
38
11. Workers' Compensation Insurance. All contractors and subcontractors are
required to be insured against liability for workers' compensation or to undertake
self-insurance in accordance with the provisions of Labor Code Section 3700 (Labor
Code Section 1861].
12. OSHA. Contractors and subcontractors are required to comply with the
Occupational, Safety and Health laws and regulations applicable to the particular
public works project.
13. Undocumented Workers. Contractors and subcontractors are required to follow
federal regulations prohibiting the hiring of undocumented workers and requiring
proof of eligibility/citizenship from all workers.
14. Itemized Wage Statements. Contractors and subcontractors are required to observe
Labor Code section 226 and provide itemized wage statements to employees.
15. Public Works Affidavit. Prior to the release of the final payment to the
subcontractors, the prime Contractor shall obtain a Public Works Affidavit (signed
under penalty of perjury) form the subcontractor stating that the subcontractor paid
the specified prevailing wage rates to its workers (CLC § I775.5(b)(4))
In accordance with Federal and State laws, and with City policy and contract documents, the
undersigned contractor herein certifies that it will comply with the foregoing labor law
requirements; and fully understands that failure to comply with these requirements will subject it
to the penalties cited herein.
I acknowledge that I have been informed and are aware of the foregoing requirements and that I
am authorized to make and sign this certification.
For the Contractor:
For the City of Rosemead
Signature Date Signature Date
Printed Name
Printed Name
39
Reserved
40
ATTACHMENT B
CITY OF ROSEMEAD
LABOR COMPLIANCE PROGRAM
AUDIT RECORD FORM
(For Use with CCR Section 16432 Audits)
An audit record is sufficiently detailed to "verify compliance with the requirements of Chapter 1,
Public Works, Part 7 of Division 2," when the audit record displays that the following
procedures have been followed:
1. Audit of the obligation to carry workers' compensation insurance means producing
written evidence of a binder issued by the carrier, or telephone or written inquiry to
the Workers' Compensation Insurance Rating Bureau.
2. Audit of the obligation to employ and train apprentices means inquiry to the program
sponsor for the apprenticeable craft or trade in the area of the public work as to:
Whether contract award information was received, including an estimate of
joumeyperson hours to be performed and the number of apprentices to be employed;
whether apprentices have been requested, and whether the request has been met;
whether the program sponsor knows of any amounts received from the contractor or
subcontractor for the training fund or the California Apprenticeship Council; and
whether persons listed on the certified payroll in that craft or trade being paid less
than the joumeyperson rate are apprentices registered with that program and working
under apprentice agreements approved by the Division of Apprenticeship Standards.
3. Audit of the obligation to pass through amounts, made part of the bid, for
apprenticeship training contributions to either the training trust or the California
Apprenticeship Council, means asking for copies of checks remitted, or when the
audit occurs more than thirty (30) days after the month in which payroll has been
paid, copies of canceled checks remitted.
4. Audit of "illegal taking of wages" means inspection of written authorizations for
deductions (as listed in Labor Code Section 224) in the contractor's files and
comparison to wage deduction statements furnished to employees [Labor Code
Section 2261 together with an interview of several employees as to any payments
made which are not reflected on the wage deduction statements.
5. Audit of the obligation to keep records of working hours [Title 8 CCR Section 164321
and pay not less than required for hours worked in excess of eight (8) hours/day and
forty (40) hours/week [Title 8 CCR Section 16200(a)(3)(F)] means review and audit
of weekly certified payroll records.
6. Audit of the obligation to pay the prevailing per diem wage means review and audit
of weekly certified payroll records for compliance with:
41
a. All elements defined as the General Prevailing Rate of Per Diem Wages in
Title 8 CCR Section 16000, which were determined to be prevailing in the
Director's determination in effect on the date of the call for bids, or as
reflected in any subsequent revised determination issued by the Director's
office, copies of which are available at the Labor Compliance Officer's
officer, the Program Manager's office, and posted at the public works job site.
b. All elements defined as Employer Payments to Workers set forth in Title 8
CCR Section 16000, which were determined to be prevailing in the Director's
determination in effect on the date of the call for bids, or as reflected in any
subsequent revised determination issued by the Director's office, copies of
which are available at the Labor Compliance Officer's office and posted at the
public works job site.
NOTE: Audit Record Worksheet forms are included in the "Forms" section of this handbook:
• Public Works Investigation Worksheet
• Public Works Audit Worksheet
• Prevailing Wage Determination Summary
1
42
ATTACHMENT C
Single Project Labor Compliance Review and Enforcement Report Form
[Appendix C following 8 CCR §16434]
Awarding Body:
Project Name:
Name of Approved Labor Compliance Program:
Bid Advertisement Date:
Acceptance Date:
Notice of Completion Recordation Date:
Summary of Labor Compliance Activities
1. Contract Documents Containing Prevailing Wage Requirements (Identify)
2. Pre job Conference(s) Attach list(s) of attendees and dates
3. Notification to Project Workers of Labor Compliance Program's Contact Person. (Explain Manner of
Notification for each project work site.)
4. Certified Payroll Record Review
a. CPRs Received From:
Contractor/Subcontractor For weeks ending ("w/e") through w/e
43
b. Classifications identified in CPRs and applicable Prevailing Wage Determinations Classification
Determination No.
Classification Determination No.
5. Further investigation or audit due to CPR review, information or complaint from worker or other
interested person, or other reason:
a. Independent Confirmation of CPR Data
Worker Interviews ; Reconciled CPRs with Pay-
Contractor/Subcontractor (Yes/No) checks or Stubs (Yes/No)
b. Employer Payments (Health & Welfare, Pension, Vacation/Holiday) Confirmation
Recipients of Written confirmation
Contractor/Subcontractor Employer Payments Obtained (Yes/No)
c. Contributions to CA Apprenticeship Council or Other Approved Apprenticeship Program
I
Recipients of i Written confirmation
Contractor/Subcontractor Contributions Obtained (Yes/No)
d. Additional Wage Payments or Training Fund Contributions Resulting from Review of CPRs
Additional amounts Additional
Contractor/Subcontractor Paid to Workers Training Fund Explanation
*
*
*
*
*
* Use separate page(s) for explanation
44
6. Complaints Received Alleging Noncompliance with Prevailing Wage Requirements.
Name of Resolution or
Complainant Date Received Current Status
*
*
*
*Use separate page(s) to explain resolution or current status
7. Requests for Approval of Forfeiture to Labor Commissioner
Contractor/Subcontractor Date of Request Approved/Modified/Denied
8. Litigation Pending Under Labor Code Section 1742
Contractor/Subcontractor DIR Case Number
9. (Check one):
Final report this project
Annual report this project
Authorized Representative for Labor Compliance Program
45
Reserved
46
ATTACHMENT D
CITY OF ROSEMEAD
LABOR COMPLIANCE PROGRAM
NOTICE OF DEADLINES FOR FORFEITURES
(Under CCR Section 16437)
TO: (NAME OF CONTRACTOR
This document requests the Labor Commissioner of California to approve a forfeiture of money
you would otherwise be paid. The City Labor Compliance Officer is asking the Labor
Commissioner of California to agree, in twenty (20) days, that the enclosed Evidence Report and
package of materials indicates that you have.violated the law.
Your failure to respond to City's request that the Labor Commissioner approve a forfeiture, by
writing to the Labor Commissioner within twenty (20) days of the date of service (the date of
postmark) of this document on you, may lead the Labor Commissioner to affirm the proposed
forfeiture and may also end your right to contest those amounts further.
You must serve any written response on the Labor Commissioner and the City's Labor
Compliance Officer by return receipt requested/certified mail. If you serve a written explanation,
with evidence, as to why the violation did not occur or why the penalties should not be assessed,
within the twenty (20)-day period, it will be considered.
If you change your address, or decide to hire an attorney, it is your responsibility to advise the
City Labor Compliance Officer by certified mail. Otherwise, notices will be served at your last
address on file, and deadlines may pass before you receive such notice.
47
Reserved
48
ATTACHMENT E
LABOR COMPLIANCE PROGRAM
CITY OF ROSEMEAD
8838 E. Valley Boulevard
Rosemead, California 91770
In
(SEAL)
NOTICE OF WITHHOLDING OF CONTRACT PAYMENTS
Awarding
Project
Prime
' Work Performed in County of Los Angeles
Project No.
After an investigation concerning the payment of wages to workers employed in the execution of
the contract for the above-named public works project, the Labor Compliance Program for the
City of Rosemead ("LCP") has determined that violations of the California Labor Code have
been committed by the contractor and/or subcontractor identified above. In accordance with
Labor Code Sections 1771.5 and 1771.6, the Labor Compliance Program hereby issues this
Notice of Withholding of Contract Payments.
The nature of the violations of the Labor Code and the basis for the assessment are as follows:
The Labor Compliance Program has determined the total amount of wages due is:
The Labor Compliance Program has determined the total amount of penalties assessed under
Labor Code Sections 1775 and 1813 is: $
The Labor Compliance Program has determined the amount of penalties assessed under Labor
Code Section 1776 is: $
LABOR COMPLIANCE PROGRAM
City of Rosemead
By:
49
Reserved i
50
NOTICE OF RIGHT TO OBTAIN REVIEW - FORMAL HEARING
In accordance with Labor Code Sections 1742 and 1771.6, an affected contractor or
subcontractor may obtain review of this Notice of Withholding of Contract Payments by
transmitting a written request to the office of the Labor Compliance Program that appears below
within sixty (60) days after service of the notice. To obtain a hearing, a written Request for
Review must be transmitted to the following address:
City of Rosemead Labor Compliance Program
Review Office-Notice of Withholding of Contract Payments
8838 E. Valley Boulevard
Rosemead, California 91770
A Request for Review either shall clearly identify the Notice of Withholding of Contract
Payments from which review is sought, including the date of the notice, or it shall include a copy
of the notice as an attachment, and shall also set forth the basis upon which the notice is being
contested. In accordance with Labor Code Section 1742, the contractor or subcontractor shall be
provided an opportunity to review evidence to be utilized by the Labor Compliance Program at
the hearing within twenty (20) days of the Labor Compliance Program's receipt of the written
Request for Review.
Failure by a contractor or subcontractor to submit a timely Request for
Review will result in a final order which shall be binding on the contractor
and subcontractor, and which shall also be binding, with respect to the
amount due, on a bonding company issuing a bond that secures the payment
of wages and a surety on a bond. [Labor Code Section 1743.]
In accordance with Labor Code Section 1742(d), a certified copy of a final order may be filed by
the Labor Commissioner in the Office of the Clerk of the Superior Court in any county in which
the affected contractor or subcontractor has property or has or had a place of business. The Clerk,
immediately upon the filing, shall enter judgment for the State against the person assessed in the
amount shown on the certified order.
OPPORTUNITY FOR SETTLEMENT MEETING
In accordance with Labor Code Section 1742.1(c) the Labor Compliance Program shall, upon
receipt of a request from the affected contractor or subcontractor within thirty (30) days
following the service of this Notice of Withholding of Contract Payments, afford the contractor
or subcontractor the opportunity to meet with the Labor Compliance Program's designee to
attempt to settle a dispute regarding the notice. The settlement meeting may be held in person
or by telephone and shall take place before the expiration of the 60-day period for seeking a
hearing as set forth above under the heading Notice of Right to Obtain Review. No evidence of
anything said or any admission made for the purpose of, in the course of, or pursuant to, the
settlement meeting is admissible or subject to discovery in any administrative or civil
proceeding. No writing prepared for the purpose of, in the course of, or pursuant to, the
settlement meeting, other than a final settlement agreement, is admissible or subject to discovery
51
in any administrative or civil proceeding. This opportunity to timely request an informal
settlement meeting is in addition to the right to obtain a formal hearing, and a settlement
meeting may be requested even if a written Request for Review has already been made.
Requesting a settlement meeting, however, does not extend the 60-day period during which a
formal hearing may be requested.
A written request to meet with the Labor Compliance Program's designee to attempt to settle a
dispute regarding this notice must be transmitted to at the following
address: i
City of Rosemead Labor Compliance Program
Review Office-Notice of Withholding of Contract Payments
8838 E. Valley Boulevard\
Rosemead, Californiat91770
1
LIQUIDATED DAMAGES
In accordance with Labor Code Section 1742.1 (a) after 60 days following the service of a civil
wage and penalty assessment under Section 1741 or a notice of withholding under subdivision
(a) of Section 1771.6, the affected contractor, subcontractor, and surety on a bond or bonds
issues to secure the payment of wages covered by the assessment or notice shall be liable for
liquidated damages in an amount equal to the wages, or portion thereof, that still remain unpaid.
If the assessment or notice subsequently is overturned or modified after administrative or judicial
review, liquidated damages shall be payable only on the wages found to be due and unpaid.
Additionally, if the contractor or subcontractor demonstrates to the satisfaction of the director
that he or she had substantial grounds for appealing the assessment or notice with respect to a
portion of the unpaid wages covered by the assessment or notice, the director may exercise his or
her discretion to waive payment of the liquidated damages with respect to that portion of the
unpaid wages. Any liquidated damages shall be distributed to the employee along with the
unpaid wages. Section 203.5 shall not apply to claims for prevailing wages under this chapter.
Under Section 1742.1 (b) notwithstanding subdivision (a), there shall be no liability for
liquidated damages if the full amount of the assessment or notice, including penalties, has been
deposited with the Department of Industrial Relations, within 60 days following service of the
assessment or notice, for the department to hold in escrow pending administrative and judicial
review. The department shall release such funds, plus any earned interest, at the conclusion of all
administrative and judicial review to the persons or entities who are found to be entitled to such
funds.
The Amount of Liquidated Damages Available Under this Notice is S
Distribution:
Prime Contractor
Subcontractor
Surety(s) on Bond
52
ATTACHMENT F
LABOR COMPLIANCE PROGRAM
CITY OF ROSEMEAD
8838 E. Valley Boulevard
Rosemead, California 91770
Phone: (626) 569-2157
Fax: (626) 307-9218
(SEAL)
Date: I In Reply Refer to Case No.:
NOTICE OF TRANSMITTAL
To: Department of Industrial Relations
Office of the Director-Legal Unit
Attention: Lead Hearing Officer
P.O. Box 420603
San Francisco, CA 94142-0603
Enclosed herewith please find a Request for Review, dated
postmarked , and received by this office on
Also enclosed please find the following:
_ Copy of Notice of Withholding of Contract Payments
Copy of Audit Summary
LABOR COMPLIANCE PROGRAM
City of Rosemead
By:
cc: Prime Contractor
Subcontractor
Bonding Company
Please be advised that the Request for Review identified above has been received and transmitted
to the address indicated. Please be further advised that the governing procedures applicable to
these hearings are set forth at Title 8, California Code of Regulations Sections 17201-17270.
These hearings are not governed by Chapter 5 of the Government Code, commencing with
Section 11500.
53
Reserved
54
ATTACHMENT G
LABOR COMPLIANCE PROGRAM
CITY OF ROSEMEAD
8838 E. Valley Boulevard
Rosemead, California 91770
Phone: (626) 569-2157
Fax: (626) 307-9218
(SEAL)
Date: In Reply Refer to Case No.:
Notice of Opportunity to Review Evidence Pursuant to Labor Code Section 1742(b)
To: Prime Contractor
Subcontractor
Please be advised that this office has received your Request for Review, dated
and pertaining to the Notice of Withholding of Contract Payments issued by the Labor
Compliance Program in Case No.
In accordance with Labor Code Section 1742(b), this notice provides you with an opportunity to
review evidence to be utilized by the Labor Compliance Program at the hearing on the Request
for Review, and the procedures for reviewing such evidence.
Rule 17224 of the Prevailing Wage Hearing Regulations provides as follows:
(a) Within ten (10) days following its receipt of a Request for Review, the Enforcing
Agency shall also notify the affected contractor or subcontractor of its opportunity
and the procedures for reviewing evidence to be utilized by the Enforcing Agency at
the hearing of the Request for Review.
(b) An Enforcing Agency shall be deemed to have provided the opportunity to review
evidence required by this Rule if it (1) gives the affected contractor or subcontractor
the option at said party's own expense to either (i) obtain copies of all such evidence
through a commercial copying service or (ii) inspect and copy such evidence at the
office of the Enforcing Agency during normal business hours; or if (2) the Enforcing
Agency, at its own expense, forwards copies of all such evidence to the affected
contractor or subcontractor.
(c) The evidence required to be provided under this Rule shall include the identity of
witnesses whose testimony the Enforcing Agency intends to present, either in person
at the hearing or by declaration or affidavit. This provision shall not be construed as
55
requiring the Enforcing Agency to prepare ;or provide any separate listing of
witnesses whose identities are disclosed within'the written materials made available
under subpart (a).
(d) The Enforcing Agency shall make evidence available for review as specified in
subparts (a) through (c) within twenty (20) days of its receipt of the Request for
Review; provided that, this deadline may be extended by written request or
agreement of the affected contractor or subcontractor. The Enforcing Agency's failure
to make evidence available for review as required by Labor Code Section 1742(b)
and this Rule, shall preclude the enforcing agency from introducing such evidence in
proceedings before the Hearing Officer or the Director.
(e) This Rule shall not preclude the Enforcing Agency from relying upon or presenting
any evidence first obtained after the initial disclosure of evidence under subparts (a)
through (d), provided that, such evidence is promptly disclosed to the affected
contractor or subcontractor. This Rule also shall not preclude the Enforcing Agency
from presenting previously undisclosed evidence to rebut new or collateral claims
raised by another party in the proceeding.
In accordance with the above Rule, please be advised that the Labor Compliance Program's
procedure for you to exercise your opportunity to review evidence is as follows:
Within rive calendar days of the date of this notice, please transmit the attached Request to
Review Evidence to the following address:
LABOR COMPLIANCE PROGRAM
City of Rosemead
8838 E. Valley Boulevard
Rosemead, California 91770.
Phone: (626)569-2158
Fax: (626) 307-9218
Attention: Labor Compliance Officer
56
REQUEST TO REVIEW EVIDENCE
To: LABOR COMPLIANCE PROGRAM
City of Rosemead
8838 E. Valley Boulevard
Rosemead, California 91770
Phone: (626)569-2158
Fax: (626) 307-9218
From:
Regarding Notice of Withholding of Contract Payments Dated
Our Case No.:
The undersigned hereby requests an opportunity to review evidence to be utilized by the Labor
Compliance Program at the hearing on the Request for Review.
Phone No.:
Fax No.:
57
Reserved
58
ATTACHMENT H
PREVAILING WAGE HEARING REGULATIONS
CALIFORNIA CODE OF REGULATIONS
TITLE 8, CHAPTER 8, SUBCHAPTER 6
(SECTIONS 17201 through 17270)
CONTENTS
ARTICLE 1. GENERAL
17201. Scope and Application of Rules.
17202. Definitions.
17203. Computation of Time and Extensions of Time to Respond or Act.
17204. Appointment of Hearing Officers; Delegation of Appointment Authority to Chief Counsel.
17205. Authority of Hearing Officers.
17206. Access to Hearing Records.
17207. Ex Parte Communications.
17208. Intervention and Participation by Other Interested Persons.
17209. Representation at Hearing.
17210. Proper Method of Service.
17211. Filing and Service of Documents by Facsimile or Other Electronic Means.
17212. Administrative Adjudication Bill of Rights.
ARTICLE 2. ASSESSMENT OR NOTICE AND REQUEST FOR REVIEW
17220. Service and Contents of Assessment or Notice of Withholding of Contract Payments.
17221. Opportunity for Early Settlement.
17222. Filing of Request for Review.
17223. Transmittal of Request for Review to Department.
17224. Disclosure of Evidence.
17225. Withdrawal of Request for Review; Reinstatement.
17226. Dismissal or Amendment of Assessment or of Notice of Withholding of Contract Payments.
17227. Early Disposition of Untimely Assessment, Withholding, or Request for Review.
17228. Finality of Assessment or of Withholding of Contract Payments When No Timely
Request for Review is Filed; Authority of Awarding Body to Disburse Withheld Funds.
17229. Finality of Notice of Withholding of Contract Payments; Authority of Awarding Body to
Recover Additional Funds.
ARTICLE 3. PREHEARING PROCEDURES
17230. Scheduling of Hearing; Continuances and Tolling.
17231. Prehearing Conference.
17232. Consolidation and Severance.
17233. Preheating Motions; Cut-Off Date.
17234. Evidence by Affidavit or Declaration.
17235. Subpoena and Subpoena Duces Tecum.
17236. Written Notice to Party in Lieu of Subpoena.
17237. Depositions and Other Discovery.
ARTICLE 4. HEARINGS
17240. Notice of Appointment of Hearing Officer; Objections.
59
17241. Time and Place of Hearing.
17242. Open Hearing; Confidential Evidence and Proceedings; and Exclusion of Witnesses.
17243. Conduct of Hearing.
17244. Evidence Rules; Hearsay.
17245. Official Notice.
17246. Failure to Appear; Relief from Default.
17247. Contempt and Monetary Sanctions.
17248. Interpreters.
17249. Hearing Record; Recording of Testimony and other Proceedings.
17250. Burdens of Proof on Wages and Penalties.
17251. Liquidated Damages.
17252. Oral Argument and Briefs.
17253. Conclusion of Hearing; Time for Decision.
[THERE IS NO ARTICLE 51
ARTICLE 6. DECISION OF THE DIRECTOR
17260. Decision.
17261. Reconsideration.
17262. Final Decision; Time for Seeking Review.
17263. Preparation of Record for Review.
17264. Request for Participation by Director in Judicial Review Proceeding.
ARTICLE 7. TRANSITIONAL RULE
17270. Applicability of these Rules to Notices Issued Between April 1, 2001 and June 30, 2001.
ARTICLE 1. GENERAL
17201. Scope and Application of Rules.
(a) These Rules govern proceedings for review of
civil wage and penalty assessments and the
withholding of contract payments under Articles 1
and 2 of Division 2, Part 7, Chapter 1
(commencing with section 1720) of the Labor
Code, as well as any notice assessing penalties for
noncompliance with payroll record obligations
under Labor Code section 1776. The provisions
of Labor Code section 1742 and these Rules apply
to all such assessments and notices served on a
contractor or subcontractor on or after July 1,
2001 and provide the exclusive method for an
Affected Contractor or Subcontractor to obtain
review of any such notice or assessment. These
Rules also apply to transitional cases in which
notices were served but no court action was filed
under Labor Code sections 1731-1733 prior to
July 1, 2001, in accordance with Section 17270
(Rule 70) below.
(b) These Rules do not govern debarment
proceedings under Labor Code section 1777. 1, nor
proceedings to review determinations with respect
to the violation of apprenticeship obligations
under Labor Code sections 1777.5 and 1777.7, nor
any criminal prosecution.
(c) These Rules do not preclude any remedies
otherwise authorized by law to remedy violations
of Division 2, Part 7, Chapter 1 of the Labor
Code!
(d) I For easier reference, individual sections
within these prevailing wage hearing regulations
are referred to as "Rules" using only their last two
digits. For example, this Section 17201 may be
referred to as Rule 01.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: sections
1742, 1771.5, 1771.6(b), 1773.5, 1776, and
1777.1 - 1777.7, Labor Code; and Stats. 2000,
Chapter 954, § 1.
17202. Definitions.
For the purpose of these Rules:
(a) "Affected Contractor or Subcontractor" means
a contractor or subcontractor (as defined under
Labor Code section 1722.1) to whom the Labor
Commissioner has issued a civil, wage and penalty
assessment pursuant to Labor Code section 1741,
60
or to whom an Awarding Body has issued a notice
of the withholding of contract payments pursuant
to Labor Code section 1771.6, or to whom the
Labor Commissioner or the Division of
Apprentice Standards has issued a notice
assessing penalties for noncompliance with
payroll record obligations under Labor Code
section 1776;
(b) "Assessment" means a civil wage and penalty
assessment issued by the Labor Commissioner or
his or her designee pursuant to Labor Code
section 1741, and it also includes a notice issued
by either the Labor Commissioner or the Division
of Apprenticeship Standards pursuant to Labor
Code section 1776;
(c) "Awarding Body" means an awarding body or
body awarding the contract (as defined in Labor
Code section 1722) that exercises enforcement
authority under Labor Code section 1726 or
1771.5;
(d) "Department" means the Department of
Industrial Relations;
(e) "Director" means the Director of the
Department of Industrial Relations;
(t) "Enforcing Agency" means the entity which
has issued an Assessment or Notice of
Withholding of Contract Payments and with
which a Request for Review has been filed; i.e., it
refers to the Labor Commissioner when review is
sought from an Assessment, the Awarding Body
when review is sought from a Notice of
Withholding of Contract Payments, and the
Division of Apprenticeship Standards when
review is sought from a notice issued by that
agency that assesses penalties under Labor Code
section 1776;
(g) "Hearing Officer" means any person
appointed by the Director pursuant to Labor Code
section 1742(b) to conduct hearings and other
proceedings under Labor Code section 1742 and
these Rules;
(h) "Joint Labor-Management Committee" means
a joint labor-management committee established
pursuant to the federal Labor Management
Cooperation Act of 1978 (section 175a of Title 29
of the United States Code).
