House File 38 - Introduced
HOUSE FILE
BY HUNTER
A BILL FOR
1 An Act requiring the payment of local prevailing wage rates to
2 persons working on public improvements for public bodies,
3 and providing remedies and penalties and including effective
4 date provisions.
5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
TLSB 1286YH (3) 86
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PAG LIN
1 1 Section 1. Section 84A.5, subsection 4, Code 2015, is
1 2 amended to read as follows:
1 3 4. The division of labor services is responsible for the
1 4 administration of the laws of this state under chapters 88,
1 5 88A, 88B, 89, 89A, 89B, 90A, 91, 91A, 91C, 91D, 91E, 91F, 92,
1 6 and 94A, and section 85.68. The executive head of the division
1 7 is the labor commissioner, appointed pursuant to section 91.2.
1 8 Sec. 2. Section 91.4, subsection 2, Code 2015, is amended
1 9 to read as follows:
1 10 2. The director of the department of workforce development,
1 11 in consultation with the labor commissioner, shall, at the
1 12 time provided by law, make an annual report to the governor
1 13 setting forth in appropriate form the business and expense of
1 14 the division of labor services for the preceding year, the
1 15 number of remedial actions taken under chapter 89A, the number
1 16 of disputes or violations processed by the division and the
1 17 disposition of the disputes or violations, and other matters
1 18 pertaining to the division which are of public interest,
1 19 together with recommendations for change or amendment of the
1 20 laws in this chapter and chapters 88, 88A, 88B, 89, 89A, 89B,
1 21 90A, 91A, 91C, 91D, 91E, 91F, 92, and 94A, and section 85.68,
1 22 and the recommendations, if any, shall be transmitted by the
1 23 governor to the first general assembly in session after the
1 24 report is filed.
1 25 Sec. 3. NEW SECTION. 91F.1 Short title.
1 26 This chapter shall be known and may be cited as the "Public
1 27 Improvement Quality Protection Act".
1 28 Sec. 4. NEW SECTION. 91F.2 Public policy.
1 29 It is in the public interest that public improvements
1 30 are completed by the best means and highest quality of labor
1 31 reasonably available, and that workers working on public
1 32 improvements be compensated according to the real value of the
1 33 services they perform. It is the policy of this state that the
1 34 wages of workers working on public improvements should be at
1 35 least equal to the prevailing wage rates paid for similar work
2 1 by responsible contractors in the community as a whole in order
2 2 to accomplish all of the following:
2 3 1. Protect workers and their contractors and subcontractors
2 4 from the effects of serious and unfair competition resulting
2 5 from wage levels detrimental to efficiency and well=being.
2 6 2. Ensure that contractors compete with one another
2 7 on the basis of the ability to perform work competently
2 8 and efficiently while maintaining community=established
2 9 compensation standards.
2 10 3. Recognize that local participation in public
2 11 improvements and family wage income and benefits are essential
2 12 to the protection of community standards.
2 13 4. Encourage training and education of workers to industry
2 14 skills standards.
2 15 5. Encourage contractors and subcontractors to use funds
2 16 allocated for employee fringe benefits for the actual purchase
2 17 of those benefits.
2 18 Sec. 5. NEW SECTION. 91F.3 Definitions.
2 19 As used in this chapter, unless the context otherwise
2 20 requires:
2 21 1. "Commissioner" means the labor commissioner appointed
2 22 pursuant to section 91.2.
2 23 2. "Contractor" or "subcontractor" means a person who
2 24 undertakes, offers to undertake, purports to have the capacity
2 25 to undertake, or submits a bid, individually or through others,
2 26 to engage in a public improvement.
2 27 3. "Custom fabrication" means the fabrication of plumbing,
2 28 heating, cooling, ventilation, architectural systems,
2 29 structural systems, exhaust duct systems, or mechanical
2 30 insulation.
2 31 4. "Division" means the division of labor of the department
2 32 of workforce development.
2 33 5. a. "Fringe benefits" means the following for the
2 34 provision or purchase of any of the benefits enumerated in
2 35 paragraph "b":
3 1 (1) The contribution irrevocably made by a contractor or
3 2 subcontractor to a trustee or to a third person pursuant to a
3 3 plan, fund, or program.