(i) "Labor Commissioner" means the Chief of the
Division of Labor Standards Enforcement and
includes his or her designee who has been
authorized to carry out the Labor Commissioner's
functions under Chapter 1, Part 7 of Division 2
(commencing with section 1720) of the Labor
Code;
0) "Party" means an Affected Contractor or
Subcontractor who has requested review of either
an Assessment or a Notice of Withholding of
Contract Payments, the Enforcing Agency that
issued the Assessment or the Notice of
Withholding of Contract Payments from which
review is sought, and any other Person who has
intervened under subparts (a), (b), or (c) of Rule
08 [Section 17208];
(k) "Person" means an individual, partnership,
limited liability company, corporation,
governmental subdivision or unit of a
governmental subdivision, or public or private
organization or entity of any character;
(1) "Representative" means a person authorized
by a Parry to represent that Party in a proceeding
before a Hearing Officer or the Director, and
includes the Labor Commissioner when the Labor
Commissioner has' intervened to represent the
Awarding Body in a review proceeding pursuant
to Labor Code section 1771.6(b).
(m) "Rule" refers to a section within this
subchapter 6. The Rule number corresponds
to the last two digits of the full section number.
(For example, Rule 08 is the same as section
17208.)
(n) "Surety" has the meaning set forth in Civil
Code section 2787 and refers to the entity that
issues the public works bond provided for in Civil
Code sections 3247 and 3248 or any other surety
bond that guarantees the payment of wages for
labor.
(o) "Working Day" means any day that is not a
Saturday, Sunday, or State holiday, as determined
with reference to Code of Civil Procedure sections
12(a) and 12(b) and Government Code sections
6700 and 6701.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5 Labor Code. Reference: sections
2787, 3247, and 3248, Civil Code; sections 12a
and 12b,.Code of Civil Procedure; sections 6700,
6701, 11405.60 and 11405.70, Government Code;
sections1720 et seg., 1722, 1722.1, 1726, 1741,
1742, 1742(b), 1771.5, 1771.6, 1771.6(b), and
1776, Labor Code; and 29 U.S.C. §175a.
17203. Computation of Time and Extensions of
Time to Respond or Act.
(a) In computing the time within which a right
may be exercised or an act is to be performed, the
61
first day shall be excluded and the last day shall
be included. If the last day is not a Working Day,
the time shall be extended to the next Working
Day.
(b) Unless otherwise indicated by proof of
service, if the envelope was properly addressed,
the mailing date shall be presumed to be: a
postmark date imprinted on the envelope by the
U.S. Postal Service if first-class postage was
prepaid; or the date of delivery to a common
carrier promising overnight delivery as shown on
the carrier's receipt.
(c) Where service of any notice, decision,
pleading or other document is by first class mail,
and if within a given number of days after such
service, a right may be exercised, or an act is to be
performed, the time within which such right may
be exercised or act performed is extended five
days if the place of address is within the State of
California, and 10 days if the place of address is
outside the State of California but within the
United States. However, this Rule shall not
extend the time within which the Director may
reconsider or modify a decision to correct an error
(other than a clerical error) under Labor Code
section 1742(b).
(d) Where service of any notice, pleading, or
other document is made by an authorized method
other than first class mailing, extensions of time to
respond or act shall be calculated in the same
manner as provided under section 1013 of the
Code of Civil Procedure, unless a different
requirement has been specified by the appointed
Hearing Officer or by another provision of these
Rules.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: sections
1010 through 1013, Code of Civil Procedure; and
section 1742(b), Labor Code.
17204. Appointment of Hearing Officers;
Delegation of Appointment Authority to Chief
Counsel.
(a) Upon receipt of a Request for Review of an
Assessment or of a Notice of Withholding of
Contract Payments, the Director, acting through
the Chief Counsel (see subpart (d) below), shall
appoint an impartial Hearing Officer to conduct
the review proceeding.
(b) The appointed Hearing Officer shall be an
attorney employed by the Office of the Director -
Legal Unit. However, if no attorney employed by
the Office of the Director - Legal Unit is available
or qualified to serve in a particular matter, the
appointed Hearing Officer may be any attorney or
administrative law judge employed by the
Department, other than an employee of the
Division of Labor Standards Enforcement.
(c) Any person appointed to serve as a Hearing
Officer in any matter shall possess at least the
minimum qualifications for service as an
administrative law judge pursuant to Government
Code section 11502(b) and shall be someone who
is not precluded from serving under Government
Code section 11425.30.
(d) The Director's authority under Labor Code
section 1742(b) to appoint an impartial Hearing
Officer, is delegated in all cases to the Chief
Counsel of the Office of the Director or to the
Chief Counsel's designated Assistant or Acting
Chief Counsel when the Chief Counsel is
unavailable or disqualified from participating in a
particular matter. This delegation includes all
related authority under Rule 40 [Section 172401
below to appoint a different Hearing Officer to
conduct all or any part of a review proceeding as
well as the authority to consider and decide or to
assign to another Hearing Officer for
consideration and decision any motion to
disqualify an appointed Hearing Officer.
NOTE: Authority cited: sections 7, 55, 59,
1742(b), and 1773.5, Labor Code. Reference:
sections 11425.30 and 11502(b), Government
Code; and sections 7, 55, 59, and 1742(b), Labor
Code
17205. Authority of Hearing Officers.
(a) In any proceeding assigned for hearing and
decision under the provisions of Labor Code
section 1742, the appointed Hearing Officer shall
have full power, jurisdiction and authority to hold
a hearing and ascertain facts for the information of
the Director, to hold a prehearing conference, to
issue a subpoena and subpoena duces tecum for
the attendance of a Person and the production of
testimony, books, documents, or other things, to
compel the attendance of a Person residing
anywhere in the state, to certify official acts, to
regulate the course of a hearing, to grant a
withdrawal, disposition or amendment, to order a
continuance, to approve a stipulation voluntarily
entered into by the Parties, to administer oaths and
affirmations, to rule on objections, privileges,
defenses, and the receipt of relevant and material
62
evidence, to call and examine a Party or witness
and introduce into the hearing record documentary
or other evidence, to request a Party at any time to
state the respective position or supporting theory
concerning any fact or issue in the proceeding, to
extend the submittal date of any proceeding, to
exercise such other and additional authority as is
delegated to Hearing Officers under these Rules
or by an express written delegation by the
Director, and to prepare a recommended decision,
including a notice of findings, findings, and an
order for approval by the Director.
(b) There shall be no right of appeal to or review
by the Director of any decision, order, act, or
refusal to act by an appointed Hearing Officer
other than through the Director's review of the
record in issuing or reconsidering a written
decision under Rules 60 [Section 17260] and 61
[Section 17261] below.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
11512, Government Code and section 1742(b),
Labor Code.
17206. Access to Hearing Records.
(a) Hearing case records shall be available for
inspection and copying by the public, to the same
extent and subject to the same policies and
procedures governing other records maintained by
the Department. Hearing case records normally
will be available for review in the office of the
appointed Hearing Officer; provided however, that
a case file may be temporarily unavailable when
in use by the appointed Hearing Officer or by the
Director or his or her designee.
(b) Nothing in this Rule shall authorize the
disclosure of any record or exhibit that is required
to be kept confidential or is otherwise exempt
from disclosure by law or that has been ordered to
be kept confidential by an appointed Hearing
Officer.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: sections
6250 et seq. Government Code and section
1742(b), Labor Code.
17207. Ex Parte Communications.
(a) Except as provided in this Rule, once a
Request for Review is filed, and while the
proceeding is pending, there shall be no direct or
indirect communication regarding any issue in the
proceeding to the appointed Hearing Officer or
the Director, from the Enforcing Agency or any
other Party or other interested Person, without
notice and the opportunity for all Parties to
participate in the communication.
(b) A communication made on the record in the
hearing is permissible.
(c) A communication concerning a matter of
procedure or practice is presumed to be
permissible, unless the topic of the
communication appears to the Hearing Officer to
be controversial in the context of the specific case.
If so, the Hearing Officer shall so inform the other
participant and may terminate the communication
or continue it until after giving all Parties notice
and an opportunity to participate. Any written
communication concerning a matter of procedure
or practice, and any written response, or a written
memorandum identifying the participants and
stating the substance of any such oral
communication or response, shall be added to the
case file so that all Parties have a reasonable
opportunity to review it. Unless otherwise
provided by statute or these Rules, the appointed
Hearing Officer may determine a matter of
procedure or practice based upon a permissible
ex-parte communication. The term "matters of
procedure or practice" shall be liberally construed.
(d) A communication from the Labor
Commissioner to the Hearing Officer or the
Director which is deemed permissible under
Government Code section 11430.30 is permitted
only if any such written communication and any
written response, or a written memorandum
identifying the participants and stating the
substance of any such oral communication or
response, is added to the case file so that all
Parties have a reasonable opportunity to review it.
(e) If the Hearing Officer or the Director receives
a communication in violation of this Rule, he or
she shall comply with the requirements of
Government Code section 11430.50.
(f) To the extent not inconsistent with Labor
Code section 1742, the provisions of Article 7 of
Chapter 4.5 of Title 2, Division 3, Part 1
(commencing with section 11430.10) of the
Government Code governing ex parte
communications in administrative adjudication
proceedings shall apply to review proceedings
conducted under these Rules.
(g) This Rule shall not be construed as
prohibiting communications between the Director
and the Labor Commissioner or between the
63
Director and any other interested Person on issues
or policies of general interest that coincide with
issues involved in a pending review proceeding;
provided that (1) the communication does not
directly or indirectly seek to influence the
outcome of any pending proceeding; (2) the
communication does not directly or indirectly
identify or otherwise refer to any pending
proceeding; and (3) the communication does not
occur at a time when the Director or the other
party to the communication knows that a
proceeding in which the other party to the
communication is interested is under active
consideration by the Director.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: sections
11430.10 through 11430.80, Government Code,
and section 1742(b), Labor Code.
17208. Intervention and Participation by other
Interested Persons.
(a) The Labor Commissioner may intervene as a
matter of right in any review from a Notice of
Withholding of Contract Payments, either as the
Representative of the Awarding Body or as an
interested third Party.
(b) A bonding company and any Surety on a bond
that secures the payment of wages covered by the
Assessment or Notice of Withholding of Contract
Payments shall be permitted to intervene as a
matter of right in any pending review filed by the
contractor or subcontractor from the Assessment
or Withholding of Contract Payments in question;
provided that, intervention is sought at or before
the first preheating conference held pursuant to
Rule 31 [Section 17231] below and within either
30 days after the bonding company or Surety was
served with a copy of the Assessment or Notice of
Withholding of Contract Payments or 30 days
after the filing of the Request for 'Review,
whichever is later. Thereafter, any request to
intervene by such a bonding company or Surety
shall be treated as a motion for permissive
participation under subpart (end) of this Rule. A
bonding company or Surety shall have the burden
of proof with respect to any claim that it did not
receive notice of the Assessment or Notice of
Withholding of Contract Payments until after the
filing of the Request for Review.
(c) The employee(s), labor union, or Joint Labor-
Management Committee who filed the formal
complaint which led the Enforcing Agency to
issue the Assessment or Notice of Withholding of
Contract payments shall be permitted to intervene
in a,pending review filed by the contractor or
subcontractor from the Assessment or
Withholding of Contract Payments in question;
provided that, intervention is sought at or before
the first prehearing conference held pursuant to
Rule 31 [Section 17231] below and there is no
good cause to deny the request. Thereafter, any
request to intervene by such employee(s), labor
union, or Joint Labor-Management Committee
shall be treated as a motion for permissive
participation as an interested Person under subpart
(d) of this Rule.
(d) Any other Person may move to participate as
an interested Person in a proceeding in which that
Person claims a substantial interest in the issues or
underlying controversy and in which that Person's
participation is likely to assist and not hinder or
protract the hearing and determination of the case
by the Hearing Officer and the Director.
Interested Persons who are permitted to
participate under this Rule shall not be regarded as
Parties to the proceeding for any purpose, but may
be provided notices and the opportunity to present
arguments under such terms as the Hearing
Officer deems appropriate.
(e) Rights to intervene or participate as an
interested party are only in accordance with this
Rule. Intervention or permissive participation
under this Rule shall not expand the scope of
issues under review nor shall it extend any rights
or interests which have been forfeited as a result
of an Affected Contractor or Subcontractor's own
failure to file a timely Request for Review. The
Hearing Officer may impose conditions on an
intervener's or other interested Person's
participation in the proceeding, including but not
limited to those conditions specified in
Government Code § 11440.50(c).
(f) No Person shall be required to seek
intervention in a review proceeding as a condition
for pursuing any other remedy available to that
Person for the enforcement of the prevailing wage
requirements of Division 2, Part 7, Chapter 1
(starting with section 1720) of the Labor Code.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
11440.50(c), Government Code; and sections
1720 et seg., 1741, 1742, and 1771.6, Labor Code.
17209. Representation at Hearing.
64
(a) A Party may appear in person or through an
authorized Representative, who need not be an
attorney at law; however, a Party shall use the
form Authorization for Representation by Non-
Attorney [8 CCR 17209(b) (New 1/15/02)] to
authorize representation by any non-attomey who
is not an owner, officer, or managing agent of that
Party.
(b) Upon formal notification that a Party is being
represented by a particular individual or firm,
service of subsequent notices in the matter shall
be made on the Representative, either in addition
to or instead of the Party, unless and until such
authorization is terminated or withdrawn by
further written notice. Service upon an authorized
Representative shall be effective for all purposes
and shall control the determination of any notice
period or the running of any time limit for the
performance of any acts, regardless of whether or
when such notice may also have been served
directly on the represented Party.
(c) An authorized Representative shall be deemed
to control all matters respecting the interests of the
represented Party in the proceedings.
(d) Parties and their Representatives shall have a
continuing duty to keep the appointed Hearing
Officer and all other Parties to the proceeding
informed of their current address and telephone
number.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
1742(b), Labor Code.
17210. Proper Method of Service.
(a) Unless a particular method of service is
specifically prescribed by statute or these Rules,
service may be made by: (1) personal delivery; (2)
priority or first class mailing postage prepaid
through the U. S. Postal Service; (3) any other
means authorized under Code of Civil Procedure
section 1013; or (4) if authorized by the Hearing
Officer pursuant to Rule 11 [Section 17211]
below, by facsimile or other electronic means.
(b) Service is complete at the time of personal
delivery or mailing, or at the time of transmission
as determined under Rule 11 [Section 17211]
below.
(c) Proof of service shall be filed with the
document and may be made by: (1) affidavit or
declaration of service; (2) written statement
endorsed upon the document served and signed by
the party making the statement; or (3) copy of
letter of transmittal.
(d) Service on a Party who has appeared through
an attorney or other Representative shall be made
upon such attorney or Representative.
(e) In each proceeding, the Hearing Officer shall
maintain an official address record which shall
contain the names and addresses of all Parties and
their Representatives,, agents, or attorneys of
record. Any change or substitution in such
information must be communicated promptly in
writing to the Hearing Officer. The official
address record may also include the names and
addresses of interested Persons who have been
permitted to participate under Rule 08(d) [Section
17208].
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
1013, Code of Civil Procedure and section
1742(b), Labor Code.
17211. Filing and Service of Documents by
Facsimile or Other Electronic Means.
(a) In individual cases the Hearing Officer may
authorize the filing and service of documents by
facsimile or by other electronic means, subject to
reasonable restrictions on the time of transmission
and the page length of any document or group of
documents that may be transmitted by facsimile or
other electronic means, and subject to any further
requirements on the use of cover sheets or the
subsequent filing and service of originals or hard
copies of documents as the Hearing Officer deems
appropriate. Filing and service by facsimile or
other electronic means shall not be authorized
under terms that substantially disadvantage any
Party appearing or participating in the proceeding
as a matter of right. A document transmitted by
facsimile or other electronic means shall not be
considered received until the next Working Day
following transmission unless it is transmitted on
a Working Day and the entire transmission is
completed by no later than 4:00 p.m. Pacific
Time.
(b) Filings and service by facsimile or other
electronic means shall not authorized or accepted
as a substitute for another method of service that
is required by statute or these Rules, unless the
Party served has expressly waived its right to be
served in the required manner.
65
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
1742(b), Labor Code.
17212. Administrative Adjudication Bill of
Rights.
(a) The provisions of the Administrative
Adjudication Bill of Rights found in Article 6 of
Chapter 4.5 of Title 2, Division 3, Part 1
(commencing with section 11425.10) of the
Government Code shall apply to these review
proceedings to the extent not inconsistent with a
state or federal statute, a federal regulation, or a
court decision which applies specifically to the
Department. The enumeration of certain rights in
these Rules may expand but shall not be construed
as limiting the same or similar provision of the
Administrative Adjudication Bill of Rights; nor
shall the enumeration of certain rights in these
Rules be construed as negating other statutory
rights not stated.
(b) Ex pane communications shall be permitted
between the appointed Hearing Officer and the
Director in accordance with Government Code
section 11430.80(b).
(c) The presentation or submission of any written
communication by a Party or other interested
Person during the course of a review proceeding
shall be governed by the requirements of
Government Code § 11440.60 (b) and (c).
(d) Unless otherwise indicated by express
reference within the body of one of these Rules,
the provisions of Chapter 5 of Title 2, Division 3,
Part 1 (commencing with section 11500) of the
Government Code shall not apply to these review
proceedings.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: sections
11415.20, 11425.10 et seq., and 11430.80(b),
Government Code; and section 1742(b), Labor
Code.
ARTICLE 2. ASSESSMENT OR NOTICE
AND REQUEST FOR REVIEW
17220. Service and Contents of Assessment or
Notice of Withholding of Contract Payments.
(a) An Assessment, a Notice of Withholding of
Contract Payments, or a notice assessing penalties
under Labor Code section 1776 shall be served on
the contractor and subcontractor, if applicable, by
first class and certified mail pursuant to the
requirements of Code of Civil Procedure section
1013. A copy of the notice shall also be served by
certified mail on any bonding company issuing a
bond that secures the payment of the wages
covered by the Assessment or Notice and to any
Surety on a bond, if the identities of such
companies are known or reasonably ascertainable.
The identity of any Surety issuing a bond for the
benefit of an Awarding Body as designated
obligee, shall be deemed "known or reasonably
ascertainable," and the Surety shall be deemed to
have received the notice required under this
subpart if sent to the address appearing on the face
of the bond.
(b) An Assessment or Notice of Withholding of
Contract Payments shall be in writing and shall
include the following information:
(1) a description of the nature of the violation and
basis for the Assessment or Notice; and
(2) the amount of wages, penalties, and
forfeitures due, including a specification of
amounts that have been or will be withheld from
available contract payments, as well as all
additional amounts that the Enforcing Agency has
determined are due, including the amount of any
liquidated damages that potentially may be
awarded under Labor Code section 1742.1.
(c) An Assessment or Notice of Withholding of
Contract Payments shall also include the
following information:
(1) the name and address of the office to whom a
Request for Review may be sent;
(2) information on the procedures for obtaining
review of the Assessment or Withholding of
Contract Payments;
(3) notice of the Opportunity to Request a
Settlement Meeting under Rule 21 [Section
1722i] below; and
(4) the following statement which shall appear in
bold or another type face that makes it stand out
from the other text:
Failure by a contractor or subcontractor to
submit a timely Request for Review will result
in a final order which shall be binding on the
contractor and subcontractor, and which shall
also be binding, with respect to the amount
due, lon a bonding company issuing a bond
that Isecures the payment of wages and a
surety on a bond. Labor Code section 1743.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
1013, Code of Civil Procedure, and sections 1741,
1742, 1743, 1771.6, and 1776, Labor Code.
66
17221. Opportunity for Early Settlement.
(a) The Affected Contractor or Subcontractor
may, within 30 days following the service of an
Assessment or Notice of Withholding of Contract
Payments, request a meeting with the Enforcing
Agency for the purpose of attempting to settle the
dispute regarding the Assessment or Notice.
(b) Upon receipt of a timely written request for a
settlement meeting, the Enforcing Agency shall
afford the Affected Contractor or Subcontractor a
reasonable opportunity to meet for such purpose.
The settlement meeting may be held in person or
by telephone and shall take place before
expiration of the 60-day limit for filing a Request
for Review under Rule 22 [Section 172221.
(c) Nothing herein shall preclude the Parties from
meeting or attempting to settle a dispute after
expiration of the time for making a request or
after the filing of a Request for Review.
(d) Neither the making or pendency of a request
for a settlement meeting, nor the fact that the
Parties have met or have failed or refused to meet
as required by this Rule shall serve to extend the
time for filing a Request for Review under Rule
22 [Section 172221 below.
(e) No evidence of anything said or any
admission made for the purpose of, in the course
of, or pursuant to, such a settlement meeting shall
be admissible or subject to discovery in any
administrative or civil proceeding. No writing
prepared for the purpose of, in the course of, or
pursuant to, such a settlement meeting, other than
a final settlement agreement, shall be admissible
or subject to discovery in any administrative or
civil proceeding.
NOTE: Authority cited: sections 55, 59, 1742(b)
and 1773.5, Labor Code. Reference: sections
1742, 1742. 1, and 1771.6, Labor Code.
17222. Filing of Request for Review.
(a) Any Request for Review of an Assessment or
of a Notice of Withholding of Contract Wages
shall be transmitted in writing to the Enforcing
Agency within 60 days after service of the
Assessment or Notice. Failure to request review
within 60 days shall result in the Assessment or
the Withholding of Contract Wages becoming
final and not subject to further review under these
Rules.
(b) A Request for Review shall be transmitted to
the office of the Enforcing Agency designated on
the Assessment or Notice of Withholding of
Contract Payments from which review is sought.
(c) A Request for Review shall be deemed filed
on the date of mailing, as determined by the U.S.
Postal Service postmark date on the envelope or
the overnight carrier's receipt in accordance with
Rule 03(b) [Section 17203(b)] above, or on the
date of receipt by the designated office of the
Enforcing Agency, whichever is earlier.
(d) An additional courtesy copy of the Request
for Review may be served on the Department by
mailing to the address specified in Rule 23
[Section 17223] below at any time on or after the
filing of the Request for Review with the
Enforcing Agency. The service of a courtesy
copy on the Department shall not be effective for
invoking the Director's review authority under
Labor Code section 1742; however, it may
determine the time within which the hearing shall
be commenced under Rule 41(a) [Section
17241(a)] below.
(e) A Request for Review either shall clearly
identify the Assessment or Notice from which
review is sought, including the date of the
Assessment or Notice, or it shall include a copy of
the Assessment or Notice as an attachment. A
Request for Review shall also set forth the basis
upon which the Assessment or Notice is being
contested. A Request for Review. shall be
liberally construed in favor of its sufficiency;
however, the Hearing Officer may require the
Party seeking review to provide a further
specification of the issues or claims being
contested and a specification of the basis for
contesting those matters.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: sections
1742, and 1771.6(a), Labor Code.
17223. Transmittal of Request for Review to
Department.
Within ten (10) days followings its receipt of a
Request for Review, the Enforcing Agency shall
transmit to the Office of the Director- Legal Unit,
the Request for Review and copies of the
Assessment or Notice of Withholding of Contract
Wages, any Audit Summary that accompanied the
Assessment or Notice, and a Proof of Service or
other document showing the name and address of
any bonding company or Surety entitled to notice
under Rule 20(a) [Section 17220(a)] above. The
67
Enforcing Agency shall transmit these items to the
following address.
Department of Industrial Relations
Office of the Director - Legal Unit
Attention: Lead Hearing Officer
P.O. Box 420603
San Francisco, CA 94142-0603
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: sections
1742(a) and 1771.6(a), Labor Code.