3 4 (2) The costs to the contractor or subcontractor which
3 5 may be reasonably anticipated in providing benefits to
3 6 workers pursuant to an enforceable commitment to carry out a
3 7 financially responsible plan or program, given in writing to
3 8 the workers affected.
3 9 b. (1) Medical or hospital care.
3 10 (2) Pensions or annuities on retirement or death.
3 11 (3) Supplemental unemployment benefits.
3 12 (4) Life insurance.
3 13 (5) Disability and sickness insurance.
3 14 (6) Accident insurance for nonwork=related accidents.
3 15 (7) Vacation or holiday pay.
3 16 (8) Defraying costs of apprenticeship programs approved by
3 17 and registered with the United States department of labor's
3 18 office of apprenticeship.
3 19 6. "Interested party" means any of the following:
3 20 a. A contractor who submits a bid for the purpose of
3 21 securing the award of a contract for a public improvement.
3 22 b. A subcontractor of a contractor mentioned in a bid
3 23 referred to in paragraph "a".
3 24 c. A worker employed by a contractor or subcontractor
3 25 described in either paragraph "a" or "b".
3 26 d. A labor organization that represents workers engaged
3 27 in the same craft or classification as workers employed by a
3 28 contractor or subcontractor described in either paragraph "a"
3 29 or "b" and that exists, in whole or in part, for the purpose
3 30 of negotiating with employers concerning the wages, hours, or
3 31 terms and conditions of employment of employees.
3 32 e. A joint labor=management committee established pursuant
3 33 to the federal Labor Management Cooperation Act of 1978, 29
3 34 U.S.C. {175a.
3 35 7. "Locality" means a county of this state.
4 1 8. "Maintenance work" means the repair of existing public
4 2 improvements when the size, type, or extent of the public
4 3 improvement is not changed or increased.
4 4 9. "Prevailing wage rate" means the hourly wage plus
4 5 fringe benefits, which the commissioner determines prevails in
4 6 accordance with this chapter, including all of the following:
4 7 a. Apprentice ratios and the prevailing apprentice pay
4 8 levels for each craft, classification, or type of worker which
4 9 the commissioner determines prevails in accordance with section
4 10 91F.5.
4 11 b. A prevailing rate for overtime pay for work in excess
4 12 of the normal prevailing workday and for weekend overtime pay
4 13 for each craft, classification, or type of worker, including
4 14 apprentices.
4 15 c. Holiday pay for holidays that prevail in the locality in
4 16 which the work is being performed.
4 17 10. "Public body" means the state and any of its political
4 18 subdivisions, including but not limited to a county, city,
4 19 township, school district, state board of regents, and public
4 20 utility. For the purposes of this chapter, "public utility"
4 21 includes municipally owned utilities and municipally owned
4 22 waterworks.
4 23 11. a. "Public improvement" means any of the following that
4 24 meets the criteria set out in paragraphs "b" and "c":
4 25 (1) Construction, alteration, reconstruction, repair,
4 26 rehabilitation, refinishing, refurbishing, remodeling,
4 27 renovation, custom fabricating, maintenance, landscaping,
4 28 improving, moving, wrecking, painting, decorating, or
4 29 demolishing of, or adding to or subtracting from any building,
4 30 structure, highway, road, street, bridge, alley, sewer, ditch,
4 31 sewage disposal plant, waterworks, parking facility, railroad,
4 32 excavation or other structure, project, development, or
4 33 improvement, or any part thereof undertaken by a public body,
4 34 including any of the following related activities:
4 35 (a) The erection of scaffolding or other structures or
5 1 works.
5 2 (b) The maintenance, repair, assembly, or disassembly of
5 3 equipment.
5 4 (c) The testing of materials.
5 5 (d) The hauling of refuse from a site to an outside disposal
5 6 location.
5 7 (e) The cleaning of grounds or structures.
5 8 (f) The addition to or fabrication into any structure,
5 9 project, development, or improvement of any material or article
5 10 of merchandise undertaken by a public body.
5 11 (2) The preparation and removal of roadway construction
5 12 zones, lane closures, flagging, or traffic diversions
5 13 undertaken by a public body.
5 14 (3) The installation, repair, maintenance, or calibration
5 15 of monitoring equipment for underground storage tanks
5 16 undertaken by a public body.
5 17 (4) Work that is performed on any property or premises
5 18 dedicated exclusively or nearly so to the completion of a
5 19 public improvement, and transportation of supplies, material,
5 20 and equipment to or from the property or premises undertaken
5 21 by a public body.
5 22 b. Work on the public improvement is performed under public
5 23 supervision or direction, and the work is financed wholly or
5 24 in part from public funds, or if at the time of commencement
5 25 of the public improvement all of the following conditions with
5 26 respect to the public improvement are met:
5 27 (1) Not less than fifty=five percent of the structure is
5 28 leased by a public body, or is subject to an agreement to be
5 29 subsequently leased by a public body.
5 30 (2) The portion of the structure that is leased or subject
5 31 to an agreement to be subsequently leased by a public body
5 32 measures more than twenty thousand square feet.
5 33 c. The public improvement has an estimated total cost that
5 34 exceeds twenty=five thousand dollars.
5 35 12. "Worker" means an individual who performs any
6 1 labor or service for a contractor or subcontractor on a
6 2 public improvement but does not include an individual when
6 3 transporting a seller, supplier, manufacturer, or processor of
6 4 materials or equipment. The individual is deemed an employee
6 5 of a contractor or subcontractor unless all of the following
6 6 apply:
6 7 a. The individual provides labor or services free from the
6 8 direction or control over the means and manner of providing the
6 9 labor or services, subject only to the right of the person for
6 10 whom the labor or services are provided to specify the desired
6 11 results.
6 12 b. The individual providing the labor or services is
6 13 responsible for obtaining business registrations or licenses
6 14 required by state law or local ordinance to provide the labor
6 15 or services.
6 16 c. The individual providing the labor or services furnishes
6 17 the tools and equipment necessary to provide the labor or
6 18 services.
6 19 d. The individual providing the labor or services has the
6 20 authority to hire and fire employees to perform the labor or
6 21 services.
6 22 e. Payment for the labor or services is made upon
6 23 completion of the performance of specific portions of a public
6 24 improvement, or is made on the basis of a periodic retainer.
6 25 f. The individual providing the labor or services represents
6 26 to the public that the labor or services are to be provided
6 27 by an independently established business. An individual is
6 28 engaged in an independently established business when four or
6 29 more of the following circumstances exist:
6 30 (1) Labor or services are primarily performed at a location
6 31 separate from the individual's residence or in a specified
6 32 portion of the residence that is set aside for performing labor
6 33 or services.
6 34 (2) Commercial advertising or business cards are purchased
6 35 by the individual, or the individual is a member of a trade or
7 1 professional association.
7 2 (3) Telephone or electronic mail listings used by the
7 3 individual for the labor or services are different from the
7 4 individual's personal listings.
7 5 (4) Labor or services are performed only pursuant to a
7 6 written contract.
7 7 (5) Labor or services are performed for two or more persons
7 8 or entities within a period of one year.
7 9 (6) The individual assumes financial responsibility
7 10 for errors and omissions in the performance of the labor or
7 11 services as evidenced by insurance, performance bonds, and
7 12 warranties relating to the labor or services provided.
7 13 Sec. 6. NEW SECTION. 91F.4 Administration.
7 14 The commissioner and the division shall administer this
7 15 chapter.
7 16 Sec. 7. NEW SECTION. 91F.5 Determination of prevailing
7 17 wages.
7 18 1. The commissioner shall determine annually and publish,
7 19 on the first business day of July, the prevailing wage rates
7 20 by locality for each craft, classification, or type of worker
7 21 needed to perform work on public improvements. The rates shall
7 22 be conclusive for one year from the date of publication unless
7 23 superseded within the one year by a later publication of the
7 24 commissioner, or for a longer period as provided in subsection
7 25 5.
7 26 2. The commissioner shall announce all prevailing wage rate
7 27 determinations by locality and give notice by posting them
7 28 on the portion of the department of workforce development's
7 29 internet site related to the division. A printed version of
7 30 the prevailing wage rates for the state shall be available to
7 31 the public upon request to the division.
7 32 3. The public body awarding any contract for a public
7 33 improvement, or otherwise undertaking any public improvement,
7 34 shall obtain from the internet site the prevailing wage rate
7 35 in the locality in which work on the public improvement is
8 1 to be performed for each craft, classification, or type of
8 2 worker needed to perform work on the public improvement.