17224. Disclosure of Evidence.
(a) Within ten (10) days following its receipt of a
Request for Review, the Enforcing Agency shall
also notify the Affected Contractor or
Subcontractor of its opportunity and the
procedures for reviewing evidence to be utilized
by the Enforcing Agency at the hearing on the
Request for Review.
(b) An Enforcing Agency shall be deemed to
have provided the opportunity to review evidence
required by this Rule if it (1) gives the Affected
Contractor or Subcontractor the option, at the
Affected Contractor or Subcontractor's own
expense, to either (A) obtain copies of all such
evidence through a commercial copying service or
(B) inspect and copy such evidence at the office
of the Enforcing Agency during normal business
hours; or if (2) the Enforcing Agency at its own
expense forwards copies of all such evidence to
the Affected Contractor or Subcontractor.
(c) The evidence required to be provided under
this Rule shall include the identity of witnesses
whose testimony the Enforcing Agency intends to
present, either in person at the hearing or by
declaration or affidavit. This provision shall not
be construed as requiring the Enforcing Agency to
prepare or provide any separate listing of
witnesses whose identities are disclosed within the
written materials made available under subpart
(a).
(d) The Enforcing Agency shall make evidence
available for review as specified in subparts (a)
through (c) within 20 days of its receipt of the
Request for Review; provided that, this deadline
may be extended by written request or agreement
of the Affected Contractor or Subcontractor. The
Enforcing Agency's failure to make evidence
available for review as required by Labor Code
section 1742(b) and this Rule, shall preclude the
Enforcing Agency from introducing such
evidence in proceedings before the Hearing
Officer or the Director.
(e) ,This Rule shall not preclude the Enforcing
Agency from relying upon or presenting any
evidence first obtained after the initial disclosure
of evidence under subparts (a) through (d),
provided that, such evidence is promptly
disclosed to the Affected Contractor or
Subcontractor. This Rule also shall not preclude
the Enforcing Agency from presenting previously
undisclosed evidence to rebut new or collateral
claims raised by another Party in the proceeding.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: sections
1742(b) and 1771.6, Labor Code.
17225. Withdrawal of Request for Review;
Reinstatement.
(a) An Affected Contractor or Subcontractor may
withdraw a Request for Review by written
notification at any time before a decision is issued
or by oral motion on the hearing record. The
Hearing Officer may grant such withdrawal by
letter, order or decision served on the Parties.
(b) For good cause, a Request for Review so
dismissed may be reinstated by the Hearing
Officer or the Director upon a showing that the
withdrawal resulted from misinformation given by
the Enforcing Agency or otherwise from fraud or
coercion. A motion for reinstatement must be
filed within 60 days of service of the letter, order
or decision granting withdrawal of the Request for
Review or, in the event of fraud which could not
have' been suspected or discovered with the
exercise of reasonable diligence, within 60 days of
discovery of such fraud. The motion shall be
accompanied by a declaration containing a
statement that any facts therein are based upon the
personal knowledge of the declarant.
(c) Notwithstanding any application or showing
made under subpart (b) of this Rule, neither the
Hearing Officer nor the Director may reinstate
any Request for Review where the underlying
Assessment or Withholding of Contract Payments
has become final and entered as a courtjudgment.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 11773.5, Labor Code. Reference: sections
17421and 1771.6, Labor Code.
17226. Dismissal or Amendment of Assessment
or of Notice of Withholding of Contract
Payments.
68
(a) Upon motion to the appointed Hearing
Officer, an Enforcing Agency may dismiss or
amend an Assessment or Notice of Withholding
of Contract Payments as follows:
(1) An Assessment or Notice of Withholding may
be dismissed or amended to eliminate or reduce
all or part of any claim for wages, damages, or
penalties that has been satisfied or that is not
warranted under the facts and circumstances of
the case or to conform to an order of the Hearing
Officer or the Director.
(2) An Assessment or Notice of Withholding may
be amended to eliminate a claim for penalties as
to the affected contractor upon a determination
that the affected contractor is not liable for same
under either Labor Code section 1775(b)
[subcontractor's failure to pay prevailing rate] or
Labor Code section 1776 (g) [failure to comply
with request for certified payroll records].
(3) For good cause, an Assessment or Notice of
Withholding of Contract Payments may be
amended to revise or increase any claim for
wages, damages, or penalties based upon a
recomputation or the discovery of new evidence
subsequent to the issuance of the original
Assessment or Notice.
(b) The Hearing Officer shall grant any motion to
dismiss or amend an Assessment or Notice of
Withholding downward under subparts (a)(1) or
(a)(2) absent a showing that such dismissal or
amendment will result in the forfeiture of
substantial substantive rights of another Party to
the proceeding. The Hearing Officer may grant a
motion to amend an Assessment or Notice of
Withholding upward under subpart (a)(3) under
such terms as are just, including where
appropriate the extension of an additional
opportunity for early settlement under Rule
21[Section 17221]. Unless the Hearing Officer
determines otherwise, an amended Assessment or
Notice of Withholding shall be deemed fully
controverted without need for filing an additional
or amended Request for Review.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: sections
1742, 1771.6, 1775(b), and 1776(g), Labor Code.
17227. Early Disposition of Untimely
Assessment, Withholding, or Request for
Review.
(a) Upon the application of any Party or upon his
or her own motion, the appointed Hearing Officer
may issue an Order to Show Cause why an
Assessment, a Withholding of Contract Payments,
or a Request for Review should not be dismissed
as untimely under the relevant statute.
(b) An Order to Show Cause issued under subpart
(a) of this Rule shall be served on all Parties who
have appeared or been served with any prior
notice in the matter and shall provide the Parties
with at least 10 days to respond in writing to the
Order to Show Cause and an additional 5 days
following the service of such responses to reply to
any submission by any other Party. Evidence
submitted in support or opposition to an Order to
Show Cause shall be by affidavit or declaration
under penalty of perjury. There shall be no oral
hearing on an Order to Show Cause issued under
this Rule unless requested by a Party or by the
Hearing Officer.
(c) After the time for submitting responses and
replies to the Order to Show Cause has passed or
after the oral hearing, if any, the Hearing Officer
may do one of the following: (1) recommend that
the Director issue a decision setting aside the
Assessment or Withholding of Contract Payments
or dismissing the Request for Review as untimely
under the statute; (2) find the Assessment,
Withholding, or Request for Review timely and
direct that the matter proceed to hearing on the
merits; or (3) reserve the timeliness issue for
further consideration and determination in
connection with the hearing on the merits.
(d) A decision by the Director which sets asides
an Assessment or Withholding of Contract
Payments or which dismisses a Request for
Review as untimely shall be subject to
reconsideration and to judicial review in the same
manner as any other Final Order or Decision of
the Director. A determination by the Hearing
Officer that the Assessment, Withholding, or
Request for Review was timely or that the
timeliness issue should be reserved for further
consideration and determination in connection
with the hearing on the merits shall not be subject
to appeal or review except as part of any
reconsideration or appeal from the Decision of the
Director made after the hearing on the merits.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: sections
1741, 1742, 1771.5, and 1771.6, Labor Code.
17228. Finality of Assessment or of
Withholding of Contract Payments When No
69
Timely Request for Review is Filed; Authority
of Awarding Body to Disburse Withheld
Funds.
(a) Upon the failure of an Affected Contractor or
Subcontractor to file a timely Request for Review
under Labor Code section 1742(a) and Rule 22(a)
[Section 17222(a)] above, the Assessment or
Notice of Withholding of Contract Payments shall
become a "final order" as to the Affected
Contractor or Subcontractor that the Labor
Commissioner may certify and file with the
superior court in accordance with Labor Code
section 1742(d).
(b) Where an Assessment or Notice of
Withholding of Contract Payments has become
final as to at least one but not as to every Affected
Contractor or Subcontractor, the Awarding Body
shall continue to withhold and retain the amounts
required to satisfy any wages and penalties at
stake in a review proceeding initiated by any other
Affected Contractor or Subcontractor until there is
a final order in that proceeding that is no longer
subject to judicial review.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: sections
1727, 1742, and 1771.6, Labor Code.
17229. Finality of Notice of Withholding of
Contract Payments; Authority of Awarding
Body to Recover Additional Funds.
Where a Notice of Withholding of Contract
Payments seeks to recover wages, penalties, or
damages in excess of the amounts withheld from
available contract payments (see Rule 20(b)(2)
[Section 17220(b)(2)] above), an Awarding Body
may recover any excess amounts that become or
remain due when the Notice of Withholding of
Contract Payments has become final under Labor
Code section 1771.6. To recover the excess
amounts, the Awarding Body shall transmit to the
Labor Commissioner the Notice together with any
decision of the Director or court that has become
final and not subject to further review. The Labor
Commissioner in turn shall certify and file the
final order with the superior court in accordance
with Labor Code section 1742(d).
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: sections
1742(d), and 1771.6, Labor Code.
ARTICLE 3. PREHEARING PROCEDURES
17230. Scheduling of Hearing; Continuances
and Tolling.
(a) The appointed Hearing Officer shall establish
the place and time of the hearing on the merits,
giving due consideration to the needs of all Parties
and the statutory time limits for hearing and
deciding the matter. Parties are encouraged to
communicate scheduling needs to the Hearing
Officer and all other Parties at the earliest
opportunity. It shall not be a violation of Rule 07
[Section 17207]'s prohibition on ex parte
communications for the Hearing Officer or his or
her designee to communicate with Parties
individually for purposes of clearing dates and
times and proposing locations for the hearing.
The `Hearing Officer may also conduct a
preheating conference by telephone or any other
expeditious means for purposes of establishing the
time and place of the hearing.
(b) Once a hearing date is set, a request for a
continuance that is not joined in by all other
Parties or that is for more than 30 days will not be
granted absent a showing of extraordinary
circumstances, giving due regard to the potential
prejudice to other Parties in the case and other
Persons affected by the matter under review.
Absent an enforceable waiver (see subpart (d)
below), no continuance will be granted nor any
proceeding otherwise delayed if doing so is likely
to prevent the Hearing Officer from commencing
the hearing on the matter within the statutory time
limit.
(c) A request for a continuance that is for 30 days
or less and is joined by all Parties shall be granted
upon a showing of good cause. Notwithstanding
subpart (b) above, a unilateral request for a
continuance made by the Party who filed the
Request for Review shall be granted upon a
showing of good cause if the new date for
commencing the hearing is no more than 150 days
after the date of service of the Assessment or
Notice of Withholding of Contract Payments.
(d) If a Party makes or joins in any request that
would delay or otherwise extend the time for
hearing or deciding a review proceeding beyond
any prescribed time limit, such request shall also
be deemed a waiver by that Party of that time
limit.
(e) The time limits for hearing and deciding a
review proceeding shall also be deemed tolled (1)
when proceedings are suspended to seek judicial
enforcement of a subpoena or other order to
compel the attendance, testimony, or production
70
of evidence by a necessary witness; (2) when the
proceedings are stayed or enjoined by any court
order; (3) between the time that a proceeding is
dismissed and then ordered reinstated under Rule
25 [Section 172251 above; (4) upon the order of a
court reinstating or requiring rehearing of the
merits of a proceeding; or (5) during the pendency
of any other cause beyond the Director's direct
control (including but not limited to natural
disasters, temporary unavailability of a suitable
hearing facility, or absence of budget authority)
that prevents the Director or any appointed
Hearing Officer from carrying out his or her
responsibilities under these Rules.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
1742(b), Labor Code.
17231. Prehearing Conference.
(a) Upon the application of any Party or upon his
or her own motion, the appointed Hearing Officer
may conduct a preheating conference for any
purpose that may expedite or assist the
preparation of the matter for hearing or the
disposition of the Request for Review. The
prehearing conference may be conducted by
telephone or other means that is convenient to the
Hearing Officer and the Parties.
(b) The Hearing Officer shall provide reasonable
advance notice of any prehearing conference
conducted pursuant to this Rule. The Notice shall
advise the Parties of the matters which the
Hearing Officer intends to cover in the prehearing
conference, but the failure of the Notice to
enumerate some matter shall not preclude its
discussion or consideration at the conference.
(c) With or without a preheating conference, the
Hearing Officer may issue such procedural Orders
as are appropriate for the submission of evidence
or briefs and conduct of the hearing, consistent
with the substantial rights of the affected Parties.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
11511.5, Government Code, and section 1742(b),
Labor Code.
17232. Consolidation and Severance.
(a) The Hearing Officer may consolidate for
hearing and decision any number of proceedings
where the facts and circumstances are similar and
consolidation will result in conservation of time
and expense. Where the Hearing Officer proposes
to consolidate proceedings on his or her own
motion, the Parties shall be given reasonable
notice and an opportunity to object before
consolidation is ordered.
(b) The Hearing Officer may sever consolidated
proceedings for good cause.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
11507.3, Government Code, and section 1742(b),
Labor Code.
17233. Prehearing Motions; Cut Off Date.
(a) Any motion made in advance of the hearing
on the merits, any opposition thereto, and any
further reply shall be in writing and directed to the
appointed Hearing Officer. No particular format
shall be required; however, the following
information shall appear prominently on the first
page: (1) the case name (i.e., names of the
Parties); (2) any assigned case number; (3) the
name of the Hearing Officer to whom the paper is
being submitted; (4) the identity of the Party
submitting the paper; (5) the nature of the relief
sought; and (6) the scheduled date, if any, for the
hearing on the merits of the Request for Review.
The motion shall also include a Proof of Service,
as defined in Rule 10 [Section 17210] above,
showing that copies have been served on all other
Parties to the proceeding.
(b) Prehearing motions shall be served and filed
no later than 20 days prior to the hearing on the
merits of the Request for Review. Any opposition
shall be served and filed no later than 10 days
after service of the motion or at least 7 days prior
to the hearing on the merits, whichever is earlier.
The Hearing Officer may in his or her discretion
decide the motion in writing in advance of the
hearing on the merits or reserve the matter for
further consideration and determination at the
hearing on the merits.
(c) There shall be no right to a separate oral
hearing on any preheating motion, except in those
instances in which an oral hearing has been
specially requested by a Party or the Hearing
Officer and in which the enforcement or forfeiture
of a fundamental right is at stake. When the
Hearing Officer determines that such an oral
hearing is necessary or appropriate, it may be
conducted by telephone or other manner that is
convenient to the Parties.
(d) With the exception of timeliness challenges
under Rule 27 .[Section 17227], prehearing
motions which seek to dispose of a Request for
71
Review or any related claim or defense are
disfavored and ordinarily will not be considered
prior to the hearing on the merits.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
1742(b), Labor Code.
17234. Evidence by Affidavit or Declaration.
(a) At any time 20 or more days prior to
commencement of a hearing, a Party may serve
upon all other Parties a copy of any affidavit or
declaration which the proponent proposes to
introduce in evidence, together with a notice as
provided in subpart (b). Unless another Parry,
within 10 days after service of such notice,
delivers to the proponent a request to cross-
examine the affiant or declarant, the right to cross-
examine such affiant or declarant is waived and
the affidavit or declaration, if introduced in
evidence, shall be given the same effect as if the
affiant or declarant had testified in person. If an
opportunity to cross-examine an affiant or
declarant is not afforded after request therefore is
made as herein provided, the affidavit or
declaration may be introduced in evidence, but
shall be given only the same effect as other
hearsay evidence.
(b) The notice referred to in subpart (a) shall be
substantially in the following form with the
appropriate information inserted in the places
enclosed by brackets:
"The accompanying affidavit or declaration of
[name of affiant or declarant] will be introduced
as evidence at the hearing in [title and other
information identifying the proceeding]. [Name
of affiant or declarant] will not be called to testify
orally, and you will not be entitled to question the
affiant or declarant unless you notify [name of the
proponent, Representative, agent or attorney] at
[address] that you wish to cross-examine the
affiant or declarant. Your request must be mailed
or delivered to [name of proponent,
Representative, agent or attorney] on or before
[specify date at least 10 days after anticipated
date of service of this notice on the other
Parties]."
(c) If a timely request is made to cross-examine
an affiant or declarant under this Rule, the burden
of producing that witness at the hearing shall be
upon the proponent of the witness. If the
proponent fails to produce the witness, the
affidavit or declaration may be introduced in
evidence, but shall be given only the same effect
as other hearsay evidence under Rule 44=[Section
17244].
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: Rule 1613,
California Rules of Court; section 11514,
Government Code; and section 1742(b), Labor
Code.
17235. Subpoena and Subpoena Duces Tecum.
(a) Subpoenas and subpoenas duces tecum may
be issued for.attendance at a hearing and for the
production of documents at any reasonable time
and place or at a hearing.
(b) Subpoenas and subpoenas duces tecum shall
be issued by the Hearing Officer at the request of
a Party, or by the attorney of record for a Party, in
accordance with sections 1985 to 1985.6,
inclusive, of the Code of Civil Procedure. The
burden of serving a subpoena that has been issued
by the Hearing Officer shall be upon the Party
who requested the subpoena.
(c) Service of subpoenas and subpoenas duces
tecum, objections thereto, and mileage and
witness fees shall be governed by the provisions
of Government Code sections 11450.20 through
11450.40.
(d) Subpoenas and subpoenas duces tecum shall
be enforceable through the Contempt and
Monetary Sanctions provision set forth in Rule 47
[Section 17247] below. A Party aggrieved by the
failure or refusal of any witness to obey a
subpoena or subpoena duces tecum shall have the
burden of showing to the satisfaction of the
Hearing Officer that the subpoena or subpoena
duces tecum was properly issued and served and
that Ithe testimony or evidence sought was
necessary to prove or disprove a significant claim
or defense in the proceeding.
NOTE: Authority cited: 55, 59, 1742(b), and
17735, Labor Code. Reference: sections 1985
through 1988, Code of Civil Procedure; section
1563, Evidence Code; sections 11450.20 through
11455.30, Government Code; and section
1742(b), Labor Code.
17236. Written Notice to Party in Lieu of
Subpoena.
(a) In the case of the production of a Party of
record in the proceeding or of a Person for whose
benefit a proceeding is prosecuted or defended,
the service of a subpoena upon any such witness
is not required if written notice requesting the
72
witness to attend, with the time and place of the
hearing, is served on the attorney of the Party or
Person. For purposes of this Rule, a Party of
record in the proceeding or Person for whose
benefit a proceeding is prosecuted or defended
includes an officer, director, or managing agent of
any such Party or Person.
(b) Service of written notice to attend under this
Rule shall be made in the same manner and
subject to the same conditions provided in section
1987 of the Code of Civil Procedure for service of
written notice to attend in a civil action or
proceeding.
(c) The Hearing Officer shall have authority
under Rule 47 [Section 17247] below to sanction
a Parry who fails or refuses to comply with a
written notice to attend that meets the
requirements of this Rule and has been timely
served in accordance with section 1987 of the
Code of Civil Procedure. However, the Hearing
Officer may not initiate contempt proceedings
against the witness for failing to appear based
solely on non-compliance with a written notice to
attend served on the Party's attorney. A Party
seeking sanctions for another Party's failure or
refusal to comply with a written notice to attend
shall have the burden of showing to the
satisfaction of the Hearing Officer that the written
notice to attend was properly issued and timely
served and that the testimony or evidence sought
was necessary to prove or disprove a significant
claim or defense in the proceeding.
NOTE: Authority cited: 55, 59, 1742(b), and
1773.5, Labor Code. Reference: section 1987,
Code of Civil Procedure; sections 11450.50
through 11455.30, Government Code; and section
1742(b), Labor Code.
17237. Depositions and Other Discovery.
(a) There shall be no right to take oral depositions
or obtain any other form of discovery that is not
expressly authorized under these Rules.
(b) Oral depositions may be conducted only by
stipulation of all Parties to the proceedings or by
order of the appointed Hearing Officer upon a
showing of substantial good cause. Oral
depositions will be permitted only for purposes of
obtaining the testimony of witnesses who are
likely to be unavailable to testify at the hearing.
(c) Nothing in this Rule shall preclude the use of
deposition testimony or other evidence obtained in
separate proceedings, if such evidence is
otherwise relevant and admissible.
NOTE: Authority cited: 55, 59, 1742(b), and
1773.5, Labor Code. Reference: section 1987,
Code of Civil Procedure; sections 11450.50
through 11455.30, Government Code; and section
1742(b), Labor Code.
ARTICLE 4. HEARINGS
17240. Notice of Appointment of Hearing
Officer; Objections.
(a) Notice of the Appointment of a Hearing
Officer under Rule 04 [Section 172041 above shall
be provided to the Parties as soon as practicable
and no later than when the matter is noticed for a
preheating conference or hearing.
(b) The Director may appoint a different Hearing
Officer to conduct and hear the review or to
conduct and dispose of any preliminary or
procedural matter in a given case.
(c) A Party wishing to object to the appointment
of a particular Hearing Officer, including for any
one or more of the grounds specified in sections
11425.30 and 11425.40 of the Government Code
or section 1742(b) of the Labor Code, shall within
10 days after receiving notice of the appointment
and no later than the start of any hearing on the
merits, whichever is earlier, file a motion to
disqualify the appointed Hearing Officer together
with a supporting affidavit or declaration. The
motion shall be filed with the Chief Counsel of
the Office of the Director at the address indicated
in Rule 23 [Section 17223] above.
Notwithstanding the foregoing time limits, if a
Party subsequently discovers facts constituting
grounds for the disqualification of the appointed
Hearing Officer, including but not limited to that
the Hearing Officer has received a prohibited ex
parte communication in the pending case, the
motion shall be filed as soon as practicable after
the facts constituting grounds for disqualification
are discovered.
(d) Upon receipt of a motion to disqualify the
appointed Hearing Officer, the Director may: (1)
consider and decide the motion or appoint another
Hearing Officer to consider and decide the
motion, in which case the challenged Hearing
Officer shall first be given an opportunity to
respond to the motion, but no proceedings shall be
conducted by the challenged Hearing Officer until
the motion is determined; or (2) appoint another
73
Hearing Officer to hear the Request for Review,
in which case the motion shall be deemed moot.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code . Reference: sections
1703(c)(1), Code of Civil Procedure; sections
11425.30 and 11425.40, Government Code; and
section 1742(b), Labor Code.
17241. Time and Place of Hearing.
(a) A hearing on the merits of a timely Request
for Review shall be commenced within 90 days
after the date it is received by the Office of the
Director. The hearing shall be conducted at a
suitable location within the county where the
appointed Hearing Officer maintains his or her
regular office, unless the hearing is moved to a
different county in accordance with subpart (b)
below.
(b) Upon the agreement of the Parties or upon a
showing of good cause by either the Party who
filed the Request for Review or the Enforcing
Agency, the hearing shall be conducted at a
suitable location within either (1) the county
where a majority of the subject public works
employment was performed, or (2) any other
county that is proximate to or convenient for the
Parties and necessary witnesses.
(c) A suitable location under this section means
one that is open and accessible to members of the
public and which includes appropriate facilities
for the recording of testimony. Any facility that is
regularly used by any state agency or by the
Awarding Body for public hearings and that will
reasonably accommodate the anticipated number
of Parties and witnesses involved in the
proceeding, is presumed suitable in the absence of
a contrary showing. Parties seeking to change the
location of a hearing under subpart (b) shall make
reasonable efforts to identify, agree upon, and
arrange for the availability of a suitable location
within a county specified in subpart (b)(1) or
(b)(2).
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
11425.20, Government Code; and section
1742(b), Labor Code.
17242. Open Hearing; Confidential Evidence
and Proceedings; and Exclusion of Witnesses.
(a) Subject to the qualifications set forth below,
the hearing shall be open to the public. If all or
part of the hearing is conducted by telephone,
television, or other electronic means, the Hearing
Officer shall conduct the hearing from a location
where members of the public may be physically
present, and members of the public shall also have
a reasonable right of access to the hearing record
and any transcript of the proceedings.
(b) Notwithstanding the provisions of subpart (a),
the Hearing Officer may order closure of a
hearing or make other protective orders to the
extent necessary to: (1) preserve the
confidentiality of information that is privileged,
confidential, or otherwise protected by law; (2)
ensure a fair hearing in the circumstances of the
particular case; or (3) protect a minor witness or a
witness with a developmental disability from
intimidation or other harm, taking into account the
rights of all persons.
(c) Upon motion of any Party or upon his or her
own motion, the Hearing Officer may exclude
from the hearing room any witnesses not at the
time under examination. However, a Party to the
proceeding and the Party's Representative shall
not be excluded.
(d) This section does not apply to any preheating
or settlement conference.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section 777,
Evidence Code, section 11425.20, Government
Code, and section 1742(b), Labor Code.