8 3 After a public improvement contract is awarded, or a public
8 4 improvement is otherwise undertaken, the prevailing wage
8 5 rate published by the commissioner and stated in the public
8 6 body's public improvement procurement documents shall remain
8 7 in effect throughout the duration of the public improvement
8 8 unless superseded by a later determination and publication by
8 9 the commissioner, or unless multiyear prevailing wage rates
8 10 have been published by the commissioner at the time the public
8 11 improvement procurement documents were released.
8 12 4. a. In determining the annual prevailing wage rate
8 13 for any craft, classification, or type of worker, the
8 14 commissioner shall ascertain and consider the applicable
8 15 wage rates and fringe benefits established by collective
8 16 bargaining agreements, the prevailing wage rate determinations
8 17 that may exist for federal public improvements within the
8 18 locality and other data obtained by the department during any
8 19 prevailing wage rate survey of contractors who participate in
8 20 an apprenticeship program approved by and registered with the
8 21 United States department of labor's office of apprenticeship,
8 22 who provide health insurance and retirement benefits for their
8 23 workers, and who are registered with the division. Based
8 24 upon these considerations, the commissioner shall calculate
8 25 the prevailing wage rates based on the wage rate plus fringe
8 26 benefits most often occurring for each craft, classification,
8 27 or other type of worker within each locality.
8 28 b. The minimum annual prevailing wage rate determination
8 29 established by the department shall not be lower than the
8 30 prevailing wage rate determination that may exist for federal
8 31 public improvements within the locality and in the nearest
8 32 labor market area.
8 33 c. None of the fringe benefits enumerated in this chapter
8 34 may be considered in the determination of prevailing wage
8 35 rates if the contractor or subcontractor is required by other
9 1 federal, state, or local law to provide such fringe benefits.
9 2 5. If the commissioner determines that the prevailing
9 3 wage rate for any craft, classification, or type of worker
9 4 is the rate established by a collective bargaining agreement
9 5 applicable in the locality, the commissioner may adopt that
9 6 rate by reference and that determination shall be effective
9 7 for the life of the agreement or until the commissioner adopts
9 8 another rate.
9 9 6. a. At any time within fifteen days after the division
9 10 has published on the department of workforce development's
9 11 internet site the annual prevailing wage rates for each
9 12 classification, craft, or other type of worker in the locality,
9 13 any interested person affected may object to the determination
9 14 or the part of the determination as the interested person
9 15 may deem objectionable by filing a written notice with the
9 16 commissioner by restricted certified mail as defined in
9 17 section 618.15. When objecting to a prevailing wage rate
9 18 determination, the interested person shall submit, as a
9 19 part of the written notice, the prevailing wage rate the
9 20 interested person believes to be the correct prevailing wage
9 21 rate determination, stating the specific grounds to support
9 22 that position. Upon receipt of the notice of objection, the
9 23 commissioner shall reconsider the determination and shall
9 24 affirm or modify the determination and reply in writing by
9 25 restricted certified mail to the interested person within
9 26 fifteen days from the date of the receipt of the notice of
9 27 objection. Any modification to the prevailing wage rate
9 28 determination shall be effective on the date the modification
9 29 is published by the commissioner.
9 30 b. If the commissioner declines to modify the determination,
9 31 within ten days upon receiving receipt of the commissioner's
9 32 decision, the interested person affected may submit in writing
9 33 the objection to the division by restricted certified mail,
9 34 stating the specified grounds of the objection. The department
9 35 of inspections and appeals shall be notified of the objection
10 1 and set a date for a hearing before an administrative law judge
10 2 on the objection, after giving notice by restricted certified
10 3 mail to the interested person and the division at least ten
10 4 days before the date of the hearing of the time and place of
10 5 the hearing. The hearing shall be held within forty=five days
10 6 after the objection is filed, and shall not be postponed or
10 7 reset for a later date except upon the consent, in writing, of
10 8 the interested person and the division.
10 9 7. The party requesting a hearing shall have the burden of
10 10 establishing that the annual prevailing wage rate determination
10 11 for that locality was not determined in accordance with this
10 12 chapter. If the party requesting a hearing under this section
10 13 objects to the commissioner's failure to include a craft,
10 14 classification, or type of worker within the annual prevailing
10 15 wage rate determination in the locality, the objector shall
10 16 have the burden of establishing that there is no existing
10 17 prevailing wage rate classification for the particular craft,
10 18 classification, or type of worker in any of the localities
10 19 under consideration.
10 20 8. The administrative law judge may in the administrative
10 21 law judge's discretion hear each written objection filed
10 22 separately or consolidate for hearing any one or more written
10 23 objections filed with the division. At the hearing, the
10 24 division shall introduce into evidence the investigation it
10 25 instituted which formed the basis of its determination, and the
10 26 division or any interested objectors may introduce evidence
10 27 that is material to the determination. The administrative
10 28 law judge shall rule upon each written objection and make a
10 29 final determination, as the administrative law judge believes
10 30 the evidence warrants, and promptly serve a copy of the final
10 31 determination by personal service or restricted certified mail
10 32 on all parties to the proceedings. The administrative law
10 33 judge shall render a final determination within thirty days
10 34 after the conclusion of the hearing.
10 35 9. If proceedings to review judicially the final
11 1 determination of the administrative law judge are not
11 2 instituted as provided in this section, the determination
11 3 shall be final and binding. The provisions of section 17A.19
11 4 shall apply to and govern all proceedings. Appeals from all
11 5 final orders and judgments entered by the court in review of
11 6 the final determination of the administrative law judge may be
11 7 taken by any party to the action. In all reviews or appeals
11 8 under this chapter, the attorney general shall represent the
11 9 division and defend its determination.
11 10 10. This section does not give reason or provide cause for
11 11 an injunction to halt or delay any public improvement.
11 12 Sec. 8. NEW SECTION. 91F.6 Payment of prevailing wages
11 13 required.
11 14 1. Contractors and subcontractors engaged in a public
11 15 improvement shall pay not less than the current specified
11 16 prevailing wage rates to all of their workers engaged in the
11 17 public improvement. However, this chapter does not prohibit
11 18 the payment of more than the prevailing wage rate to any
11 19 workers engaged in a public improvement.
11 20 2. All contractors and subcontractors required to pay the
11 21 prevailing wage rate under this chapter shall pay the wages
11 22 in legal tender, without any deduction for food, sleeping
11 23 accommodations, transportation, use of tools or safety
11 24 equipment, vehicle or equipment rental, or any other thing of
11 25 any kind or description.
11 26 Sec. 9. NEW SECTION. 91F.7 Requirements for public
11 27 improvements.
11 28 1. The public body awarding a contract for a public
11 29 improvement or otherwise undertaking a public improvement shall
11 30 specify in the call for bids for the contract that this chapter
11 31 applies to the public improvement.
11 32 2. If a public improvement requires the payment of
11 33 prevailing wage rates, the public body shall require the
11 34 contractor to execute a written instrument that not less
11 35 than the prevailing wage rate shall be paid to all workers
12 1 performing work on the public improvement. The written
12 2 instrument shall also contain a provision that if it is
12 3 found that any of the contractor's workers engaged in the
12 4 public improvement has been paid at a wage rate less than the
12 5 prevailing wage rate required by this chapter, the public body
12 6 may terminate the contractor's right to proceed with the work
12 7 and the contractor and its sureties shall be liable to the
12 8 public body for any excess costs occasioned by the failure to
12 9 pay the prevailing wage rate. The written instrument shall
12 10 have attached a list of the specified prevailing wage rates
12 11 for all crafts, classifications, or types of workers in the
12 12 locality for each worker needed to be included in the contract
12 13 for the public improvement.
12 14 3. If a contract is let for a public improvement requiring
12 15 the payment of prevailing wage rates, the public body
12 16 awarding the contract shall cause to be inserted in the public
12 17 improvement specifications and contract a stipulation that not
12 18 less than the prevailing wage rate shall be paid to all workers
12 19 performing work under the contract. The contract shall also
12 20 contain a provision to the effect that if it is found that any
12 21 of the contractor's workers engaged in the public improvement
12 22 has been paid at a wage rate less than the prevailing wage rate
12 23 required by this chapter, the public body may terminate the
12 24 contractor's right to proceed with the work and the contractor
12 25 and its sureties shall be liable to the public body for any
12 26 excess costs occasioned by the failure to pay the prevailing
12 27 wage rate. All bid specifications shall list the specified
12 28 prevailing wage rates for all crafts, classifications, or
12 29 types of workers in the locality for each worker needed to be
12 30 included in the contract.