17243. Conduct of Hearing.
(a) Testimony shall be taken only on oath or
affirmation under penalty of perjury.
(b) Every Party shall have the right to call and
examine witnesses; to introduce exhibits; to
question opposing witnesses on any matter
relevant to the issues even though that matter was
not covered in the direct examination; to impeach
any witness regardless of which Party first called
the witness to testify; and to rebut any opposing
evidence. A Party may be called by an opposing
Party and examined as if under cross-examination,
whether or not the Party called has testified or
intends to testify on his or her own behalf.
(c) The Hearing Officer may call and examine
any Patty or witness and may on his or her own
motion introduce exhibits.
(d) The Hearing Officer shall control the taking
of evidence and other course of proceedings in a
hearing and shall exercise that control in a manner
best suited to ascertain the facts and safeguard the
rights of the Parties. Prior to taking evidence, the
Hearing Officer shall define the issues and explain
74 !
the order in which evidence will be presented;
provided that, for good cause the Hearing Officer
later may vary the order of presentation as
circumstances warrant.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
11513, Government Code; and section 1742(b),
Labor Code.
17244. Evidence Rules; Hearsay.
(a) The hearing need not be conducted according
to technical rules relating to evidence and
witnesses. Any relevant evidence shall be
admitted if it is the sort of evidence on which
responsible persons are accustomed to rely in the
conduct of serious affairs, regardless of the
existence of any common law or statutory rule
which might make improper the admission of
such evidence over objection in civil actions.
(b) The rules of privilege shall be recognized to
the same extent and applied in the same manner as
in the courts of this state.
(c) The Hearing Officer may exclude evidence if
its probative value is substantially outweighed by
the probability that its admission will necessitate
undue consumption of time.
(d) Hearsay evidence is admissible but shall not
be sufficient in itself to support a finding unless it
either would be admissible over objection in a
civil action or no Party raises an objection to such
use. Unless previously waived, an objection or
argument that evidence is insufficient in itself to
support a finding because of its hearsay character
shall be timely if presented at any time before
submission of the case for decision.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
11513, Government Code; and section 1742(b),
Labor Code.
17245. Official Notice.
(a) A Hearing Officer may take official notice of
(1) the Director's General Prevailing Wage
Determinations, the Director's Precedential
Coverage Decisions, and wage data, studies, and
reports issued by the Division of Labor Statistics
and Research; (2) any other generally accepted
technical fact within the fields of labor and
employment that are regulated by the Director
under Divisions 1, 2, and 3 of the Labor Code;
and (3) any fact which either must or may be
judicially noticed by the courts of this state under
Evidence Code sections 451 and 452.
(b) The Parties participating in a hearing shall be
informed of those matters as to which official
notice is proposed to be taken and given a
reasonable opportunity to show why and the
extent to which official notice should or should
not be taken.
(c) The Hearing Officer or the Director shall state
in a decision, order, or on the record the matters as
to which official notice has been taken.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: sections 451,
452 and 455, Evidence Code; section 11515,
Government Code; and section 1742(b), Labor
Code.
17246. Failure to Appear; Relief from Default.
(a) Upon the failure of any Party to appear at a
duly noticed hearing, the Hearing Officer may
proceed in that Party's absence and may
recommend whatever decision is warranted by the
available evidence, including any lawful
inferences that can be drawn from an absence of
proof by the non-appearing Party.
(b) For good cause and under such terms as are
just, the appointed Hearing Officer or the Director
may relieve a Party from the effects of any failure
to appear and order that a review proceeding be
reinstated or reheard. A Party seeking relief from
non-appearance shall file a written motion at the
earliest opportunity and no later than 10 days
following a proceeding of which the Party had
actual notice. Such application shall be supported
by an affidavit or declaration based on the
personal knowledge of the declarant, and copies
of the application and any supporting materials
shall be served on all other Parties to the
proceeding. No application shall be granted
unless and until the other Parties have been
afforded a reasonable opportunity to make a
showing in opposition. An Order reinstating a
proceeding or granting a rehearing under this
section may be conditioned upon providing
reimbursement to the Department and the other
Parties for the costs associated with the prior non-
appearance.
(c) Notwithstanding any application or showing
made under subpart (b) of this Rule, neither the
Hearing Officer nor the Director may reinstate
any Request for Review where the underlying
Assessment or Withholding of Contract Payments
has become final and entered as a court judgment.
75
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section 473,
Code of Civil Procedure; and section 1742(b),
Labor Code.
17247. Contempt and Monetary Sanctions.
(a) If any Person in proceedings before an
appointed Hearing Officer disobeys or resists any
lawful order or refuses, without substantial
justification, to respond to a subpoena, subpoena
duces tecum, or refuses to take the oath or
affirmation as a witness or thereafter refuses to be
examined or is guilty of misconduct during a
hearing or so near the place thereof as to obstruct
the proceedings, or violates the prohibition against
ex parte communications under Rule 07 [Section
17207] above, the Hearing Officer may do any
one or more of the following: (1) certify the facts
to the Superior Court in and for the county where
the proceedings are held for contempt proceedings
pursuant to Government Code section 11455.20;
(2) exclude the Person from the hearing room; (3)
prohibit the Person from testifying or introducing
certain matters in evidence; and/or (4) establish
certain facts, claims, or defenses if the Person in
contempt is a Party.
(b) Either the appointed Hearing Officer by
separate order or the Director in his or her
decision may order a Party, the Party's authorized
Representative, or both, to pay reasonable
expenses, including attorney's fees, incurred by
another Party as a result of bad faith actions or
tactics that are frivolous or solely intended to
cause unnecessary delay as defined in section
128.5 of the Code of Civil Procedure. Such order
or the denial of such an order shall be subject to
judicial review in the same manner as a decision
of the Director on the merits. The order shall be
enforceable in the same manner as a money
judgment or by the contempt sanction.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
128.5, Code of Civil Procedure; sections 11455.10
through 11455.30, Government Code; and section
1742(b), Labor Code.
17248. Interpreters.
(a) Proceedings shall be conducted in the English
language. The notice advising a Party of the
hearing date shall also include notice of the
Party's right to request an interpreter for a Party
or witness who cannot speak or understand
English, or who can do so only with difficulty, or
who is deaf or hearing impaired as defined under
Evidence Code section 754.
(b) A request for an interpreter for a Party or
witness shall be submitted as soon as possible
after the requesting Party becomes aware of the
need for an interpreter and prior to the
commencement of the hearing. The request
should include information that (1) will enable the
Hearing Officer and Department to obtain an
interpreter with appropriate skills; and (2) will
assist the Hearing Officer in determining whether
the Department or the requesting Party should pay
for the cost of the interpreter.
(c) Upon receipt of a timely request, the Hearing
Officer shall direct the Department to provide an
interpreter and shall also decide whether the
Department or the requesting Party shall pay the
cost of the interpreter, based upon an equitable
consideration of all the circumstances, including
the requesting Party's ability to pay.
(d) A person is qualified to serve as an interpreter
if he.or she (1) is on the current State Personnel
Board List of Certified Administrative Hearing
Interpreters maintained pursuant to Government
Code section 11435.25; and (2) has also been
examined and determined by the Department to be
sufficiently knowledgeable of the terminology and
procedures generally used in these proceedings.
(e) In the event that a qualified interpreter under
subpart (d) is unavailable or if there are no
certified interpreters for the language in which
assistance is needed, the Hearing Officer may
qualify and appoint another interpreter to serve as
needed in a single hearing or case.
(f) Before appointment of an interpreter, the
Hearing Officer or a Party may conduct a brief
supplemental examination of the prospective
interpreter to see if that person has the
qualifications necessary to serve as an interpreter,
including whether he or she understands terms
and procedures generally used in these
proceedings, can explain those terms and
procedures in English and the other language
being used, and can interpret those terms and
procedures into the other language. An interpreter
shall not have had any prior substantive
involvement in the matter under review, and shall
disclose to the Hearing Officer and the Parties any
actual conflict of interest or appearance of
conflict. Any condition that interferes with the
objectivity of an interpreter constitutes a conflict
F
76
of interest. A conflict may exist if an interpreter
is an employee of, acquainted with, or related to a
Party or witness to the proceeding, or if an
interpreter has an interest in the outcome of the
proceeding.
(g) The Hearing Officer shall disqualify an
interpreter if the interpreter cannot understand and
interpret the terms and procedures used in the
hearing or prehearing conference, has disclosed
privileged or confidential communications, or has
engaged in conduct which, in the judgment of the
Hearing Officer, creates an appearance of bias,
prejudice, or partiality.
(h) Nothing in this section limits any further
rights extended by Evidence Code section 754 to a
Party or witness who is deaf or hard of hearing.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section 754,
Evidence Code; sections 11435.05 through
11435.65, and 68560 through 68566, Government
Code; and section 1742(b), Labor Code.
17249. Hearing Record; Recording of
Testimony and other Proceedings.
(a) The Hearing Officer and the Director shall
maintain an official record of all proceedings
conducted under these Rules. In the absence of a
determination under subpart (b) below, all
testimony and other proceedings at any hearing
shall be recorded by audiotape. Recorded
testimony or other proceedings need not be
transcribed unless requested for purposes of
further court review of a decision or order in the
same case.
(b) Upon the application of any Party or upon his
or her own motion, the Hearing Officer may
authorize the use of a certified court reporter,
videotape, of other appropriate means to record
the testimony and other proceedings. Any
application by a Party under this subpart shall be
made at a preheating conference or by preheating
motion filed no later than 10 days prior to the
scheduled date of hearing. Upon the granting of
any such application, it shall be the responsibility
of the Party or Parties who made the application
to procure and pay for the services of a qualified
person and any additional equipment needed to
record the testimony and proceedings by the
requested means. Ordinarily the granting of such
application will be conditioned on the applicant's
paying for certified copies of the transcript for the
official record and for the other Parties. The
failure of a requesting Party to comply with this
requirement shall not be cause for delaying the
hearing on the merits, but instead shall result in
the proceedings being tape recorded in accordance
with subpart (a).
(c) The Parties may, at their own expense, arrange
for the recording of testimony and other
proceedings through a different means other than
the one authorized by the Hearing Officer,
provided that it does not in any way interfere with
the Hearing Officer's control and conduct of the
proceedings, and further provided that, it shall not
be regarded as an official record for any purpose
absent a stipulation by all of the Parties or order of
the Hearing Officer.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
1742(b), Labor Code.
17250. Burdens of Proof on Wages and
Penalties.
(a) The Enforcing Agency has the burden of
coming forward with evidence that the Affected
Contractor or Subcontractor (1) was served with
an Assessment or Notice of Withholding of
Contract Payments in accordance with Rule 20
[Section 17220]; (2) was provided a reasonable
opportunity to review evidence to be utilized at
the hearing in accordance with Rule 24 [Section
17224]; and (3) that such evidence provides prima
facie support for the Assessment or Withholding
of Contract Payments.
(b) If the Enforcing Agency meets its initial
burden under (a), the Affected Contractor or
Subcontractor has the burden of proving that the
basis for the Civil Wage and Penalty Assessment
or for the Withholding of Contract Payments is
incorrect.
(c) With respect to any civil penalty established
under Labor Code section 1775, the Affected
Contractor or Subcontractor shall have the burden
of proving that the Labor Commissioner abused
his or her discretion in determining that a penalty
was due or in determining the amount of the
penalty.
(d) All burdens of proof and burdens of
producing evidence shall be construed in a
manner consistent with relevant sections of the
Evidence Code, and the quantum of proof
required to establish the existence or non-
existence of any fact shall be by a preponderance
77
of the evidence, unless a higher standard is
prescribed by law.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: sections 500,
502, and 550, Evidence Code; and sections
1742(b) and 1775, Labor Code.
17251. Liquidated Damages.
(a) With respect to any liquidated damages for
which an Affected Contractor, Subcontractor, or
Surety on a bond becomes liable under Labor
Code section 1742.1, the Enforcing Agency shall
have a further burden of coming forward with
evidence to show the amount of wages that
remained unpaid as of 60 days following the
service of the Assessment or Notice of
Withholding of Contract Payments. The Affected
Contractor or Subcontractor shall have the burden
of demonstrating that he or she had substantial
grounds for believing the Assessment or Notice to
be in error.
(b) To demonstrate "substantial grounds for
believing the Assessment or Notice to be in
error," the Affected Contractor or Subcontractor
must establish (1) that it had a reasonable
subjective belief that the Assessment or Notice
was in error; (2) that there is an objective basis in
law and fact for the claimed error; and (3) that the
claimed error is one that would have substantially
reduced or eliminated any duty to pay additional
wages under the Assessment or Notice.
NOTE: Authority cited: 55, 59, 1742(b), and
1773.5, Labor Code. Reference: sections 1742(b),
1742.1, and 1773.5, Labor Code.
17252. Oral Argument and Briefs.
(a) Parties may submit prehearing briefs of
reasonable length under such conditions as the
appointed Hearing Officer shall prescribe. Parties
shall also be permitted to present a closing oral
argument of reasonable length at or following the
conclusion of the hearing.
(b) There shall be no automatic right to file a
post-hearing brief. However, the Hearing Officer
may permit the Parties to submit written post-
hearing briefs, under such terms as are just. The
Hearing Officer shall have discretion to
determine, among other things, the length and
format of such briefs and whether they will be
filed simultaneously or on a staggered (opening,
response, and reply) basis.
(c) In addition to or as an alternative to post-
hearing briefs, the Hearing Officer may also
prepare proposed findings or a tentative decision
or may designate a Party to prepare proposed
findings and thereafter give the Parties a
reasonable opportunity) to present arguments in
support of or opposition to any proposed findings
or tentative decision prior to the issuance of a
decision by the Director under Rule 60 [Section
17260] below.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
1742(b), Labor Code.
17253. Conclusion of Hearing; Time for
Decision.
(a) The hearing shall be deemed concluded and
the matter submitted either upon the completion
of all testimony and post-hearing arguments or
upon the expiration of the last day for filing any
post-hearing brief or other authorized submission,
whichever is later. Thereafter, the Director shall
have 45 days within which to issue a written
decision affirming, modifying, or dismissing the
Assessment or the Withholding of Contract
Wages.
(b) For good cause, the Hearing Officer may
vacate the submission and reopen the hearing for
the purpose of receiving additional evidence or
argument, in which case the time for the Director
to issue a written decision shall run from the date
of resubmission.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
1742(b), Labor Code.
ARTICLE 6. DECISION OF THE
17260. Decision.
(a) The appointed Hearing Officer shall prepare a
recommended decision for the Director's review
and approval. The decision shall consist of a
notice of findings, findings, and an order, and
shall `be in writing and include a statement of the
factual and legal basis for the decision, consistent
with the requirements of Labor Code section 1742
and Government Code section 11425.50.
(b) A recommended decision shall have no status
or effect unless and until approved by the Director
and issued in accordance with subpart (c) below.
(c) A copy of the decision shall be served by first
class'mail on all Parties in accordance with the
requirements of Code of Civil Procedure section
1013. If a Party has appeared through an
authorized Representative, service shall be made
78
on that Party at the last known address on file with
the Enforcing Agency in addition to service on the
authorized Representative.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
1013, Code of Civil Procedure; section 11425.50,
Government Code; and section 1742(b), Labor
Code.
17261. Reconsideration.
(a) Upon the application of any Party or upon his
or her own motion, the Director may reconsider or
modify a decision issued under Rule 60 [Section
17260] above for the purpose of correcting any
error therein.
(b) The decision must be reconsidered or
modified within 15 days after its date of issuance
pursuant to Rule 60(c) [Section 17260(c)].
Thereafter, the decision may not be reconsidered
or modified, except that a clerical error may be
corrected at any time.
(c) The modified or reconsidered decision shall
be served on the Parties in the same manner as a
decision issued under Rule 60 [Section 17260].
(d) A Party is not required to apply for
reconsideration before seekingjudicial review of a
decision of the Director. An application for
reconsideration made by any Party shall not
extend the time for seeking judicial review
pursuant to Labor Code section 1742(c) unless the
Director issues a modified or reconsidered
decision within the 15-day time limit prescribed in
subpart (b) of this section.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
1742, Labor Code.
17262. Final Decision; Time for Seeking
Review.
(a) The decision of the Director issued pursuant
to Section Rule 60 [Section 17260] above shall be
the final decision of the Director from which any
Party may seek judicial review pursuant to the
provisions of Labor Code section 1742(c) and
Code of Civil Procedure section 1094.5; provided
however, that if the Director has issued a modified
decision pursuant to and within the 15-day limit of
the Director's reconsideration authority under
Section Rule 61 [Section 17261] above and Labor
Code section 1742(b), the right of review and time
for seeking such review shall extend from the date
of service of the modified decision rather than
from the original decision.
(b) The modification of a decision to correct a
clerical error after expiration of the 15-day time
limit on the Director's reconsideration authority
shall not extend the time for seeking judicial
review.
(c) The time for seeking judicial review shall be
determined from the date of service of the
decision of the Director under Code of Civil
Procedure section 1013, including any applicable
extension of time provided in that statute.
(d) Any petition seeking judicial review of a
decision under these Rules may be served (1)
upon the Director by serving the Office of the
Director - Legal Unit where the appointed
Hearing Officer who conducted the hearing on the
merits regularly maintains his or her office; and
(2) upon the Labor Commissioner (in cases in
which the Labor Commissioner was the Enforcing
Agency) by the serving the regular office of the
attorney who represented the Labor Commission
at the hearing on the merits. The intent of this
subpart is to authorize and designate a preferred
method for giving the Director and the Labor
Commissioner formal notice of a court action
seeking review of a decision of the Director under
these Rules; it does not preclude the use any other
service method authorized by law.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5. Reference: sections 1013 and 1094.5,
Code of Civil Procedure; and section 1742, Labor
Code.
17263. Preparation of Record for Review.
(a) Upon notice that a Party intends to seek
judicial review of a decision of the Director and
the payment of any required deposit, the
Department, under the direction of the appointed
Hearing Officer, shall immediately prepare a
hearing record consisting of all exhibits and other
papers and a transcript of all testimony which the
Party has designated for the inclusion in the
record on review.
(b) The Party who has requested the record or any
part thereof shall bear the cost of its preparation,
including but not necessarily limited to any court
reporter transcription fees and reasonable charges
for the copying, binding, certification, and mailing
of documents. Absent good cause, no record will
be released to a Party or filed with a court until
adequate funds to cover the cost of preparing the
record have been paid by the requesting Party to
the Department or to any third party designated to
79
prepare the record. However, upon notice that a
Party seeking judicial review has been granted in
forma pauperis status under California Rule of
Court 985, the Department shall bear the cost of
preparing and filing the record where necessary
for a proper review of the proceedings.
(c) The pendency of any request for the
Department to prepare a hearing record shall not
extend the time limits for filing a petition for
review under Labor Code section 1742(c) and
Code of Civil Procedure section 1094.5.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
1094.5, Code of Civil Procedure; California Rule
of Court 985; section 68511.3, Government Code;
and section 1742(c), Labor Code.
17264. Request for Participation by Director
in Judicial Review Proceeding.
Although the Director should be named as the
Respondent in any action seeking judicial review
of a final decision, the Director ordinarily will
rely upon the Parties to the hearing (as Petitioner
and Real Party in Interest) to litigate the
correctness of the final decision in the writ
proceeding and on any appeal. The Director may
participate actively in proceedings raising issues
that specifically concern the Director's authority
under the statutes and regulations governing the
payment of prevailing wages on public work
contracts, or the validity of related laws,
regulations, or the Director's decisions as to
public works coverage or generally applicable
prevailing wage rates. Any Party may request the
Director to file a response in the action by
including a separate written request with any court
pleading being served on the Director in
accordance with Rule 62(d) [Section 17262(d)].
Any such separate written request should specify
briefly what issues are raised by the petition that
extend beyond the facts of the case and warrant
the Director's participation.
NOTE: Authority cited: sections 55, 59, 1742(b),
and 1773.5, Labor Code. Reference: section
1094.5, Code of Civil Procedure and section
1742(c), Labor Code.
ARTICLE 7. TRANSITIONAL RULE.
17270. Applicability of these Rules to Notices
Issued Between April 1, 2001 and June 30,
2001.
(a) These Rules shall apply to any notice issued
by the Labor Commissioner or an Awarding Body
with respect to the withholding or forfeiture of
contract payments for unpaid wages or penalties
under the prevailing wage laws in effect prior to
July 1, 2001; provided that, the party seeking
review has not commenced a civil action with
respect to such notice under the provisions of
Labor Code sections 1731-1733 [repealed
effective July 1, 2001].
(b) An Affected Contractor or Subcontractor may
appeal any such notice served between April 1,
2001 and June 30, 2001 by filing a Request for
Review with the Enforcing Agency that issued the
notice, in the manner and form specified in Rule
22 [Section 17222] above. Any such Request for
Review shall be in writing and shall include a
statement indicating the date upon which the
contractor or subcontractor was served with the
notice of withholding or forfeiture.
(c) This Rule shall not extend the time available
to appeal the notice under the former law. A
Request for Review of a notice issued prior to
July 1, 2001 must be filed with the Enforcing
Agency within ninety (90) days after service of
the notice.
(d) A contractor or subcontractor who has sought
review of a notice issued prior to July 1, 2001 by
filing a court action under the repealed provisions
of Labor Code sections 1731-1733 on or after July
1, 2001, shall, if said action would have been
timely under those sections, be afforded the
opportunity to dismiss the action without
prejudice, after entering into a stipulation that the
proceeding be transferred to the Director for
hearing in accordance with these Rules. The
stipulation shall also provide that the time for
commencing a hearing under Rule 41 [Section
17241] shall not begin to run until the case has
been formally transferred to and received by the
Office of the Director.
(e) Any hearing request made pursuant to Labor
Code: section 1771.7 [repealed effective July 1,
2001] that has not been heard and decided by a
Hearing Officer prior to July 1, 2001 shall be
handled in accordance with these Rules.
NOTE: Authority cited: sections 55, 59, 1742(6),
and 1,773.5, Labor Code. Reference: section
1742(b), Labor Code.
[
80
II. IMPLEMENTATION PROGRAM
81
Reserved
82
IMPLEMENTATION PLAN
• Labor Compliance Officers receive construction contract awards/work schedules from
various City Departments including the Public Works & Engineering and Parks &
Recreation.
• Labor Compliance Officers participate in Pre-Construction Conference.
• Labor Compliance Officers conduct on-site interviews with contractors' employees and
include interview sheets in Project Wage Files.
• Labor Compliance Officers verify information from certified payroll records
• Labor Compliance Officers notify contractor in writing of any discrepancies with certified
payroll records.
• If clarification/correction is not received from the contractor within two (2) weeks, Labor
Compliance Officers will commence an investigation.
• Upon completion of the investigation, a report will be sent to the Department of Industrial
Relations with recommendations for penalties to be applied to the contractor.
• Labor Compliance Officers prepare and submit public works violation reports to Labor
Commissioner as required.
• Labor Compliance Officers receive Monthly Employment Report from the contractor and its
subcontractors; Program Manager maintains database of this information for year-end report.
• Labor Compliance Officers communicate on a regular basis with contractors, workers,
building and trade organizations and other community entities and in-service management to
City personnel.
• Labor Compliance Officers prepare and submit annual program reports to the Mayor with a
copy provided to City Council members and the Director of the Department of Industrial
Relations.
• Labor Compliance Program Administrator manages all facets and is the primary contact for
the City's Labor Compliance Program.
83
Reserved
84
III. OPERATIONAL MANUAL
85
Reserved
86
OPERATION MANUAL
Site Visitations
1. Safety is the paramount factor for any site visit to any City construction projects. Labor
Compliance Officers shall not enter any area that appears unsafe. Labor Compliance Officers
are expected to exercise reasonable caution at all times.
2. All authorized personnel visiting any City construction site are required to be properly
identified as a City representative by wearing visible picture ID's (badge) or identifying
themselves as such. Additionally, all authorized personnel are required to wear hard hats,
safety shoes and safety vests.
3. Authorized personnel shall visit all sites on a non-interference basis and take a minimum
amount of the workers' time for interview purposes.
4. Upon arrival at a site, the Labor Compliance Officer will check in at the site superintendent's
(contractor's) trailer prior to any interviewing. In the event there is not a construction trailer,
Labor Compliance Officers will check in at the site's administrative office. Labor
Compliance Officer will identify self and state the purpose of the visit. Labor Compliance
Officer will sign in if required to do so. If the site superintendent cites some reason that
denies access to the site, Labor Compliance Officer will promptly and politely remove self
and make a note of this occurrence and include it in a report for the Project Wage File.
5. Labor Compliance Officer will check to see the following are displayed in the contractor's
trailer:
• EEO Posters
• Posted prevailing wage sheets
• Sign-in Log
• Listing of subcontractors on site
If any of these items are not readily visible, Labor Compliance Officer will remind the
contractor these postings are part of the contractual requirements. On subsequent visits,
Labor Compliance Officer will make sure that these items are posted or the contractor will be
found to be in noncompliance.
6. There will be times when the site superintendent is somewhere on the site and/or there is no
contractor present in the trailer. Labor Compliance Officers should check in at the City's
Resident Engineer's trailer. The RE will also know which contractors are on site at that time.
If all trailers are empty or locked, Labor Compliance Officers should locate the site
superintendent or RE on the site prior to commencing interviews.
Interviewing
1. Once the Labor Compliance Officer has checked in with the site superintendent and obtained
access to the site, the Labor Compliance Officer should try to locate tradesperson working
87
in clusters; for instance, several painters, electricians, roofers, etc. working in one area. The
workers should be approached individually in a non-threatening, professional manner. The
Labor Compliance Officer should identify self, indicating they are a City representative
needing only a few seconds of time to ask some very generic questions to ensure receipt of
the proper rate of pay for the type of work performed. Again, no person's safety should be
endangered in conducting these interviews. For instance, the Labor Compliance Officer
should not insist that someone on a scaffold 40 feet in the air come down for an interview.
Employees should not be asked to form a line but should be allowed to continue working
until interviewed individually.
These interviews are random; two or three tradespersons for each subcontractor are more
than sufficient for one visit. Any persons missed are usually picked up on the next visit. If
only one tradesperson is at the site, then that person should be interviewed if possible. If the
Labor Compliance Officer is told the rest of a crew will be there in an hour, the Labor
Compliance Officer should not wait unless total site interviewing will take that length of
time. Thirty minutes of interviewing per site is typically sufficient, depending upon site size
and/or number of subcontractors present. A contractor tradesperson should also be
interviewed.
2. Using the Labor Compliance Site Visitation Interview form, each interviewee should be
asked the following: name, social security number, employer, title (trade), rate of pay and
task being performed at the time of interview.
3. If someone declines to speak with a Labor Compliance Officer, those wishes should be
respected. If someone asks if the interview is union-related, they should be told no. The City
works with both open and closed shop trades.
4. If a Labor Compliance Officer tries to interview someone who does not speak English and
communication in the appropriate language cannot occur, the Labor Compliance Officer
should try to locate a coworker who can interpret. If an entire crew is unable to speak English
and no interpreter is available this should be included in your report to the Program Manager.
5. If an interviewee refuses to disclose a social security number, those wishes should be
respected. However, interviewees should be assured that all information given is kept strictly
confidential. I
6. If an interviewee does not know their rate of pay (most tradespersons don't know), the Labor
Compliance Officer should ask for a guesstimate., If the response is, "whatever prevailing
wage is," that response should be indicated on the form.
7. If an interviewee indicates that he/she is an apprentice, the Labor Compliance Officer should
make sure to ask "What period?" These can be anywhere from 15c to l Om. If the interviewee is
not sure, ask how many years have been apprenticed in the specific trade and/or to
guesstimate and so indicate on the interview form.
8. Labor Compliance Officer's should ALWAYS thank each interviewee for their time.
88
9. Labor Compliance Officer's are there to collect information only, not to dictate how to
perform jobs. Should a Labor Compliance Officer witness a potentially unsafe or
unwarranted condition, the Labor Compliance Officer should contact the site inspector or job
superintendent immediately and make a note on the site visitation log of what was observed.
Upon return to the office, Labor Compliance Officers should report findings to the Program
Manager.
Reporting
1. All original interview forms conducted by Labor Compliance Officers shall be included in
Project Wage Files no later than the end of each workweek.
89
Reserved 1
90
IV. PROCEDURES
91
Reserved
r
tlI
9
92
PROCEDURES
Certified Payroll Verification Procedures
1. Various City departments including the Public Works & Engineering Department and Parks
& Recreation Department will provide the Labor Compliance Officers with construction
work schedules.
2. Upon receipt of certified payroll reports from prime and subcontractors once a week, Labor
Compliance Officers will compare information from employee interviews, Daily Diaries and
Monthly Employee Reports to the contractors certified payroll reports and the prevailing
wage schedule.
3. Labor Compliance Officers will compare name and social security number with trade
classification listed.
4. Labor Compliance Officers will ensure prevailing wage listed is correct for the classification
listed using the prevailing wage schedule and job descriptions.
5. Labor Compliance Officers will check for employment of apprentices, correct rate of pay for
period of apprenticeship and proper hourly ratio to journey workers.
6. Labor Compliance Officers will contact the contractor in writing and send by certified mail
any inaccuracies in the verification of its certified payroll.
7. If clarification/correction is not received within two weeks from the contractor, the Labor
Compliance Officer will commence an investigation.
8. Upon completion of an investigation, a report will be sent to the Department of Industrial
Relations with recommendations for penalties to be applied to the contractor.
9. Labor Compliance Officers will retain all original interview forms and annotate databases as
applicable.
Site Monitor Procedures
1. Labor Compliance Officers will receive construction site work schedules from project
managers or resident engineers.
2. Labor Compliance Officers will check in with site administrative office/site superintendent.
3. Labor Compliance Officers will conduct interviews with workers utilizing the Labor
Compliance Site Visitation Interview form.
4. Labor Compliance Officers will note on the form any infractions observed while conducting
an interview.
93
5. Interview forms will be included in Project Wage Files.
6. Any infractions observed by the Labor Compliance Officer will be reported to the Labor
Compliance Program Administrator. p
1
94
A
C
V. FORMS
95
Reserved
96
FORMS
• Prevailing Wage Contractor Handout
• California Code of Regulations Checklist [8 CCR §16421] - Appendix A
• Apprentices on Public Works
• Excerpts from California Labor Code Relating to Apprentices on Public Works (DAS 10)
• Summary of Apprentice Requirements
• Public Works Contract Award Information (DAS 140)
• Training Funds Contributions (CAC 2)
• Contractor Fringe Benefit Statement
• Monthly Employment Report (sample)
• DIR Public Works Payroll Reporting Form A-1-131 [8 CCR §16401]
• Prevailing Wage Determination (sample)
• Labor Compliance Site Visitation Interview Form
• Site Visitation Log (sample)
• Pre-Award Letter (sample)
• Post-Award Letter (sample)
• First Request for Certified Payrolls Letter (sample)
• Missing Documents List (sample)
• Certified Payroll Worksheet (sample)
• Certified Payroll Correction Letter (sample)
• Request for Approval of Forfeiture Amount
• Audit Record Worksheets [8 CA Code of Regulations § 16432] - Appendix B
o Public Works Investigation Worksheet
o Public Works Audit Worksheet
o Prevailing Wage Determination Summary
• • Single Project Labor Compliance Review and Enforcement Report Form [8 CCR
§ 16434] - Appendix C
• Statement of Non-Performance
• Public Works Affidavit
• Pre-Construction Meeting - Labor Compliance Responsibilities & Requirements
• Forms Submittal Schedule
97
Reserved
98
PREVAILING WAGE
CONTRACTOR HANDOUT
8838 E. Valley Boulevard
Rosemead, California 91770
Phone: (626) 569-2158 Fax: (626) 307-9218
THE PUBLIC WORKS REQUIREMENTS ARE:
(A) the appropriate number of apprentices is on the
job site, as set forth in Labor Code Section 1777.5.
(B) worker's compensation coverage, as set forth in
Labor Code Sections 1860 and 1861.
(C) keep accurate records of the work performed on
the public works project, as set forth in Labor Code
Section 1812.
(D) inspection of payroll records pursuant to Labor
Code Section 1776, and as set forth in 8 CCR Section
16400(e).
(E) other requirements imposed by law.
(5) Withhold monies. See Labor Code Section 1727.
(6) Ensure that public works projects are not split or
separated into smaller work orders or projects for the
purpose of evading the applicable provisions of
Labor Code Section 1771.
(7) Deny the right to bid on public work contracts to
contractors or subcontractors who have violated
public work laws, as set forth in Labor Code Section
1777.7.
(8) Not permit workers on public works to work more
than eight hours a day or 40 hours in any one
calendar week, unless compensated at not less than
time and a half as set forth in Labor Code Section
1815. Exception: If the prevailing wage
determination requires a higher rate of pay for
overtime work than is required under Labor Code
Section 1815, then that higher overtime rate must be
paid [as specified in 16200(a)(3)(F)].
(9) Not take or receive any portion of the workers'
wages or accept a fee in connection with a public
works project, as set forth in Labor Code Sections
1778 and 1779.
(10) Comply with those requirements as specified in
Labor Code Sections 1776(8), 1777.5, 1810, 1813,
and 1860.
THE CONTRACTOR AND SUBCONTRACTOR
SHALL:
(1) Pay not less than the prevailing wage to all
workers, as defined in CCR's section 16000(a), and
as set forth in Labor Code Sections 1771 and 1774;
(2) Comply with the provisions of Labor Code
Sections 1773.5, 1775, and 1777.5 regarding public
works job sites;
(3) Provide workers' compensation coverage as set
forth in Labor Code Section 1861;
(4) Comply with Labor Code Sections 1778 and 1779
regarding receiving a portion of wages or acceptance
of a fee;
(5) Maintain and make available for inspection
payroll records, as set forth in Labor Code Section
1776;
(6) Pay workers overtime pay, as set forth in Labor
Code Section 1815 or as provided in the collective
bargaining agreement adopted by the Director as set
forth in 8 CCR Section 16200(a)(3); and
(7) Comply with Section 16101 of these regulations
regarding discrimination.
(8) Be subject to provisions of Labor Code Section
1777.7, which specifies the penalties, imposed on a
contractor who willfully fails to comply with
provisions of Section 1777.5.
(9) Comply with those requirements as specified in
Labor Code Sections 1810 and 1813.
(10) Comply with other requirements imposed by
law.
APPRENTICE TRAINING
SEE LABOR CODE SECTION 1777.5 (e)
(e) Prior to commencing work on a contract for
public works, every contractor shall submit contract
award information to an applicable apprenticeship
program that can supply apprentices to the site of the
public work. The information submitted shall include
an estimate of journeyman hours to be performed
under the contract, the number of apprentices
proposed to be employed, and the approximate dates
the apprentices would be employed. A copy of this
information shall also be submitted to the awarding
body if requested by the awarding body. Within 60
days after concluding work on the contract, each
contractor and subcontractor shall submit to the
awarding body, if requested, and to the
apprenticeship program a verified statement of the
journeyman and apprentice hours performed on the
contract. The information under this subdivision shall
be public. The apprenticeship programs shall retain
this information for 12 months.
APPRENTICE TRAINING CONTRIBUTION
REQUIREMENTS
SEE CALIFORNIA CODE OF REGULATIONS:
TITLE 8, ARTICLE 4,
16200(G) Wage rates, training contributions and
apprenticeship contributions.
Apprenticeship rates shall be determined by the
Director of Industrial Relations using apprentice
wage standards set forth in the collective bargaining
agreement and/or approved by the California
Apprenticeship Council. A contractor or
subcontractor on a public works contract must pay
99
training fund contributions or apprenticeship
contributions in one of the following manners:
1. into the appropriate craft apprenticeship program
in the area of the site of the public work; or
2. (if the trust fund is unable to accept such
contributions) an equivalent amount shall be paid to
the California Apprenticeship Council (CAC)
administered by DAS.
3. If neither of the above will accept the funds, cash
pay shall be as provided for in CCR's section
16200(a)(3)(I).
SEE CALIFORNIA CODE OF REGULATIONS:
TITLE 8, ARTICLE 10, SECTION 230.2 §230.2.
Payment of Apprenticeship Training
Contributions to the Council.
(a) Contractors who are neither required nor wish to
make apprenticeship training contributions to the
applicable local training trust fund shall make their
training contributions to the Council. Contractors
may refer to the Director of the Department of
Industrial Relations applicable prevailing wage
determination for the amount owed for each hour of
work performed by journeymen and apprentices in
each appremiceable occupation.
(b) Training contributions to the Council are due and
payable on the 15th day of each month for work
performed during the preceding month.
(c) Training contributions to the Council shall be paid
by check and shall be accompanied by a completed
CAC-2 Form, Training Fund Contributions, (Rev.
10/91), or the following information:
(1) The name, address, and telephone number of the
contractor making the contribution.
(2) The contractor's license number.
(3) The name and address of the public agency that
awarded the contract.
(4) The jobsite location, including the county where
the work was performed.
(5) The contract or project number.
(6) The time period covered by the enclosed
contributions.
(7) The contribution rate and total hours worked by
apprenticeable occupation.
CERTIFYING PERSON
SEE CALIFORNIA CODE OF REGULATIONS:
TITLE 8, GROUP 3, ARTICLE 1,16000
DEFINITIONS.
A person with the authority to affirm under penalty of
perjury that the records provided, depict truly, fully
and correctly the type of work performed, the hours
worked, days worked and amounts paid.
CHANGES TO PREVAILING RATE AFTER
AWARD
SEE LABOR CODE SECTION: 1773.6
No effect once the contract notice to bidders is
published.
1773.6. If during any quarterly period the Director of
Industrial Relations shall determine that there has
been a change in any prevailing rate of per diem
wages in any locality he shall make such change
available to the awarding body and his determination
shall be final. Such determination by the Director of
Industrial Relations shall not be effective as to any
contract for which the notice to bidders has been
published. Exceptions; classifications marked as a
double asterisks.
CREDITS, FOR FRINGE BENEFIT
PAYMENTS
SEE CALIFORNIA CODE OF REGULATIONS:
TITLE 8, GROUP 3, ARTICLE 4,
16200(1) Credit Available For Actual Payment of
Fringe Benefit Costs up to the Prevailing Amount.
The contractor obligated to pay the full prevailing
rate of per diem wages may take credit for amounts
up to the total of all fringe benefit amounts listed as
prevailing in the appropriate wage determination.
This credit may be taken only as to amounts, which
are actual payments under Employer Payments
Section 16000(l)-(3). In the event the total of
Employer Payments by a contractor for the fringe
benefits listed as prevailing is less than the aggregate
amount set out as prevailing in the wage
determination, the contractor must pay the difference
directly to the employee. No amount of credit for
payments over the aggregate amount of employer
payments shall be taken nor shall any credit decrease
the amount of direct payment of hourly wages of
those amounts found to be prevailing for straight time
or overtime wages.
And memo from the division of industrial
relations dated 11-15-90.
THE RULE:
The contractor can pay amounts for individual
benefits different than the state shows in the wage
reports so long as it is not more than the total amount
permitted for all benefits. Any contractor paid
amount less than the total benefit requirements listed
in the state wage reports must be paid to the
em +loyee.
EMPLOYEES SUBJECT TO PREVAILING
WAGES
SEE LABOR CODE SECTION 1771, 1772 & 1776
City of Rosemead General Conditions require all
workers on the project shall be paid the wage of the
trade they are most closely related to. This includes:
anyone on site and off site even at remote
manufacturing acilities.
100
1771. Except for public works projects of one
thousand dollars ($1,000) or less, not less than the
general prevailing rate of per diem wages for work of
a similar character in the locality in which the public
work is performed, and not less than the general
prevailing rate of per diem wages for holiday and
overtime work fixed as provided in this chapter, shall
be paid to all workers employed on public works.
1772. Workers employed by contractors or
subcontractors in the execution of any contract for
public work are deemed to be employed upon public
work.
1776. (a) Each contractor and subcontractor shall
keep an accurate payroll record, showing the name,
address, social security number, work classification,
and straight time and overtime hours worked each
day and week, and the actual per diem wages paid to
each journeyman, apprentice, worker, or other
employee employed by him or her in connection with
the public work.
EMPLOYER PAYMENTS
SEE CALIFORNIA CODE OF REGULATIONS:
TITLE 8, ARTICLE I, SECTION 16000
DEFINITIONS
(1) The rate of contribution irrevocably made by a
contractor or subcontractor to a trustee or to a third
person pursuant to a fund, plan, or program for the
benefit of employees, their families and dependents,
or retirees;
(2) The rate of costs to the contractor or
subcontractor which may be reasonably anticipated in
providing benefits to employees, their families and
dependents or to retirees pursuant to an enforceable
commitment or agreement to carry out a financially
responsible plan or program which was
communicated in writing to the workers affected; and
(3) The rate of contribution irrevocably made by the
contractor or subcontractor for apprenticeship or
other training programs authorized by Section 3071
and/or 3093 of the Labor Code.
FRINGE BENEFIT PAYMENT
REQUIREMENTS
SEE CALIFORNIA CODE OF REGULATIONS:
TITLE 8, GROUP 3, ARTICLE 1, 16000
DEFINITIONS
All fringe benefits must be irrevocably paid to an
authorized fund or to the employee. No unpaid
amounts are allowed.
FRINGE BENEFITS INCLUDE
CALIFORNIA CODE OF REGULATIONS: TITLE
8, ARTICLE 1, SECTION 16000. DEFINITIONS
3) The prevailing rate of employer payments for any
or all programs or benefits for employees, their
families and dependents, and retirees which are of the
types enumerated below:
(A) medical and hospital care, prescription drugs,
dental care, vision care, diagnostic services, and other
health and welfare benefits;
(B) retirement plan benefits;
(C) vacations and holidays with pay, or cash
payments in lieu thereof;
(D) compensation for injuries or illnesses resulting
from occupational activity;
(E) life, accidental death and dismemberment, and
disability or sickness and accident insurance;
(F) supplemental unemployment benefits;
(G) thrift, security savings, supplemental trust, and
beneficial trust funds otherwise designated, provided
all of the money except that used for reasonable
administrative expenses is returned to the employees;
(H) occupational health and safety research, safety
training, monitoring job hazards, and the like, as
specified in the applicable collective bargaining
agreement;
(I) See definition of "Employer Payments," (3).
(J) other bonafide benefits for employees, their
families and dependents, or retirees as the Director
may determine; and
(4) travel time and subsistence pay as provided for in
Labor Code Section 1773.8.
FRINGE BENEFITS DO NOT INCLUDE
CALIFORNIA CODE OF REGULATIONS: TITLE
8, ARTICLE 1, SECTION 16000. DEFINITIONS
(b) The term "general prevailing rate of per diem
wages" does not include any employer payments for:
(1) Job related expenses other than travel time and
subsistence pay;
(2) Contract administration, operation of hiring halls,
grievance processing, or similar purposes except for
those amounts specifically earmarked and actually
used for administration of those types of employee or
retiree benefit plans enumerated above;
(3) Union, organizational, professional or other dues
except as they may be included in and withheld from
the basic taxable hourly wage rate;
(4) Industry or trade promotion;
(5) Political contributions or activities;
(6) Any benefit for employees, their families and
dependents, or retirees including any benefit
enumerated above where the contractor or
subcontractor is required by Federal, State, or local
law to provide such benefit; or
(7) Such other payments as the Director may
determine to exclude. Interested Party. When used
with reference to a particular prevailing wage
determination made by the Director, includes:
101
PAYROLL RECORDS INCLUDE
CALIFORNIA CODE OF REGULATIONS: TITLE
8, ARTICLE t, SECTION 16000. DEFINITIONS
All time cards, cancelled checks, cash receipts, trust
fund forms, books, documents, schedules, forms,
reports, receipts or other evidences which reflect job
assignments, work schedules by days and hours, and
the disbursement by way of cash, check, or in
whatever form or manner, of funds to a person(s) by
job classification and/or skill pursuant to a public
works project.
PERSONS REQUIRED TO RECEIVE
PREVAILING WAGES
SEE LABOR CODE SECTIONS:
1771. Prevailing wages shall be paid to all workers
employed on public works.
1774. The contractor to whom the contract is
awarded, and any subcontractor under him, shall pay
not less than the specified prevailing rates of wages
to all workmen employed in the execution of the
contract. City of Rosemead General Conditions
require all workers not in a prevailing wage
classification to be paid the wage most closely related
to the craft or trade they are involved with.
WITHHOLDING PAYMENTS,
JUSTIFICATION
SEE LABOR CODE SECTION: 1727 &
1771.5(b),(5) SEE CALIFORNIA CODE OF
REGULATIONS: TITLE 8, ARTICLE 5, SECTION
16435(a) "Withhold" means to cease payments by the
awarding body, or others who pay on its behalf, or
agents, to the general contractor. Where the violation
is by a subcontractor, the general contractor shall be
notified of the nature of the violation and reference
made to its rights under Labor Code Section 1729.
(b) "Contracts." Except as otherwise provided by
agreement, only contracts under a single master
contract, or contracts entered into as stages of a
single project, may be the subject of withholding.
(c) "Delinquent payroll records" means those not
submitted on the date set in the contract.
(d) "Inadequate payroll records" are any one of the
following:
(1) A record lacking the information required by
Labor Code Section 1776;
(2) A record which contains the required information
but not certified, or certified by someone not an agent
of the contractor or subcontractor;
(3) A record remaining uncorrected for one payroll
period, after the awarding body has given the
contractor notice of inaccuracies detected by audit or
record review. Provided, however, that prompt
correction will stop any duty to withhold if such
inaccuracies do not amount to 1 percent of the entire
Certified Weekly Payroll in dollar value and do not
affect more than half the persons listed as workers
employed on that Certified Weekly Payroll, as
defined in Labor Code Section 1776 and Title 8 CCR
Section 16401.
(e) The withholding of contract payments when
payroll records are delinquent or inadequate is
required by Labor Code Section 1771.5 (b)(5), and it
does not require the prior approval of the Labor
Commissioner. The Awarding Body shall only
withhold those payments due or estimated to be due
to the contractor or subcontractor whose payroll
records are delinquent or inadequate, plus any
additional amount that the Labor Compliance
Program has reasonable cause to believe may be
needed to cover a back wage and penalty assessment
against the contractor or subcontractor whose payroll
records are delinquent or inadequate; provided that a
contractor shall be required in turn to cease all
payments to a subcontractor whose payroll records
are delinquent or inadequate until the Labor
Compliance program provides notice that the
subcontractor has cured the delinquency or
deficiency.
(0 When contract payments are withheld under this
section, the Labor Compliance Program shall provide
the contractor and subcontractor, if applicable, with
immediate written notice that includes all of the
following:
(1) a statement that payments are being withheld due
to delinquent or inadequate payroll records, and that
identifies what records are missing or states why
records that have been submitted are deemed
inadequate;
(2) specifies the amount being withheld; and
(3) informs the contractor or subcontractor of the
right to request an expedited hearing to review the
withholding of contract payments under Labor Code
Section 1742, limited to the issue of whether the
records are delinquent or inadequate or the Labor
Compliance Program has exceeded its authority
under this section.
(g) No contract payments shall be withheld solely on
the basis of delinquent or inadequate payroll records
after the required records have been produced.
(h) In addition to withholding contract payments
based on delinquent or inadequate payroll records,
penalties shall be assessed under Labor Code Section
1776(g) for failure to timely comply with a written
request for certified payroll records. The assessment
of penalties under Labor Code Section 1776(8) does
require the prior approval of the Labor Commissioner
under section 16436 of these regulations.
102
DIRECTOR OF INDUSTRIAL RELATIONS
PRECEDENTIAL DECISIONS WHICH REQUIRE
PREVAILING WAGES:
Decision 92-036: stands for the payment of out of
state workers if they are working on California
"Public Works"
Decision 93-019: stands for the payment of truck
drivers removing, delivering or relocating material on
a "Public Works"
Decision 94-017: stands for the payment of waste
processors off site if the waste is exclusively from a
"Public Works"
COURT DECISIONS:
Standard Traffic Services v. Department of
Transportation (case 132667) Shasta: partners are
due prevailing wages if working on a "Public Works"
103
Reserved
104
CALIFORNIA CODE OF REGULATIONS
APPENDIX A: Checklist of Labor Law Requirements to review at pre job conference, Section 16421, with suggested
Certification by subcontractor.