12 31 4. If a public improvement requires the payment of
12 32 prevailing wage rates, the contractor shall require any
12 33 subcontractors engaged by the contractor on the public
12 34 improvement to execute a written instrument that not less
12 35 than the prevailing wage rates shall be paid to all workers
13 1 performing work on the public improvement. The written
13 2 instrument shall also contain a provision that if it is
13 3 found that any of the subcontractor's workers engaged in the
13 4 public improvement has been paid at a wage rate less than the
13 5 prevailing wage rate required by this chapter, the public body
13 6 may terminate the subcontractor's right to proceed with the
13 7 work and the subcontractor and its sureties shall be liable to
13 8 the public body for any excess costs occasioned by the failure
13 9 to pay the prevailing wage rate. The written instrument shall
13 10 have attached a list of the specified prevailing wage rates
13 11 for all crafts, classifications, or types of workers in the
13 12 locality for each worker needed to be included in the contract.
13 13 5. If a subcontract is let for a public improvement
13 14 requiring the payment of the prevailing wage rate, the
13 15 contractor to whom the contract is awarded shall insert
13 16 into the subcontract and into the public improvement project
13 17 specifications for each subcontract a written stipulation that
13 18 not less than the prevailing wage rate shall be paid to all
13 19 workers performing work under the subcontract. A subcontractor
13 20 shall insert into each lower=tiered subcontract a stipulation
13 21 that not less than the prevailing wage rate shall be paid
13 22 to all workers performing work under the subcontract. The
13 23 subcontract shall also contain a provision that if it is
13 24 found that any subcontractor's workers engaged in the public
13 25 improvement have been paid at a wage rate less than the
13 26 prevailing wage rate required by this chapter, the public body
13 27 may terminate the subcontractor's right to proceed with the
13 28 work and the subcontractor and its sureties shall be liable to
13 29 the public body for any excess costs occasioned by the failure
13 30 to pay the prevailing wage rate. All bid specifications shall
13 31 list the specified prevailing wage rates for all crafts,
13 32 classifications, or types of workers in the locality for each
13 33 worker needed to be included in the subcontract.
13 34 6. A contractor or subcontractor engaging in a public
13 35 improvement shall submit a performance bond in an amount
14 1 determined by the public body which bond shall include a
14 2 provision that will guarantee the payment of the prevailing
14 3 wage rates as required by the contract.
14 4 7. Before final payment is made by or on behalf of a public
14 5 body of any sum or sums due on a public improvement, the
14 6 treasurer of the public body or other officer or person charged
14 7 with the custody and disbursement of the funds of the public
14 8 body shall require the contractor and subcontractor to file a
14 9 written statement with the public body, in a form satisfactory
14 10 to the division, certifying to the amounts then due and owing
14 11 from the contractor and subcontractor to any and all workers
14 12 for wages due on account of the public improvement, setting
14 13 forth the names of the persons whose wages are unpaid and
14 14 the amount due to each respectively. The statement shall be
14 15 verified by the oath of the contractor or subcontractor, as the
14 16 case may be, that the contractor or subcontractor has read the
14 17 statement certified by the contractor or subcontractor, knows
14 18 the contents, and that the statement is true in accordance with
14 19 the contractor's or subcontractor's own knowledge. However,
14 20 this chapter shall not impair the right of a contractor to
14 21 receive final payment from a public body because of the failure
14 22 of a subcontractor to comply with provisions of this chapter.
14 23 The treasurer of the public body or other officer or person
14 24 charged with the custody and disbursement of the funds of the
14 25 public body shall withhold the amount, if any, listed on the
14 26 verified statement filed pursuant to this section for the
14 27 benefit of the worker whose wages are unpaid as shown by the
14 28 verified statement filed by the contractor or subcontractor,
14 29 and the public body shall pay directly to any worker the amount
14 30 shown by the statement to be due to the worker for the wages.