The Federal and State Labor law requirements applicable to the contract are composed of but not limited to the following items:
Project
Contractor's Signatu
-
Initials of City's
Initials of awarded
Labor Compliance
Contractor's
Representative
Representative
(1) The contractor's duty to pay prevailing wages under Labor Code
Section 1770 et seq., should the project exceed the exemption amounts;
(2) The contractor's duty to employ registered apprentices on the public works
project under Labor Code Section 1777.5;
(3) The penalties for failure to pay prevailing wages (for non-exempt projects) and
employ apprentices including forfeitures and debarment under Labor Code
Sections 1775 and 1777.7;
(4) The requirement to keep and submit copies upon request of certified payroll
records under Labor Code Section 1776:, and penalties for failure to do so
under Labor Code Section 1776(g);
(5) The prohibition against employment discrimination under Labor Code
Section 1777.6, the Government Code, and Title VII of the
f 1964
Ci
il Ri
h
A
;
v
g
ts
ct o
(6) The prohibition against accepting or extracting kickbacks from employee
wages under Labor Code Section 1778;
(7) The prohibition against accepting fees for registering any person for public
work under Labor Code Section 1779; or for filing work orders on public
works under Labor Code Section 1780;
(8) The requirement to list all subcontractors under Public Contract Code
Section 4100 et seg.;
(9) The requirement to be properly licensed and to require all subcontractors to be
properly licensed and the penalty for employing workers while unlicensed
under Labor Code Section 1021 and under the California Contractors License
Law, found at Business and Professions Code Section 7000 et seq.;
(10) The prohibition against unfair competition under Business and Professions
Code Sections 17200-17208;
(I1) The requirement that the contractor be properly insured for Workers
Compensation under Labor Code Section 1861;
(12) The requirement that the contractor abide by the Occupational, Safety and
Health laws and regulations that apply to the particular construction project;
(13) The federal prohibition against hiring undocumented workers, and the
requirement to secure proof of eligibility/citizenship from all workers;
(14) The requirement to provide itemized wage statements to employees under
Labor Code section 226.
105
Reserved
106
CITY OF ROSEMEAD LABOR COMPLIANCE PROGRAM
CALIFORNIA CODE OF REGULATIONS CHECKLIST
After the City awards a public works contract and prior to commencement of work on that
contract a mandatory Pre-Construction Conference shall be conducted by the Labor Compliance
Officer with the contractor and those subcontractors listed in its bid documents. The following is
a listing of labor law requirements applicable to a public works contract:
1. Payment of Prevailing Wage Rates
a. All workers on the project are to be paid not less than the specified general prevailing
wage rate by the contractor and its subcontractors unless subject to exemption.
b. The contractor is responsible for complying with all applicable general prevailing
wage rates for trades workers and any rate changes which occur during term of the
contract.
c. Prevailing wage rates and rate changes must be posted at the job site for workers to
view.
d. The Labor Compliance Officer will provide contractors with copies of prevailing
wage rates upon request as well as copies of any revisions to prevailing rate wages
received from the Department of Labor.
2. Apprentices It is the duty of the contractor and subcontractors to employ registered
apprentices on public works projects.
3. Penalties
a. Penalties including forfeitures and debarment shall be imposed for contractor/subcontractor
failure to pay prevailing wages for nonexempt projects and for failure to employ apprentices.
b. Penalties shall also be imposed for failure to provide certified payroll records and to provide
them by the date requested, failure to provide Monthly Employment Reports by the date
requested, failure to pay workers for work in excess of eight (8) hrs/day for forty (40)
hrs/week and for failure to be a properly licensed contractor or subcontractor.
4. Certified Payroll Records
a. Contractors and subcontractors are required to keep accurate payroll records which reflect the
name, address, social security number and work classification of each employee, the straight
time and overtime hours worked each day and each week, the fringe benefits and the actual
per diem wages paid to each journeyperson, apprentice, worker or other employee hired in
connection with a public works project.
b. Employee payroll records shall be certified and shall be available for inspection at all
reasonable hours at the principal office of the contractor/subcontractor or shall be furnished to
any employee or to his or her authorized representative on request.
c. Contractors and subcontractors shall maintain their certified payrolls on a weekly basis and
shall submit said payrolls to the Labor Compliance Officer when requested to do so but no
less often than once a month. Contractors are responsible for submittal of their payrolls and
those of their respective subcontractors as one package. In the event that no work has been
performed during a given week the Certified Payroll Record shall be annotated with the
words "No Work" for that week.
107
5. Nondiscrimination in Employment-Equal Opportunity All contractors and subcontractors are
required to avoid discrimination in employment and shall make good faith efforts to comply with the
City's goal in hiring Disabled Veteran Business Enterprises.
6. Kickback Prohibited Contractors and subcontractors are prohibited from accepting or extracting
"kickbacks" from employee wages.
7. Acceptance of Fees Prohibited Contractors and subcontractors are prohibited from exacting any
type of fee for registering individuals for public work or for filling work orders on public works
contracts.
8. Listing of Subcontractors Contractors are required to list all subcontractors hired to perform work
on public works project when that work is equivalent to more than one-half of one percent (.5%) of
the total effort.
9. Proper Licensing All contractors and subcontractors are required to be properly licensed.
10. Unfair Competition Contractors and subcontractors are prohibited from engaging in unfair
competition.
11. Workers' Compensation Insurance All contractors and subcontractors are required to be insured
against liability for workers compensation or to undertake self-insurance.
12. OSHA Contractors and subcontractors are required to comply with the Occupational, Safety and
Health laws and regulations applicable to the particular public works project.
13. Undocumented Workers Contractors and subcontractors are required to follow federal regulations
prohibiting the hiring of undocumented workers and requiring proof of eligibility/citizenship from all
workers.
14. Itemized Wage Statements Contractors and subcontractors are required to observe Labor Code
section 226 and provide itemized wage statements to employees.
In accordance with Federal and State laws and with City policy and contract documents, the
undersigned contractor herein certifies that it will comply with the foregoing labor law requirements
and fully understands that failure to comply with these requirements will subject it to the penalties
cited herein. The contractor also herein certifies that it has been provided with a copy of the City
Labor Compliance Program Package which includes:
1. Labor Law Requirements Checklist (included herein)
2. Applicable General Prevailing Wage Rate Determinations
3. Blank Certified Payroll Record forms
4. Fringe Benefit Statements
5. Blank Monthly Employment Report forms
6. State Apprenticeship Requirements (DAS-140)
7. Copy of Labor Code relating to Public Works and Public Agencies (Part 7, Chapter 1,
Sections 1720-1861)
108
4.
I
It is the contractor's responsibility to provide copies of the City's Labor Compliance Program
Package to all listed subcontractors and to any substitutes subcontractors.
Contractor
of Contractor Authorized Representative
Date
Name/Title of City of Rosemead Labor Compliance Representative
109
Reserved
110
DIVISION OF APPRENTICESHIP STANDARDS
APPRENTICESHIP REQUIREMENTS
STATE OF CALIFORNIA
DEPARTMENT OF INDUSTRIAL RELATIONS
DIVISION OF APPRENTICESHIP STANDARDS
28 CIVIC CENTER PLAZA, ROOM 525
SANTA ANA, CA 92701
TO ALL PUBLIC WORKS CONTRACTORS
Congratulations on having been awarded a public works project.
The Division of Apprenticeship Standards wishes to bring to your attention your
responsibilities under California Labor Code Section 1777.5 Apprentices on Public Works.
(Excerpts from California Labor Code relating to apprentices on public works. DAS-10 is
attached).
Compliance with California Labor Code Section 1777.5 requires all public works contractors
and subcontractors to:
• Submit contract award information within 10 days of contract award, to the applicable
Joint Apprenticeship Committee, which shall include an estimate of Journeyman hours to
be performed under the contract, the number of apprentices to be employed, and the
approximate dates the apprentices will be employed. This information may be submitted
on the attached form. DAS 140.
• Employ apprentices on the public work in a ratio to journeymen of no less than one hour
of apprentices work for every five hours of labor performed by a journeyman.
• Pay the apprentice rate on public works projects only to those apprentices who are
registered as defined in Labor Code Section 3077.
• Contribute to the training fund in the amount identified in the Prevailing Wage Rate
publication for journeymen and apprentices. Contractors who choose not to contribute to
the local training trust fund must make their contribution to the California Apprenticeship
Council (CAC) at P.O. Box 420603, San Francisco, CA 94142.
Training fund contributions to the CAC are due and payable on the 15th day of each month for
work performed during the preceding month.
Training fund contributions to the CRC shall be paid by check and shall be accompanied by a
completed form CAC-2 (attached).
Failure to comply with the provisions of the Labor Code Section 1777.5 may result in the loss
of the right to bid on all public works projects for a period of one to three years and the
imposition of a civil penalty of $100.00 for each calendar day of noncompliance. Contractors
should provide a copy of this material to each subcontractor.
If the Division of Apprenticeship Standards can be of assistance to you, please contact our
office at (714) 558-4126.
111
Reserved
112
DIVISION OF APPRENTICESHIP STANDARDS
APPRENTICESIIP REQUIREMENTS
STATE OF CALIFORNIA - DEPARTMENT OF INDUSTRIAL RELATIONS - DIVISION OF APPRENTICESHIP STANDARDS
EXERPTS FROM THE CALFORNIA LABOR CODE RELATING TO APPRENTICES ON PUBLIC WORKS
Chapter 1 of Division 2
APPRENTICES ON PUBLIC WORKS
1773.3. An awarding agency whose public works contract falls within the
jurisdiction of Section 17775 shall, within five days of the award, send a
copy of the award to the Division of Apprenticeship Standards. When
specifically requested by a local joint apprenticeship committee, the division
shall notify the local joint apprenticeship committee regarding all such
awards applicable to the joint apprenticeship conamace making the request.
Within five days of a finding of any discrepancy regarding the mtio of
apprentices to joumeymen, pursuant to the certificated fixed number of
apprentices to journeymen, the awarding agency shall notify the Division of
Apprenticeship Standards.
1776. (a) Each contractor and subcontractor shall keep accurate payroll
records, showing the name, address, social security number, work
classification, straight time and overtime hours worked each day and week
and the actual per diem wages paid to each journeyman, apprentice, worker,
or other employee employed by him or her in connection with the public
work. Each payroll record shall contain or be verified by a written
declaration that it is made under penalty of perjury, staling both of the
following:
(1) The information contained in the payroll record is tore and correct.
(2) The employer has complied with the requirements of Sections 1771,
1811, and 1815 for any work performed by his or her employees on the
public works project.
(b) The payroll records enumerated under subdivision (a) shall be certified
and shall be available for inspection at all reasonable hours at the principal
office of the contractor on the following basis:
(1) A certified copy of an employee's payroll record shall be made available
for inspection or furnished to the employee or his or her authorized
representative on request.
(2) A certified copy of all payroll records enumerated in subdivision (a)
shall be made available for inspection or famished upon request to a
representative of the body awarding the contract, the Division of Labor
Standards Enforcement, and the Division of Apprenticeship Standards of the
Department of Industrial Relations.
(3) A certified copy of all payroll records enumerated in subdivision (a)
shall be made available upon request by the public for inspection or for
copies thereof. However, a request by the public shall be made through
either the body awarding the contract, the Division of Apprenticeship
Standards, or the Division of Labor Standards Enforcement. If the requested
payroll records have not been provided pursuant to paragraph (2), the
requesting party shall, prior to bring provided the records, reimburse the
costs of preparation by the contractor, subcontractors, and the entity through
which the request was made. The public shall not be given access to the
records at are principal office of the contractor.
(c) The certified payroll records shall be on forms provided by the Division
of Labor Standards Enforcement or shall contain the same information as the
forms provided by the division.
(d) A contractor or subcontractor shall file a certified copy of the records
enumerated in subdivision (a) with the entity that requested the records
within 10 days after receipt of a written request.
(e) Any copy of records made available for inspection as copies and
furnished upon request to the public or any public agency by the awarding
body, the Division of Apprenticeship Standards, or the Division of Labor
Standards Enforcement shall be marked or obliterated in a manner so as to
prevent disclosure of an individual's name, address, and social security
number. The name and address of the contractor awarded the contract or the
subcontractor perforating the contract shall not be marked or obliterated.
(f) The contractor shall inform the body awarding the contract of the
location of the records enumerated under subdivision (a), including the street
address, city and county, and shall, within five working days, provide a
notice of a change of location and address.
(g) The contractor or subcontractor shall have 10 days in which to comply
subsequent to receipt of a written notice requesting are records enumerated in
subdivision (a). In the event that the contractor or subcontractor fails to
comply within the 10-day period, he or she shall, as a penalty to the state or
political subdivision on whose behalf the contract is made or awarded, forfeit
twenty-five dollars ($25) for each calendar day, or portion thereof, for each
worker, until strict compliance is effectuated. Upon the request of the
Division of Apprenticeship Standards or the Division of Labor Standards
Enforcement, these penalties shall be withheld from progress payments then
due. A contractor is not subject to a penalty assessment pursuant to Nis
section due to the failure of a subcontractor to comply with this section.
(h) The body awarding the contract shall cause to be inserted in the contract
stipulations to effectuate this section.
F) The director shall adopt rules consistent with the California Public
Records Act, (Chapter 3.5 (commencing with Section 6250), Division 7,
Title 1, Government Code) and the Information Practices Act of 1977, (Title
1.8 (commencing with Section 1798), Part 4, Division 3, Civil Code)
governing the release of these records, including the establishment of
reasonable fees to be charged for reproducing copies of records required by
this section.
O This section shall remain in effect only until January 1, 2003, and as of
that date is repealed, unless a later enacted statute, that is enacted before
January 1, 2003, deletes or extends that date.
1777.5. (a) Nothing in this chapter shall prevent the employment of properly
registered apprentices upon public works.
(b) Every apprentice employed upon public works shall 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
(c) Only apprenuces, as defined in Section 3077, who are in training under
apprenticeship standards that have been approved by the Chief of the
Division of Apprenticeship Standards and who are parties to written
apprentice agreements under Chapter 4 (commencing with Section 3070) of
Division 3 are eligible to be employed at the apprentice wage rate on public
works. The employment and training of each apprentice shall be in
accordance with either (1) the apprenticeship standards and apprentice
agreements under which he or she is training or (2) the ales and regulations
of the California Apprenticeship Council.
(d) When the contractor to whom the contract is awarded by the state or any
political subdivision, in performing any of the work under the contract,
employs workers in any apprenticeable craft or trade, the contractor shall
employ apprentices in at least the ratio set forth in this section and may apply
to any apprenticeship program in the craft or trade that can provide
apprentices to the site of the public work for a certificate approving the
contractor under the apprenticeship standards for the employment and
training of apprentices in the area or industry affected. However, approval or
denial of the apprenticeship program shall be subject to review by the
Administrator of Apprenticeship. The apprenticeship program or programs,
upon approving the contractor, shall arrange for the dispatch of apprentices
to the contractor. A contactor covered by m apprenticeship program's
standards shall not be required to submit any additional application in order
to include additional public works contacts under that the program.
"App -muceable craft or trade," as used in this section, means a craft or trade
detemuned as an apprenticeable occupation in accordance with rules and
regulations prescribed by the California Apprenticeship Council. As used in
this section, "contactor" includes any subcontractor under a contractor who
performs any public works not excluded by subdivision (o).
(e) Prior to commencing work on a contract for public works, every
contractor shall submit contract award information to an applicable
apprenticeship program that can supply apprentices to the site of the public
work. The information submitted shall include an estimate of journeyman
hours to be performed under the contract, the number of apprentices
proposed to be employed, and the approximate dates the apprentices would
be employed. A copy of this information shall also be submitted to the
awarding body if requested by the awarding body. Within 60 days after
concluding work on the contract, each contractor and subcontractor shall
submit to the awarding body, if requested, and to the apprenticeship program
a verified statement of the journeyman and apprentice hours performed on
the contract The information under this subdivision shall be public. The
apprenticeship programs shall retain this information for 12 months.
(f) The apprenticeship program that can supply apprentices to the area of
the site of the public work shall ensure equal employment and affirmative
action in apprenticeship for women and minorities.
113
DIVISION OF APPRENTICESHIP STANDARDS
APPRENTICESHIP REQUIREMENTS
(g) The ratio of work performed by apprentices to journeymen employed in
a particular craft or made on the public work may be no higher than the ratio
stipulated in the apprenticeship standards under which the apprenticeship
program operates where the contractor agrees to be bound by those
standards, but, except as otherwise provided in this section, in no case shall
the ratio be less than one hour of apprentice work for every five hours of
journeyman work
(h) This ratio of apprentice work to journeyman work shall apply during
any day or portion of a day when any joumeyman is employed at the jobsite
and shall be computed on the basis of the hours worked during the day by
journeymen so employed. Any work performed by a joumeyman in excess
of eight hours per day car 40 hours per week shall not be used to calculate the
min. The contractor shall employ apprentices for the number of hours
computed as above before the end of the contract or, in the case of a
subcontractor, before the end of the subcontract. However, the contractor
shall endeavor, to the greatest extent possible, to employ apprentices during
the same time period that the journeymen in the same craft or trade are
employed at the jobsite. Where an hourly apprenticeship ratio is not feasible
for a particular craft or trade, the Division of Apprenticeship Standards, upon
application of an apprenticeship program, may order a minimum ratio of not
less than one apprentice for each five journeymen in a craft or trade
classification.
(i) A contractor covered by this section that has agreed to be covered by an
apprenticeship program's standards upon the issuance of the approval
certificate, or that has been previously approved for an apprenticeship
program in the craft or trade, shall employ the number of apprentices or the
ratio of apprentices to journeymen stipulated in the applicable apprenticeship
standards, but in no event less than the 1-to-5 ratio required by subdivision
(g)
0) Upon proper showing by a contractor that he or she employs apprentices
in a particular craft or trade in the state on all of his or her contracts on an
annual average of not less than one hour of apprentice work for every five
hours of labor performed by journeymen, the Division of Apprenticeship
Standards may grant a certificate exempting the contractor from the l-to-5
hourly ratio, as set forth in this section for that craft or trade.
(k) An apprenticeship program has the discretion to grant to a participating
contractor or contractor association a certificate, which shall be subject to the
approval of the Administrator of Apprenticeship, exempting the contractor
from the l-to-5 ratio set forth in this section when it finds that any one of the
following conditions is met:
(1) Unemployment for the previous three-month period in the area exceeds
an average of 15 percent.
(2) The number of apprentices in training in the area exceeds a ratio of 1 to
5.
(3) There is a showing that the apprenticeable craft or trade is replacing at
least one-thirtieth of its joumeymen annually through apprenticeship training,
either on a statewide basis or on a local basis.
(4) Assignment of an apprentice to any work performed under a public
works contract would create a condition that would jeopardize his or her fife
or the life, safety, or property of fellow employees or the public at large, or
the specific task to which the apprentice is to be assigned is of a nature that
training cannot be provided by a journeyman.
(1) When an exemption is granted pursuant to subdivision (k) to an
organization that represents contractors in a specific trade from the 1-to-5
ratio on a local or statewide basis, the member contractors will not be
required to submit individual applications for approval to local joint
apprenticeship continuities, if they are already covered by the local
apprenticeship standards.
(m) A contractor to whom a contract is awarded, who, in performing any of
the work under the contract, employs journeymen or apprentices in any
apprenticeable craft or trade shall contribute to the California Apprenticeship
Council the same amount that the director determines is the prevailing
amount of apprenticeship training contributions in the area of the public
works site. A contractor may take as a credit for payments to the council any
amounts paid by the contractor to an approved apprenticeship program that
can supply apprentices to the site of the public works project The contractor
may add the amount of the contributions in computing his or her bid for the
contract. At the end of each fiscal year the California Apprenticeship
Council shall make grants to each apprenticeship program in proportion to
the number of hours of training provided by the program for which the
program did not receive contributions, weighted by the regular rate of
contribution for the program. These grants shall be made from funds
collected by the California Apprenticesltip Council during the fiscal year
pursuant to this subdivision from contractors that employed registered
apprentices but did not contribute to an approved apprenticeship program.
All these funds received during the fiscal year shall be distributed as grants.
(n) The body awarding the contract shall cause to be inserted in the contract
stipulations to effectuate this section. The stipulations shall fix the
responsibility of compliance with this section for all apprenticmble
occupations with the prime contractor.
(o) This section does not apply to contracts of general contractors or to
contracts of specialty contractors not bidding for work through a general or
prime contractor when the contracts of general contractors or those specialty
contractors involve less than thirty thousand dollars ($30,000) or 20 working
days.
(p) All decisions of an apprenticeship program under this section arc subject
to Section 3081.
1777.6. It shall be unlawful for an employer or a labor union to refuse to
accept otherwise qualified employees as registered apprentices on any public
works, on the ground of the race, religious creed, color, national origin.
ancestry, sex, or age, except as provided in Section 3077, of such employee.
1777.7. (a) A contractor or subcontractor that knowingly violates Section
1777.5 shall forfeit as a civil penalty an amount not exceeding one hundred
dollars (5100) for each full calendar day of noncompliance. The amount of
this penalty shall be based on consideration whether the violation was a good
faith mistake due to inadvertence. A contractor or subcontractor that
knowingly commits a second or subsequent violation of Section 1777.5
within a three-year period, where the noncompliance results in
apprenticeship training not being provided as required by this chapter, shall
forfeit as a civil penalty the sum of not more than three hundred dollars
($300) for each full calendar day of noncompliance. Notwithstanding
Section 1727, upon receipt of a detemdnation that a civil penalty has been
imposed the awarding body shall withhold the amount of the civil penalty
from contract progress payments then due or to become due.
(b) (1) In the event a contractor or subcontractor is determined by the
Administrator of Apprenticeship to have knowingly violated any provision of
Section 1777.5, the Administrator shall deny to the contractor or
subcontractor, both individually and in the time of the business entity under
which the contractor or subcontractor is doing business, the right to bid on or
receive any public works contract for a period of up to one year for the first
violation and for a period of up to three years for a second or subsequent
violation. Each period of debarment shall ran from the date the detertination
of noncompliance by the Administrator of Apprenticeship.
(2) An affected contractor or subcontractor may obtain a review of the
debarment or civil penalty by transmitting a written request to the office of
the Administrator within 30 days after service of the order of debarment or
civil penalty. If the Administrator receives no request for review within 30
days after service, the order of debarment or civil penalty shall become final
for the period authorized.
(3) Within 20 days of the timely receipt of a request for hearing, the
Administrator shall provide the contractor or subcontractor the opportunity to
review, any evidence the Administrator may offer at the hearing. The
Adrnidistrator shall also promptly disclose to the contractor or subcontractor
any nonprivileged documents obtained after the 20-day time limit.
(4) Within 90 days of the timely receipt of the a request for hearing, a
hearing shall be commenced before an impartial hearing officer designated
by the Administrator and possessing the qualifications of an administrative
law judge pursuant to Section 11502 of the Govemment Code. The
contractor or subcontractor shall have the burden of showing compliance
with Section 1777.5. The derision to debar shall be reviewed by a hearing
officer or court only for abuse of discretion.
(5) Within 45 days of the conclusion of the hearing, the hearing officer shall
issue a written decision affirming. modifying, or dismissing the debarment or
civil penalty. The decision shall contain a notice of findings, findings, and
an order. This decision shall be deemed the final decision of the
Administrator and shall be served on all parties and the awarding body
pursuant to Section 1013 of the Code of Civil Procedureby first-class mail at
the last known address of the party on file with the Administrator. Within 15
days of issuance of the decision, the hearing officer may reconsider or
modify the decision to correct an error, except that a clerical error may be
corrected at any time.
(6) An affected contractor or subcontractor may obtain review of the final
decision of the Administrator by filing a petition for a writ of mandate to the
appropriate superior court pursuant to Section 1094.5 of the Cade of Civil
Procedure within 45 days after service of the final decision to debar or to
assess a civil penalty. If no petition for a writ of mandate is fled within 45
days after service of the final decision, the order shall become final. If the
petitioner claims that the findings are not supported by the evidence, abuse of
discretion is established if the court detemtines that the findings are not
supported by substantial evidence in fight of the entire record.
114
DIVISION OF APPRENTICESHIP STANDARDS
APPRENTICESHIP REQUIREMENTS
(7) The Administrator may file a certified copy of a final order with the
clerk of the superior court in any county in which the affected contractor or
subcontractor has property or has or had a place of business.
(c) If a subcontractor is found to have violated Section 1777.5, the prime
contractor of the project is not liable for any penalties under subdivision (a),
unless the prime contractor had knowledge of the subcontractors failure to
comply with the provisions of Section 1777.5 or unless the prime convector
fails to comply with any of the following requirements:
(1) The contract executed between the contractor and the subcontractor or
the performance of work on the public works project shall include a copy of
the provisions of Sections 1771, 1775. 1776, 1777.5. 1813, and 1815.
(2) The contractor shall continually monitor a subcontractors use of
apprentices required to be employed on the public works project pursuant to
subdivision (d) of Section 1777.5, including, but not limited to, periodic
review of the certified payroll of the subcontractor.
(3) Upon becoming aware of a failure of the subcontractor to employ the
required number of apprentices, the contractor shall take corrective action,
including, but not limited to, retaining funds due the subcontractor for work
performed on the public works project until the failure is corrected.
(4) prior to making the final payment to the subcontractor for work
performed on the public works project, the contractor shall obtain an
affidavit signed under penalty of perjury from the subcontractor that the
subcontractor has employed the required number of apprentices on the public
works project.
(d) In lieu of the penalty provided for in subdivision (a) or (b), the director
may for a first-time violation and with the concurrence of the apprenticeship
program, order the contractor or subcontractor to provide apprentice
employment equivalent to the work hours that would have been provided for
apprentices during the period of noncompliance.
(e) Any funds withheld by the awarding body pursuant to this section shall
be deposited in the General Fund if the awarding body is a state entity, or in
the equivalent fund of an awarding body if the awarding body is an entity
other than the state.
(f) The interpretation and enforcement of Section 1777.5 and this section
shall be in accordance with the roles and procedures of the California
Apprenticeship Council.
115
Reserved
116
DIVISION OF APPRENTICESHIP STANDARDS
APPRENTICESHIP REQUIREMENTS
Division of Apprenticeship Standards
APPRENTICES ON PULIC WORKS
SUMMARY OF REQUIREMENTS
Compliance with California Labor Code Section 1777.5 requires all public works contractors and subcontractors
to:
• Submit contract award information to the applicable joint apprenticeship committee, including an estimate
of the journeyman hours to be performed under the contract, the number of apprentices to be employed, and
the approximate dates the apprentices will be employed.
The contract award information shall be in writing, and shall be provided to the applicable apprenticeship
committee within 10 days of the date of the agreement or contract award, but in no event later than the first
day in which the contractor has workers employed upon the public work. (California Code of Regulations,
Title 8, Section 230.)
• Employ apprentices on the public work in a ratio to journeymen of no less than one hour of apprentice work
for every five hours of labor performed by a journeyman.
Contribute to the training fund in the amount identified in the Prevailing Wage Rate publication for
journeymen and apprentices. Contractors who choose not to contribute to the local training trust fund must
make their contributions to the California Apprenticeship Council, P.O. Box 420603, San Francisco, CA
94142. Training contributions to the Council are due and payable on the 15" of the month for work
performed during the preceding month.
Training contributions to the Council shall be paid by check and shall be accompanied by a completed
CAC2 form, Training Fund Contributions, or the following information (California Code of Regulations,
Title 8, Section 230.2 c):
1. Name, address and telephone number of the contractor making the contribution.
2. Contractor's license number.
3. Name and address of the public agency that awarded the contract.
4. Jobsite location, including the county where the work was performed.
5. Contract or project number
6. Time period covered by the enclosed contributions.
7. Contribution rate and total hours worked by the apprenticable occupation(s).
• Pay the apprentice rate on public works projects only to those apprentices who are registered, as defined in
Labor Code Section 3077:
Sec. 3077. The term "apprentice" as used in this chapter means a person at least 16 years of age
who has entered into a written agreement, in this chapter called an "apprentice agreement," with an
employer or program sponsor. The term of apprenticeship for each apprenticeable occupation shall
be approved by the chief, and in no case shall provide for no less than 2,000 hours or reasonably
continuous employment for such person for his or her participation in an approved program of training
through employment and through education in related and supplemental subjects.
117
Reserved
118
PUBLIC WORKS CONTRACT AWARD INFORMATION
Contract award information must be sent to your Apprenticeship Committee if you are approved to train. If you are not approved
to train, you must send the information (which may be this form) to ALL applicable Apprenticeship Committees in your craft or
trade in the area of the site of the Public Work. Go to http:/twww.dir.ca.gov/das/PublicWorksForms.htm for information about
programs in your area and trade. You may also consult your local Division of Apprenticeship Standards (DAS) office whose
telephone number may be found in your local directory under California, State of, Industrial Relations, Division of Apprenticeship
Standards.
Do not send this information to the Division of Apprenticeship Standards.
NAME OF YOUR COMPANY -
CONTRACTOR'S STATE LICENCE
NO
MAILING ADDRESS, NUMBER & STREET
AREA CODE & TELEPHONE NO
NAME & ADDRESS OF PUBLIC WORKS PROJECT
DATE OF EXPECTED OR ACTUAL
START OF PROJECT
NAME & ADDRESS OF PUBLIC AGENCY AWARDING CONTRACT
ESTIMATED NUMBER OF
JOURNEYMAN HOURS
THIS FORM IS BEING SENT TO: NAME & ADDRESS OF APPRENTICESHIP PROGRAMS
OCCUPATION OF APPRENTICE
APPROXIMATE DATES TO BE
EMPLOYED
This is not a request for dispatch of apprentices.
Contractors must make a separate request for actual dispatch, in accordance with Section 230.1(a) California Code of Regulations
Check One of the Boxes Below
❑ We are already approved to train apprentices by the
Apprenticeship Committee. We will employ and train under their standards
2. ❑ We will comply with the standards of
(Enter name of Committee)
Apprenticeship Committee for the duration of this job only. (Enter name of committee)
3.E1 We will employ and train apprentices in accordance with the California Apprenticeship Council Regulations, including s/s
230.1(c) which requires that apprentices employed on public projects can only be assigned to perform work of the craft or
trade to which the apprentice is registered and that the apprentices must at all times work with or under the direct
supervision of journeyman/men.
Signature
Typed Nam(
Title
State of California - Department of Industrial Relations
DIVISION OF APPRENTICESHIP STANDARDS
DAS 140 (REV. 1/04)
119
Reserved
120
State of California
Department of Industrial Relations
P.O. Box 420603
San Francisco, CA 94142
Please use a separate form for each jobsite, listing the
occupations for the jobsite. One check, payable to the
California Apprenticeship Council, may be submitted for
all jobsites and/or occupations. Training fund
contributions are not accepted by the California
Apprentice Council for federal public works projects, or
for non-apprenticable occupations such as laborers,
utility technicians, teamsters, etc-
TRAINING FUND CONTRIBUTIONS
California Apprenticeship
Council
Name and Address of Contractor/Subcontractor making Contribution
Contractor's License Number
Contract or Project Number
Name and Address of Public Agency Awarding Contract
Jobsite Location (Including County)
Period Covered by Contribution
Title
Code & Telephone
121
Reserved
122
CONTRACTOR FRINGE BENEFIT STATEMENT
Contract Number / Name:
Contract Location:
Today's Date:
Contractor / Subcontractor Name:
Business Address:
In order that the proper Fringe Benefit rates can be verified when checking payrolls on the above contract, the hourly rates for fringe benefits,
subsistence and/or travel allowance payment made for employees on the various classes of work are tabulated below.
Classification:
Effective Date:
Subsistence or Travel Pay:
Health & $
PAID TO: Name:
Welfare
Address:
CA
W
Pension $
PAID TO: Name:
Z
Address:
W
Vacation/ S
PAID TO: Name:
W
Z
Holiday
Address:
Training $
PAID TO: Name:
w
and/or Other
Address:
Classification:
Effective Date:
Subsistence or Travel Pay:
Health & $
PAID TO: Name: -
Welfare
Address:
H_
'i
Pension $
PAID TO: Name:
W
2
Address:
W
Vacation/ $
PAID TO: Name:
W
C.7
Holiday
Address:
Gt~
Training $
PAID TO: Name:
w
And/or Other
Address:
Classification:
Effective Date:
Subsistence or Travel Pay:
a
Health & $
PAID TO: Name:
F-
Welfare
Address:
I
L
LL1
Pension $
PAID T0: Name:
Z
Address:
W
M
Vacation/ $
PAID TO: Name:
W
C~
Holiday
Address:
Z
Training $
PAID TO: Name:
W
And/or Other
Address:
77 rm
uw .-!l~~
R'1 .::5 w n 'IS a n
M,
dlli :..f. P`ewF`t LC'S v :.a
Suoolemental statements must be submitted during the moeress of work should a chanee in rate of anv of the classifications be made.
Submitted:. Contractor/Subcontractor
Name / Title
123
Reserved
124
MONTHLY EMPLOYMENT REPORT
Contractor:
Project Title:
Reporting Period: From: To:
SAMPLE
Employee I.D> Number:
Work Order Number:
Bid Number:
~R. ~.~,a t4 yEmployeekLtst, ~ ~ ,K,~ ~=~c'
.yam fnw eK p6. r f~ t Y r ~ RTi}, ~3 L
1
Male ort
Ethnic
`aCraft
Em to ee
MSource `
Numbet of'.
; H urs. ~
Worked a+.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
Blak, African American
BL
Mexican American, Hispanic, Latino Puerto Rican
MA
Native American, American Indian Eskimo
NA
Asian, Pacific Islander
AP
Filipino
FI
Caucasian
CA
Other Ethnicity (not defined above)
OTH
s 2 Employei `Source
Apprentice Program
A
Employee Agency
E
Training Program
T
Union Hiring Hall
U
Other
O
I certify under penalty of perjury that the foregoing information is true and correct:
Authorized Signature
Printed Name / Title
Date Prepared
125
Reserved
126
of
d
l
p
w <
z
z
0
W
W
a
J
a a..
~ w
CL ~ w
G C
3 as
U
a
a
e~
o <G
n<p, C
e~ V
O H
6 ~
Z
Y
Vp
sz
V
-
Sou
o
°a~
a
~
°r er
'p"
°r `eF
o
tar
~
.5
r=.~
~5
s
r~
s
~
°'a
o
sr
o
rr
~
sa
o
~ i
a ~
r
v i
i
Og
>
~
'ug
>
~
'ug
>
u
_
>
3
O 6
G G
2
~
Q
>
„
Q
N
j
p_
F
O O
Q
~
y
~
Fu
~E~i
~u~r
~x
F
Z
o
m
o
C`
Cr
z
V
S
a x
S
3
~
~ z
< o
V
~ w
~
i~
<o
i~
o f
o
~ W
oW
G
G
G
G
„
„
3
~ r
_
04
e
o=
z
a
~
r
o
Y
=
p
F
C
3
3
~
F
n
O
,n
O
r^
O
H
O
O
- CV
O u.
0
3n
i
6
V
- - -
SNOIldVi3%3
- - - - - -
- - - - - - - -
- - - - - - - -
- - - - - - - -
- - - - - - -
10 OH
'1111M d0 ON
C
Q~.
a~w
Q~o
a<_
za
0
127
9
E ~
H
aJ
y
Z
O
6
V
K
V
g
°a
~ tl
Si
9
E~
Y.
" E
o'€
a_
0
9
W
Z
F "
On
m pN
NOTICE TO PUBLIC ENTITY
For Privacv Considerations
Fold back along dotted line prior to copying for release to general public (private persons).
(Paper Size then 8-1/2 x 11 inches)
I,
(Name - print)
(Position in business)
(Name of business and/or contractor)
the undersigned, am the
with the. authority to act for and on behalf of
that the records or copies thereof submitted and consisting of
certify under penalty of perjury
(Description, number of pages)
are the originals or true, full, and correct copies of the originals which depict the payroll record(s)
of the actual disbursements by way of cash, check, or whatever form to the individual or
individuals named.
Date:
Signature:
A public entity may require a stricter and/or more extensive form of certification.
7
1
128
i
PREVAILING WAGE
DIR DETERMINATION WEBSITE LINK
htta://www.dir.ca.gov/DLSR/statisties research.html
The first bid advertisement date establishes which Department of Industrial Relations (DIR)
determination to use for each work classification you assigned to this project.
All contractor working on the
determination:
Project must refer to the following DIR
20_--/Prevailing Wage Determinations
NOTE: Contractors are held responsible for any/all increases to the prevailing wages. If you see a
double asterisk after the determination expiration date there will be an increase to the prevailing
wages. If you have any questions, please call the Labor Compliance Officer at (626) 569-2158.
129
GENERAL PREVAILING WAGE DETERMINATION MADE BY THE DIRECTOR OF INDUSTRIAL RELATIONS
PURSUANT TO CALIFORNIA LABOR CODE PART 7, CHAPTER 1, ARTICLE 2, SECTIONS 1770, 1773 AND 1773.1
FOR COMMERCIAL BUILDING, HIGHWAY, HEAVY CONSTRUCTION AND DREDGING PROJECTS
CRAFT: # CEMENT MASON
DETERMINATION: SC-23-203-2-2010-1
ISSUE DATE: August 22, 2010
EXPIRATION DATE OF DETERMINATION: June 30, 2011' Effective until superseded by anew determination issued by the Director of Industrial
Relations. Contact the Division of Labor Statistics and Research at (415) 703-4774 for the new rates after 10 days from the expiration date, if no subsequent
determination is issued.
LOCALITY: All localities within Imperial, Inyo, Kern, Los Angeles, Mono, Orange, Riverside, San Bernardino, San Luis Obispo, Santa Barbara, and
Ventura Counties.
CLASSIFICATION
(JOURNEYPERSON)
Cement Mason, Curb and
Gutter Machine Operator; Clary and
Similar Type of Screed Operator
(Cement only); Grinding Machine
Operator (all types); Jackson
Vibratory, Texas Screed and Similar
Type Screed Operator;
Scoring Machine Operator
Magnesite, magnesite-terrazzo and
mastic composition, Epoxy,
Urethanes and exotic coatings,
Dex-O-Tex
Floating and
Troweling Machine Operator
Employer Payments
Snaieht-Time
Overtime Hourly
Rate
Basic
Health Pension Vacation/
Training Other
Hours Total
Daily 'Saturday
Sunday
Hourly
and Holiday
Payments
Hourly
and
Rate
Welfare
Rate
11/2X I1/2X
Holiday
$29.50
6.92 6.65 °5.83
0.45 0.15
8 49.50
'64.25 `64.25
79.00
29.62 6.92 6.65 °5.83 0.45 0.15 8 49.62 `64.43 `64.43 79.24
29.75 6.92 6.65 °5.83 0.45 0.15 8 49.75 `64.625 '64.625 79.50
#Indicates an apprenticeable craft. Effective as of July 1, 2008, the issuance and publication of the prevailing wage apprentice schedules/apprentice wage
rates have been reassigned by the Department of Industrial Relations from the Division of Labor Statistics and Research to the Division of Apprenticeship
Standards. To obtain any apprentice schedules/apprentice wage rates, please contact the Division of Apprenticeship Standards or refer to the Division of
Apprenticeship Standards' website at http,H%v w.dir.ca.gov/das/das.htm].
" Saturdays in the same work week may be worked at straight-time rates if ajob is shut down during normal work week due to inclement weather or Act of
God or similar situation beyond the control of the contractor.
b Includes an amount for supplemental dues.
` Rate applies to the first 4 overtime hours. All other time is paid at the double time (2X) rate.
RECOGNIZED HOLIDAYS: Holidays upon which the general prevailing hourly wage rate for Holiday work shall be paid, shall be all
holidays in the collective bargaining agreement, applicable to the particular craft, classification, or type of worker employed on the project,
which is on file with the Director of Industrial Relations. If the prevailing rate: is not based on a collectively bargained rate, the holidays
upon which the prevailing rate shall be paid shall be as provided in Section 6700 of the Government Code. You may obtain the holiday
provisions for the current determinations on the Internet at http://www.dir.ca.izov/DLSR/PWD. Holiday provisions for current or superseded
determinations may be obtained by contacting the Prevailing Wage Unit at (415) 703-4774.
TRAVEL AND/OR SUBSISTENCE PAYMENT: In accordance with Labor Code Sections 1773.1 and 1773.9, contractors shall make
travel and/or subsistence payments to each worker to execute the work. You may obtain the travel and/or subsistence provisions for the
current determinations on the Internet at http://www.dir.ca.,gov/DLSR/PWD. Travel and/or subsistence requirements for current or
superseded determinations may be obtained by contacting the Prevailing Wage Unit at (415) 703-4774.
130
CONSTRUCTION INTERVIEWS
CONFIDENTIAL
Employee Statement
This document contains personal information
Side I Of t
and it shall be kept confidential in order to
protect against unauthorized disclosure.
. kC rt~ 4 S~
'Y t
R
# f
S{ tk { n b r A i
-
`d E
.
z
t
'
t 1
:
s
t'
t
Om an Em ~O BC
r P r
? ms
.
:
#e Y f " h "P 'b ~i
:
.y +
~ -
ectLame
-P ro
-
1
l
.
z2s
-
.
}
, t :
r 7
rti'
ation
t
L
J
b~'
:
,
.
Si
e/
oc
o
33 yI i t T t S~r7 k M R w 9: 1 N 6t ti,r S'3 th ~4 h
ny" Co"n Gr'acNK# DOH
m
`C
pa
o
Yl` iM ~ 3 R~ 150 J ~ L ] } ~h 1 }
i S
ace Sex
R
;D
t
a
e
.-at
QUESTIONS
1. What is your current position and salary?
2. How long have you worked for this company?
3. How did you hear about this job or company?
4. Do you believe you are earning a fair wage compared to others within your trade?
5. Are you receiving a fair share of overtime?
6. Have you ever been asked to work outside your trade? For more or less wages?
7. Do you belong to a Union? Did you belong to a Union before this job?
8. Has this company provided you with any type of formal or informal training (OJT)?
9. Have you received any formal or informal training or discussion regarding the company's Equal Employment
Opportunity Policy?
131
CONSTRUCTION INT1•RVIEWS w s * #k
s
Mg,
„u
4Emolo
m
t
e Stat
Fy
e
en
ye
x k i, t d, 'y. c afi
a
' 4r a
r 3 5
`
11~
.
,
A!
=,:r ~Side2
ot2 -
v~
10.
Have you observed the posting of the company's EEO Policy letter and EEO posters at project construction
sites and/or in the company office?
11.
Have you ever been encouraged by your employer to refer your friends (especially minorities and women)
with construction trade experience to apply for employment at this company?
12.
What do you believe the company's attitude is regarding the hiring of minorities and women?
13.
Have you been aware of working with minorities, women, veterans or disabled individuals at this job site or
others?
14.
Do you believe the company has treated you fairly?
15.
Does the company ensure and maintain a working environment free from harassment, intimidation and
coercion at its job sites?
Additional Comments
Employee Signature
Labor Compliance Officer
Date
Date
132
SUPERINTENDENT OR
CONFIDENTIAL
FOREMAN
This document contains personal information and
STATEMENT FORM
it shall be kept confidential in order to protect
against unauthorized disclosure.
Side 1 of 2
-41
i,JPS. P 53 i !k x 'y'
1 i d
k* Y Y+u [I *^kf # q t'r, R~~. u t
c
,~Fr
a
r c
i
leodent/Foieman tR .
+FS
S
r
~
CCO 7 s
t ,y
~ n
r , to _
oper
n
.
.-..r...,
ectName
P ro
,
l
r X
K# "
f
t
C
' t
. z. ?
ContraQc
r%
om,Pfl°Y,
f ~r
k aA - } [
~ I 3~I r t0Y t t 3 t f t' 5, KZ~}4.'115 Y M~~ 1 F[u } M
F
'
t 4
t `
a
'Date t Y
4 1
7
5}!!
Race x p p; Sex
'
r } }
1
r. r.• .......~m_...v 1 a.~V ..a. .ec[s:.-.
I
V
..Arri__ .N. rn.. _ fr n . -k".i ~lr...z. t 1
QUESTIONS
1. How long have you worked for this company (DOH)?
2. How long have you been the superintendent or foreman?
3. How did you hear about this job or company?
4. What is your recruitment or hiring process?
5. Are you involved in the hiring process?
6. Do you maintain a record or file of names addresses and phone numbers of off-the-street applicants (females,
minorities, disabled and veterans) for employment?
7. Do you refer them to your hiring official and/or to the Union?
8. Does the Union allow you to do your own recruitment?
9. Are you responsible for work assignments, layoffs and terminations?
133
-l 'r
t Su
ermtendent or Foreman Statement Form
p
W-f
4a
m`* We 2 of 2'
10.
Are your personnel practices such as layoffs, terminations, etc..., monitored to insure that these practices
have no discriminatory effect and ensures that the EEO Policy is being implemented?
11.
Have any employees referred minorities, women, veterans or disabled individuals for employment
opportunities with your company? Have any of these referrals been hired?
r
12.
Have you received any formal or informal training, or discussion of the company's EEO Policy and
affirmative action obligations as a government contractor?
13.
Do you know who the company's EEO Coordinator is?
14.
Do you inform and discuss the company's EEO Policy with your employees?
15.
Does your company provide formal or on-the-job training to employees?
16.
Do you ensure and maintain that construction sites are free from harassment, intimidation and coercion?
I
Additional Comments
Superintendent/Foreman Signature
Labor Compliance Officer
Date
Date
134
y
U
U
d
U
N
H
Q W
No
c
J
o
N
O
0
d
O
U
O W
p
T
LD
o
02
O
T y
m C
Q u'
N_
y
r
~
U o
u o
j
z
a Q
a
C
`
m
Z
m
f
O
n
U
o
0
U
O
m
rn
m
m
a'
a
vi
A
a
w
ui
p
w
rc w
a
W F
a
a z
o
m
Y F
-
-
_
Q Q
n
Q
~
K
Rte'
O
J
OW
z
N
`v
W
O
n
a
>
_I
a
d
a
a
Q
}
N
J F
Q
U)
o u
w
w
:
y
7
w
W
U
2
W
W
Y
0
0
a
p
a
f
Uf
L
O
L
O
0
m
~
N
Z
Q
N
N
U
~
g
w
O
w
U
f
K
~
a
=
O
x
Y
V
m
co
0
0
H H
N
a
Q
j p
m
m
w
f-
1
Vl
d
O
N
O
1
5
0
0
Reserved
136
Pre-Award Letter (Sample)
September 20, 2010
Mr. John Doe
Doe Construction
11122 Valley Boulevard
Rosemead, California 91770
Dear Mr. Doe:
The City of Rosemead has identified your firm as the apparent low bidder for Contract #10-XXX
Citywide Curb Ramps Project and has scheduled board approval of a contract requiring your
compliance with Division 2 Part 7 of the California Labor Code. This will require payment of
prevailing wages to all workers employed on the project and reporting of certified weekly
payrolls. The Labor Code requires, prior to the start of work that a person qualified to certify
documents for your firm, attend a review meeting with the awarding body concerning the Labor
Code prevailing wage laws.
The Labor Compliance Officer is formally requesting the appearance of the certifying person for
the code review, the submittal of the required weekly certified payroll records or
nonperformance reports, and the monthly submittal of employment utilization reports, all
identified in the contract general conditions.
This request is made pursuant to, and authorized by, California State Labor Code Section
1776(b) (2), which states, "A certified copy of all payroll records enumerated in subdivision (a)
shall be made available for inspection or furnished upon request to a representative of the body
awarding the contract, the Division of Labor Standards Enforcement and the Division of
Apprenticeship Standards of the Department of Industrial Relations" and California Code of
Regulations Section 16430 (a) (2).
The goal of the Labor Compliance Officer is to provide necessary information, assistance, forms
and procedures to allow your project to move forward on schedule and in compliance with the
State's Labor Code. Please call the City of Rosemead's Labor Compliance Officer at (626) 569-
2158 to set an appointment and receive necessary forms prior to the start of your project.
Sincerely,
Labor Compliance Program Administrator
137
Post-Award Letter (Sample)
September 25, 2010
Mr. John Doe
Doe Construction
11122 Valley Boulevard
Rosemead, California 91770
Dear Mr. Doe:
The City of Rosemead has awarded your firm a contract requiring your compliance with Part 7,
Chapter 1 of the California Labor Code. This will require payment of prevailing wages to all
workers employed on the project and reporting of the weekly payroll to the City's Labor
Compliance Officer.
The Labor Code requires, prior to the start of work that a person qualified to sign and certify for
your firm, attend a review with the awarding body of the Labor Code prevailing wage laws. The
Labor Compliance Officer goal is to provide the necessary information, assistance, forms and
procedures to allow your project to move forward on schedule and in compliance with the State's
Labor Code.
Please call the City's Labor Compliance Officer at (626) 569-2158 to set an appointment and
receive the necessary forms prior to the start of your project.