14 31 Payment shall discharge the obligation of the contractor or
14 32 subcontractor to the person receiving the payment to the extent
14 33 of the amount of the payment.
14 34 8. The public body awarding a contract for a public
14 35 improvement or otherwise undertaking a public improvement shall
15 1 notify the commissioner in writing, on a form prescribed by
15 2 the commissioner, if a contract subject to the provisions of
15 3 this chapter has been awarded. The public body shall file
15 4 the notification with the commissioner within thirty days
15 5 after the contract is awarded or before commencement of the
15 6 public improvement, and shall include a list of all first=tier
15 7 subcontractors.
15 8 Sec. 10. NEW SECTION. 91F.8 Federal public improvements
15 9 ==== not applicable.
15 10 The provisions of this chapter shall not be applicable
15 11 to public improvements financed entirely by federal funds
15 12 which require a prevailing wage rate determination by the
15 13 United States department of labor. However, unless a federal
15 14 provision applies, if a public improvement is financed in part
15 15 by a public body and in part by federal funds, the higher of the
15 16 prevailing wage rates shall prevail for the public improvement.
15 17 Sec. 11. NEW SECTION. 91F.9 Records required.
15 18 1. While participating in a public improvement, the
15 19 contractor and each subcontractor shall do all of the
15 20 following:
15 21 a. Make and keep, for a period of not less than three years,
15 22 accurate records of all workers employed by the contractor or
15 23 subcontractor on the public improvement. The records shall
15 24 include each worker's name, address, telephone number when
15 25 available, social security number, trade classification, the
15 26 hourly wages paid in each pay period, the number of hours
15 27 worked each day, and the starting and ending times of work each
15 28 day.
15 29 b. Submit weekly a certified payroll to the public body
15 30 in charge of the public improvement. The certified payroll
15 31 shall consist of a complete copy of the records identified in
15 32 paragraph "a". The certified payroll shall be accompanied by a
15 33 statement signed by the contractor or subcontractor which avers
15 34 that the records are true and accurate and the hourly wages
15 35 paid to each worker are not less than the prevailing wage rate
16 1 required by this chapter.
16 2 2. The public body in charge of the public improvement
16 3 shall keep the records submitted in accordance with subsection
16 4 1, paragraph "b", for a period of not less than three years.
16 5 The records shall be considered public records and be made
16 6 available in accordance with chapter 22. Personal information
16 7 submitted in accordance with subsection 1, paragraph "a",
16 8 including names, addresses, social security numbers, telephone
16 9 numbers, and other identifying information shall remain
16 10 confidential and shall not be made public.
16 11 3. The contractor and each subcontractor shall make
16 12 available for inspection the records identified in subsection
16 13 1, paragraph "a", to the public body in charge of the public
16 14 improvement, its officers and agents, and to the division.
16 15 4. For the purpose of verifying the accuracy of the records
16 16 submitted pursuant to this section, the contractor and each
16 17 subcontractor shall make its workers available at the site of
16 18 the public improvement for interview by the public body in
16 19 charge of the public improvement, its officers and agents, and
16 20 the division.
16 21 5. Contractors and subcontractors performing work on public
16 22 improvements subject to this chapter shall post the prevailing
16 23 wage rates for each craft, classification, or type of workers
16 24 involved in the public improvement in a prominent and easily
16 25 accessible place at the site of the public improvement or at
16 26 the place or places used by the contractor or subcontractor to
16 27 pay workers their wages.
16 28 Sec. 12. NEW SECTION. 91F.10 Powers of commissioner.
16 29 The commissioner shall do all of the following:
16 30 1. Inquire diligently about any complaint of a violation of
16 31 this chapter, institute actions for penalties prescribed, and
16 32 enforce generally the provisions of this chapter.
16 33 2. Sue for injunctive relief against the awarding of a
16 34 contract, the undertaking of a public improvement, or the
16 35 continuation of a public improvement when the prevailing wage
17 1 rate requirements of this chapter have not been met.
17 2 3. Investigate and ascertain the wages of workers engaged in
17 3 any public improvement in this state.