Sincerely,
Labor Compliance Program Administrator
138
First Request for Certified Payrolls Letter (Sample)
September 25, 2010
Mr. John Doe
Doe Construction
11122 Valley Boulevard
Rosemead, California 91770
Dear Mr. Doe:
The City of Rosemead's Labor Compliance Officer is formally requesting copies of Certified
Payroll Records and Monthly Employment Reports for the Citywide Curb Ramps Project. We
are requesting records from the beginning of the project through project completion for your firm
and all subcontractors.
This request is made pursuant to, and authorized by, California State Labor Code Section 1776
(b) (2) and Section 1776 (g) (3) and the contract general conditions requiring weekly employee
payments and weekly certified payroll submittals.
Labor Code Section 1776 (b) (2) states: "A certified copy of all payroll records enumerated in
subdivision (a) shall be made available for inspection or furnished upon request to a
representative of the body awarding the contract, the Division of Labor Standards Enforcement
and the Division of Apprenticeship Standards of the Department of Industrial Relations."
Labor Code 1776 (g) (3) states: "The contractor shall have ten (10) days in which to comply
subsequent to receipt of written notice specifying in what respects the contractor must comply
with this section. In the event that the contractor fails to comply within the 10-day period, he or
she shall, as a penalty to the State or political subdivision on whose behalf the contract is made
or awarded, forfeit twenty-five dollars ($25) for each calendar day, or portion thereof, for each
worker, until strict compliance is effectuated."
Please forward all weekly Certified Payroll Records and Monthly Employment Reports on the
City and State approved forms previously provided to: City of Rosemead, Labor Compliance
Officer, 8838 E. Valley Boulevard, Rosemead, California 91770.
If you have any questions, contact me at (626) 569-2158.
Sincerely,
Labor Compliance Program Administrator
139
Reserved
140
Missing Document List (Sample)
Prime Contractor:
Project:
Original Request: 09/01/10 This Request: 09/15/10
1. Monthly Employment Reports must be provided for:
2. Apprenticeship Training Agreement (similar to Form DAS 1) must be provided for:
3. Apprenticeship Training Agreement (similar to Form DAS 7) must be provided for:
4. Training Fund Contributions (Form CAC 2 or equivalent) must be provided for:
5. Public Works Contract Award Information (Form DAS 140) with the name, address
and phone number of the training program notified by all project contractors must be
provided for:
6. Fringe Benefits Statements must be provided for:
7. Signed certified Payroll report or statement of Non-Performance with original
signatures must be provided for:
Contractors are responsible for submittal of their payrolls and those of their respective
subcontractors as one package, which must be in the City's Labor Compliance Officer
within one week of each weekly paycheck. In the event there has been no work
performed during a given week, the certified payroll record shall be annotated with the
words "No Work" for that week.
8. To determine the required hours for apprentices on this project we will need the
contractor to identify all sub-contractors who will perform work in involving less than
$30,000 or who will be on the project less than twenty (20) calendar days or both.
9. The Public Works Payroll Reporting Form (Form A-1-131) must be used.
141
Reserved
142
U
w
O
S
a.
co
a
m
S
U
w
0
F
U
N
C
d
E
L
U
Q
d
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
O
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
N
C
d
0
M
0
(A
0
fA
0
CO
0
d-J
0
fA
0
fA
0
fA
0
fA
0
N
0
69
0
69
0
fA
0
U)
0
E9
0
fA
O
fA
d
~
E
0
0
O
T a)
d
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
U
0
O
O
O
O
O
O
O
O
O
o
0
0
0
0
0
0
m
f4
= d
O
fA
O
69
O
N
O
N
O
61J
o
fA
o
64
O
64
O
<A
O
fA
O
fA
O
fA
O
fA
O
fA
o
fA
O
fA
o
d
E
= d
d
O
o
O
E m
U
r
d
[Y
d
y
N
N
O
m
C
(D a)
CD
U
~~m
$
c0
J
d
~
w
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
C
O
N C
O
.
.
0.
0.
0.
0.
0
0
0
0
0
0
0
0
0
0
0 E
E
O
N
fA
fA
fA
fA
fA
EA
fA
fA
fA
fA
fA
fA
fA
fA
fA
Q
0
N N
J Y
`
O
O
S
m
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
a
o
o
o
o
o
0
0
0
o
o
o
o
o
o
0
o
N
O
O
O
O
O
O
O
O
O
O
O
0
0
O
O
O
o =
of
(A
V)
fA
fA
fA
fA
fA
fA
U3,
fA
fA
tv
69
69
V)
111
(7
J
z
a
o
N
W
c d
LL
O
LL
o
z
co
~
d
U
z
p
co
R
5;
O
w
d
0
a
D
w
Z
x
0
0
0
CO
o
z
m
o
U
O
w
Q
U
m
°
d
z
U
ca
O
U
Y
p
d
=
0
A
z
N
F-
C
CY
O
.0
(L
d
O
lr
co
Z
d O
d d
~
T
O -ca ~
b E
E O 7
w lnZ
143
0
0
O
49.
d
CC
w
O
v
d
.O
a`
m
0
Reserved
144
Certified Payroll Correction Letter (Sample)
September 1, 2010
Mr. John Doe
Doe Construction
11122 Valley Boulevard
Rosemead, California 91770
Dear Mr. Doe:
The City of Rosemead's Labor Compliance Officer has formally requested copies of Certified
Payroll Records and Monthly Employment Reports for Bid Project Portable Contract 82-Phase 2.
We have reviewed your submittal and require additional information.
This new request is made pursuant to, and authorized by, California State Labor Code Sections
1774, 1775, 1776, 1777.5, 1777.7, 1810, 1813 and 1815. Additionally, the contract general
conditions require weekly certified payroll record submittals to the City's Labor Compliance
Officer and weekly payment of employee wages.
Labor Code §1776 (b) (2) states: "A certified copy of all payroll records enumerated in
subdivision (a) shall be made available for inspection or furnished upon request to a
representative of the body awarding the contract, the Division of Labor Standards Enforcement
and the Division of Apprenticeship Standards of the Department of Industrial Relations."
Labor Code §1776 (g) states: "The contractor shall have ten (10) days in which to comply
subsequent to receipt of written notice specifying in what respects the contractor must comply
with this section. In the event that the contractor fails to comply within the 10-day period, he or
she shall, as a penalty to the state or political subdivision on whose behalf the contract is made or
awarded, forfeit twenty-five dollars ($25) for each calendar day, or portions thereof, for each
worker, until strict compliance is effectuated."
Please correct and supply the data requested in the attachments and submit on approved forms to:
City of Rosemead, Labor Compliance Officer, 8838 E. Valley Boulevard, Rosemead, California
91770. If you have any questions, contact me at (626) 569-2158.
Sincerely,
Labor Compliance Program Administrator
145
Reserved
146
Labor Compliance Program Regulations
REQUEST FOR APPROVAL OF FORFEITURE
AWARDING BODY / THIRD PARTY LCP:
Name and Contact Information:
Date of Request:
Name and Contact Information for Awarding Body if
LCP Approval Status (specify if either
different from LCP:
interim or temporary or if LCP has
extended authority):
2. PROJECT INFORMATION:
Project Name:
Contract Number:
Project Location:
Bid Advertisement Dates:
Estimated Date Project is to be completed:
Acceptance Date of Project by the Awarding
.Body:
Notice of Completion/Date Recorded with County
Recorder:
Other Relevant Deadline (specify):
Amount being held in Retention:
3. CONTRACTOR INFORMATION:
Name
Name and address of Affected Subcontractor:
General Description of Scope of Work of the Entire Project:
General Description of Scope of Work covered in the proposed Forfeiture (describe and attach relevant
portions of contract or subcontract):
147
4. LABOR COMPLIANCE PROGRAM INVESTIGATION AND FINDINGS:
Total Amount of Request for Notice of Withholding of Contract Payments:
Wages Due:
Training Funds
Total Penalties Due:
Potential Liquidated Damages
Due:
[Wages + Training Funds]:
LC 1775 Penalties Due:
LC 1813 Penalties
LC 1776 Penalties Due:
Other:
Due:
[Provide narrative summaries covering the following]:
A. Statement ofissues.
B. Investigative Report (detailed narrative including but not limited to how the investigation was
conducted including worker declarations, reviewing certified payroll records, verification of employer
payment contributions, etc.).
C. Audit Report (detailed explanation of how audit was completed addressing each of the issues
above).
D. Affected contractor and subcontractor information (how affected contractor and subcontractor were
informed of potential violations; summary of their response with respect to violations and penalty
issues; and any other information considered in determining recommended penalties).
E. Recommended penalties under Labor Code Section 1775(a) and basis for recommendation,
including how factors in subsection (a)(2) of Section 1775 were applied to arrive at the recommended
amount(s).
ATTACHMENTS
1. Audit Summary (Appendix B)
2. 1" Bid Advertisement Publication
3. Notice of Completion
4. Scope of Work
5. Complaint form(s) and Declarations, if any
Send the Request and all Attachments to:
Division of Labor Standards Enforcement
Bureau of Field Enforcement
Attn.: Regional Manager
300 Oceangate Blvd., No. 850
Long Beach, CA 90802
COPIES OF THIS REQUEST, INCLUDING ALL ATTACHMENTS, SHALL BE SERVED ON
THE AFFECTED CONTRACTOR AND AFFECTED SUBCONTRACTOR AT THE SAME
TIME THAT IT IS SENT TO THE DIVISION OF LABOR STANDARDS ENFORCEMENT.
148
Labor Compliance Program Regulations - Appendix B
Audit Record Worksheets [8 Cal. Code Reg. § 16432]
• Public Works Investigation Worksheet
• Public Works Audit Worksheet
• Prevailing Wage Determination Summary
149
S
z
d
d
d
d'
d
u
d
d
d
d
d
d
m
z
No
. of udatims
Wi
il
H
w ~
No
. of V Owws
pg
S
a
~
s
3 0
~
a
d
F
~ w
u ~
0
0
3 ~
An
O
y
5Q R ~
W
6
1
u
O
Q O
~ 6
I
11
sass
N
~ 4
O O
y
~y5~
O
`i
O
O
w
LL
w
o
-
-
-
-
-
-
-
~
-
-
-
~
-
-
-
-
-
-
-
-
-
I
U,
a
~
_
I
-
_
~
~
~
,
_
~
!
!
I
1
-
d
-t
-
l
-
d
t
-
F
r
l
T
I
I
l
I
I
I
I
i
I
t;
o o
n o o
n o o
r o o
t o o
o o
.
o o
tn o o
o o
G o o
C o o
o o
G o 0
y
O
H
U
LL
pq2
Q
Z~
F
N
3
0
Z
0
N
0
N
g
a
z
0
6
flassifio on fade LLJJ
I I u u u u u U L l LJ U LJ U H
o ~ a
n O o
z
a
a
0
~o
s~
Z
p
z.
3
3
o
zd
¢
ti
o
~
rLL
z
~
o
N
LL
O'
w
(7
w
FF
z
Z
F
~
Q
Q
Z
~ ry
~
3
a
ai
~g
30
o
Q
k
k
00
a'd
N
N
i Q
K 3
a
W
C
O
N ~
w
w
U
<
] Z
o
a°
m
9
~
n
Z
< w
0
c7
3
a
m
E
a
a
U
Z
N
F'
O
K w
W
N
o
~
_
3
f-
0
O
w
O
3
w
g
W
~ y
T
0
Do
W
a 3
`
n is
O
¢
m
m
0
y Q
W
£ ~
N
Va
y c
Q
U
C N
N
N n
Y ~ h
4 ~ n m
N a
F~
_ c4
LL
~ ~
~
N
U
T
~ C
6
0
S1
~
a
f
ys
f Y
w
N
Y
0
L
O
0
m
a
L'
E
E
N
j
£u..
M
fv }
}
ra,
d"
Fs£y
Y z
I"' f
Fy,
191
you
(
fS".
T C
u
pY
1
E
R
FS
,~t
S
2
al
\
s
R .
t
t a
kY
;
`L'
a
£
%
f 5-
yy
3`ls5
'kC
~
[
Y
Ott
to
i
T
F
¢
5
k';k3
git,
h
r2
alt
111,
r•
£
1a1
112
x
3
go
;1 $
h
M
'A
F
Y ff,
g
F
T F
F
K
F
S G
F
1.F
>
~
3v
f
i
Y
^nm E
i
x
e)
MU,
)
FN
"F
to
RM
.
a
It
E.t c:
W
PL
E-
t
F
T
p
Q
Y
lE
1
m
INN'
5
X
f Lf ,
't
F:
.
.
'S'
Q
1
;
w
s
' `
Pi.
.
to
a
r
F.
tl
O
r
E`
Y
F°Ck -
103
x-
s
x vG
x
xG
F:
ierYF
0
t k'
k
Ea-}e
N
3'~
l"
X
TC~
S„
l sax
£
R
F
2
i
BCam
it
l
"
Y
6-
i
"
£
~
.
1
,
°
s
Nd
.
4
E"•
A "~8
`
H.
2
3'^x
a`_
gj2
~y
-
oil
3i,
v rz:
<
fr F
-
in
s
Y D
i4
}t'F
},F.
igvF:'.
C 9
1111
MR
k
goo
log
W
MoI,
JIM
$
ot
C
S
h
R
F
.
S
N
t3y."l[
x
V
l
S R
E
r .
~;1ui
n
G`
$
y
p
£3
I
3
FE D
KW
T
.a3
°n~g
v
'
~u
i
C
, •kt
S
,yZ... SSS
C+'L
51
34
M
si
3
xoon~
.
^u
H
1 -
S
h
.n
fII'iwf!
r2s
:
x
)f..3.F
xi
~
NMI
1
5
.
_
ra.
O
C
.3$
O
Ens;
rack
SEy
Z '7
s
s.
m
k}
-o
,
1
k
S,
k
o~in
D
G
t
{
t 5
q
}E
'
g.0
It.
~x
w
i
g
.
Nig
il
l
g P'.
n 3
2-2
OW
By
110
-11
l
m
Roo
~No
NN:
r3
:
i
3..3
i
Es
ill
3
fi f
ogN
sC
i
i
tR
E
a+'
ze`
£ }i
F
S: 8
F: 8:
'
,
3
8
§
i
b
k t
d
y}'
x
-k ;
trtc.
E t t
>
§
t:
ti
N
t~'1
~
1ST
z
E
N
Single Project Labor Compliance Review and Enforcement Report Form
[Appendix C following 8 CCR § 16434]
Awarding Body:
Project Name:
Name of Approved Labor Compliance Program:
Bid Advertisement Date:
Acceptance Date:
Notice of Completion Recordation Date:
Summary of Labor Compliance Activities
1. Contract Documents Containing Prevailing Wage Requirements (Identify)
2. Prejob Conference(s) Attach list(s) of attendees and dates
3. Notification to Project Workers of Labor Compliance Program's Contact Person. (Explain'
Manner of Notification for each project work site.)
4. Certified Payroll Record Review
a. CPRs Received From:
Contractor/Subcontractor For weeks ending ("We") through w/e
b. Classifications identified in CPRs and applicable Prevailing Wage Determinations
Classification Determination No.
153
5. Further investigation or audit due to CPR review, information or complaint from worker or other interested
person, or other reason:
a. Independent Confirmation of CPR Data
Worker Interviews Reconciled CPRs with Pay-
Contractor/Subcontractor (Yes/No) checks or Stubs (Yes/No)
b. Employer Payments (Health & Welfare, Pension, Vacation/Holiday) Confirmation
Recipients of Written confirmation
Contractor/Subcontractor Emplover Payments Obtained (Yes/No)
C. Contributions to California Apprenticeship Council or Other Approved Apprenticeship Program
Recipients of Written confirmation
Contractor/Subcontractor Contributions Obtained (Yes/No)
d. Additional Wage Payments or Training Fund Contributions Resulting from Review of CPRs
Additional amounts Additional
Contractor/Subcontractor Paid to Workers Training Fund Explanation
*
*
*
* Use separate page(s) for explanation
6. Complaints Received Alleging Noncompliance with Prevailing Wage Requirements.
154
i
Name of Resolution or
Complainant Date Received Current Status
*
*
*
*
*Use separate page(s) to explain resolution or current status
7. Requests for Approval of Forfeiture to Labor Commissioner
Contractor/Subcontractor Date of Request Approved/Modified/Denied
8. Litigation Pending Under Labor Code Section 1742
Contractor/Subcontractor
9. (Check one): Final report this project
DIR Case Number
Annual report this project
Authorized Representative for Labor Compliance Program
155
Reserved
156
STATEMENT OF NON-PERFORMANCE
Payroll No.: Date:
Bid Package No.:
Name of Contractor:
I do hereby state that no persons were employed on the construction site of Project:
payroll period commencing on the _
the day of 20
Signature of Authorized Person
Title
Date
Final Payroll: Yes No
day of
during the
20 and ending on
This statement is not required to be submitted until after submission of the initial payroll
report. It must then be submitted by the contractor for each week, in place of a certified
payroll, where no work is preformed until the final certified payroll is submitted.
157
Reserved
158
C1
PUBLIC WORKS AFFIDAVIT
California Labor Code §1775(b)(4)
The undersigned Contractor/Subcontractor has complied with the provisions of the California
Labor Code §1771, §1773.1, §1775, §1776, §1777.5, §1813 and §1815, and has paid all
employees the specified general prevailing rate of per diem wages to its employees, and any
amounts due pursuant to § 1813, on the public project:
Awarding Body/District:
Project:
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true.and correct.
Executed this day of 20 at
California.
(Company Name)
(Name)
(Title)
(Signature)
(Approved by LCO/Program Manager)
[No final payment or retention shall be paid to the contractor until it certifies that all benefit payments owed by the
contractor are made or otherwise guaranteed.]
159
Reserved A
160
PRE-CONSTRUCTION MEETING
LABOR COMPLIANCE RESPONSIBILITIES & REQUIREMENTS
I REQUIRED SUBMITTALS (Submittal Schedule & Forms)
A. LCP Checklist - Submit at Pre-Construction Meeting (Review and sign)
1. Payment of Prevailing Wage Rates
• Public Works Project requires the payment of prevailing wages to all employees
• The prevailing wage determination applicable to this project can be found on the California
Department of Industrial Relations website at:
http://www.dir.ca.gov/DLSR/statistics-research.html
• You must refer to the Determination
2. Apprentices
• All contractors must make a "good faith effort" to employ apprentices (if craft is
apprenticeable).
• Submit a DAS-140 (Public Works Contract Award Information) to your appropriate
Apprenticeship Committee. Submit copy of your certified mail certificate as proof of your
submittal.
3. Penalties
4. CPRs
5. Non-Discrimination in Employment
6. Kickbacks Prohibited
7. Acceptance of Fees Prohibited
8. Listing of Subcontractors
9. Proper Licensing
10. Unfair Competition Prohibited
11. Workers' Compensation Insurance
12. OSHA
13. Hiring Undocumented Workers
14. Itemized Wage Statements to Employees
15. Public Works Affidavit
B. DAS-140 & DAS-142 -Submit before you start work on the project.
• Requirement to "announce" that you will be working on a public works project (compliance is
proven via submittal of DAS-140)
• Requirement to "request the dispatch of apprentices" for this public works project (compliance
is proven via submittal of DAS-142 or via verbal request)
• These forms should be sent to the local apprenticeship committee for your craft.
If you need the contact information for your applicable apprenticeship committee, call TSG at
(626) 685-6989
C. CAC-2 - Submit each month, or 1-time submittal (at beginning or end of project)
• For every craft and every hour worked in that craft, you must make the appropriate
training fund contributions. Record the total number of hours workers worked on the job,
multiply by the appropriate training amount for that craft, and send a check to appropriate fund
(see below).
• Union Contractors: On the CAC-2, indicate which Union Trust Fund you make training
fund contributions to. TSG will audit Trust Fund Reports.
• Non-Union contractors: Must make training fund contributions to the California
Apprenticeship Council. Send a copy of the CAC-2 form & copy of the contribution check to
TSG.
D. CPRs & Statements of Compliance - Submit for each week you work on the project.
• CPRs must be submitted for every week that work was performed on the project.
161
• Make sure that you include an accurate work dassifrcation for all your workers. (e.g. 'Laborer
Group 2', 'Laborer Apprentice level 1'or apprentice 65%'
• CPRs are not valid unless accompanied by a signed statement of compliance
• CPRs must be submitted even on the weeks in which you did not perform any work - This is
called a non performance payroll.
• The last payroll should be marked as "final"- when we see the final payroll it triggers our
closeout procedures.
E. Fringe Benefit Statement - Submit with your 1st CPR.
• Indicate each benefit amount for every individual craft you employ on this project.
• If fdnge benefits are paid to workers in cash, please write that next to the benefit dollar
amounts on the form.
• If fringe benefits are paid to a Union or Employer's Trust Fund on behalf of your workers, write
the contact information in the designated places.
• Note: Training Fund Conbibutions are never paid to the employees
F. Trustee Reports- Submit monthly (typically 2 months in the rear)
• If fringe benefits are paid to a Union or Employer's Trust Fund on behalf of your workers, Trust
Fund Reports & copies of the contribution checks must be submitted monthly - this proves the
benefits were paid for every hour worked on this project
G. Public Works Affidavit -Submit with your "final" CPR
• Once T5G has received all the required submittals from your firm, and has resolved any
outstanding issues, T5G will sign-off on the PWA & forward it to the Districtalong with a
Request for Release of Retention.
U. PENALTIES
Goal: Resolve all issues before they reach the penalty stage. If workers are underpaid, we will give
you the opportunity to correct the situation. However, if we do not receive the documents we need
in a timely manner, or do not receive responses to our letters, we will not hesitate to impose
penalties. Penalties can add up, ranging from $25 a day per worker to $50 dollars a day per
worker.
162
SAMPLEFORMS
FORMS SUBMITTAL SCHEDULE
Document Name
Frequency
Submittal
Due Date
Notes:
At pre-
LCP Checklist
1-time
construction/LCP
Must be submitted by all listed contractors and subcontractors
submittal
meeting
A copy MUST be forwarded to the Labor Compliance Officer
Form DAS-140
Public Works Contract
Award Info
1-time
Prior to start of
A DAS-142, the form to "request for dispatch of an apprentice"is not a
submittal
work
required submittal; however, making a request for the dispatch of an
Form DAS-142
apprentice IS REQUIRED (verbal or written). Therefore, the submittal
(recommended)
of a DAS-142 is recommended, since it serves as proof the request
was made.
1-time
In the event fringe benefits are paid "in cash" to workers, contractor
submittal,
Submitted with 1
should indicate "fringe benefits paid in cash" across this form.
Fringe Benefit
then as
CPR, then as
Statement
benefit
contribution
Note: Training contributions should be paid to the CAC or an approved
amounts
amount changes
apprenticeship training program; not to the employee.
change
Statement of
CPRs to be submitted to the Labor Compliance Officer within 10 days
Compliance
from the end of the payroll period. All documents modifying the payrolls
Certified Payroll
Within 10 days of
must accompany the CPR; these include but are not limited to:
"
" "
" "
"
Weekly
end of payroll
alternative work schedules.
special-shifts,
make-up days,
approved
Report (CPR)
period
All inactive workweeks (after the submission of the 15' CPR) should be
Statement of Non-
reported on a "Statement of Non-Performance"
Performance
Owner-Operators
(If applicable)
Statement of
Within 10 days of
If applicable, all Owner-Operators are to be reported on these forms.
Compliance
Weekly
end of payroll
Forward forms to the Labor Compliance Officer weekly.
period
Owner-Operator CPR
Employer's Monthly
Report to Trustees
Within 15 days of
Submit monthly reports sent to the trust/plan along with a copy of the
Monthly
end of reporting
contribution check, to the Labor Compliance Officer.
Copy of the
month
contribution check
Form CAC-2
'
A copy MUST be forwarded to the Labor Compliance Officer
Training Funds
By the 15
of each
Contributions
Monthly
month, for work
performed in the
Monthly submittal should reflect the accurate monthly man-hours
preceding month
performed during the previous month. The CAC-2 form must be
Copy of the
accompanied with a copy of the contribution check.
contribution check
1-time
List of Sub-Tier
submittal,
then as subs
Prior to start of
Must be submitted by all contractors. Indicate which subcontractors the
Subcontractors
work
contractor intends to utilize in execution of its project work
are brought
on
1-time
At conclusion of
To be submitted to the Labor Compliance Officer by the prime and
Public Works Affidavit
submittal
work -
each sub at the conclusion of the work and prior to release of retention.
163
Reserved
164
r-~