17 4 4. a. Enter and inspect the place of business or employment
17 5 of a contractor, subcontractor, or workers employed on a public
17 6 improvement in this state, for the purpose of examining and
17 7 inspecting books, registers, payrolls, and other records of a
17 8 contractor or subcontractor that in any way relate to or have a
17 9 bearing upon the question of wages, hours, and other conditions
17 10 of employment of workers covered under this chapter.
17 11 b. Copy the books, registers, payrolls, and other
17 12 records as the commissioner or the commissioner's authorized
17 13 representative deems necessary or appropriate.
17 14 c. Question the workers for the purpose of ascertaining
17 15 whether the provisions of this chapter have been and are being
17 16 complied with.
17 17 d. Administer oaths, take or cause to be taken depositions
17 18 of witnesses, and require by subpoena the attendance and
17 19 testimony of witnesses and the production of all books,
17 20 registers, payrolls, and other evidence relative to the matter
17 21 under investigation or hearing.
17 22 5. Require from a contractor or subcontractor full and
17 23 correct statements in writing, including sworn statements,
17 24 with respect to wages, hours, names, addresses, and other
17 25 information pertaining to its workers and their employment,
17 26 as the commissioner or the commissioner's authorized
17 27 representative may deem necessary or appropriate.
17 28 6. Require a contractor or subcontractor to file, within
17 29 ten days of receipt of a request, any records enumerated in
17 30 subsection 4, sworn as to their validity and accuracy as
17 31 required by subsection 5. If the contractor or subcontractor
17 32 fails to provide the requested records within ten days, the
17 33 commissioner may direct, within fifteen days after the end
17 34 of the ten=day period, that the fiscal or financial officer
17 35 charged with the custody and disbursements of the funds of the
18 1 public body, which contracted for construction of the public
18 2 improvement or undertook the public improvement, to immediately
18 3 withhold from payment to the contractor or subcontractor
18 4 up to twenty=five percent of the amount to be paid to the
18 5 contractor or subcontractor under the terms of the contract
18 6 or written instrument under which the public improvement is
18 7 being performed. The amount withheld shall be immediately
18 8 released upon receipt by the public body of a notice from
18 9 the commissioner indicating that the request for records as
18 10 required by this section has been satisfied.
18 11 7. If a contractor or subcontractor fails to provide
18 12 requested records in accordance with subsection 6 within ten
18 13 days, direct, within fifteen days after the end of the ten=day
18 14 period, the fiscal or financial officer charged with the
18 15 custody and disbursements of the funds of the public body,
18 16 which contracted for construction of the public improvement or
18 17 undertook the public improvement, to pay directly to workers
18 18 employed by the contractor or subcontractor from the amount
18 19 withheld from the contractor or subcontractor pursuant to
18 20 subsection 6 any prevailing wage rates found to be due and
18 21 payable to the workers.
18 22 8. Contract with a person registered as a public accountant
18 23 under chapter 542 to conduct an audit of a contractor,
18 24 subcontractor, or public body.
18 25 Sec. 13. NEW SECTION. 91F.11 Notice of violations.
18 26 1. For purposes of this section:
18 27 a. "Accurate records" means the payroll records required
18 28 to be submitted to the public body in charge of the public
18 29 improvement by section 91F.9. "Accurate records" also means the
18 30 hourly rate of contribution and costs paid for fringe benefits
18 31 and whether the contributions and costs of the fringe benefits
18 32 were paid into a fund or paid directly to the worker.
18 33 b. "Decision" means a determination by the division that a
18 34 single violation of this chapter has occurred, warranting the
18 35 commissioner to issue a notice of violation to a contractor or
19 1 subcontractor.
19 2 c. "Notice of second violation" is a formal written notice
19 3 issued by the division advising a contractor or subcontractor
19 4 that a second or subsequent violation has occurred within three
19 5 years from the date of the notice of a first violation.
19 6 d. "Notice of violation" means a formal written notice
19 7 issued by the division to a contractor or subcontractor
19 8 that the division has made a decision that the contractor or
19 9 subcontractor has violated this chapter.
19 10 e. "Violation" means that a contractor or subcontractor has
19 11 done one of the following:
19 12 (1) Failed or refused to pay the prevailing wage rate to one
19 13 or more workers as required by this chapter.
19 14 (2) Failed to keep accurate records as required by this
19 15 chapter.
19 16 (3) Failed to produce for the division accurate records or
19 17 produced records not in compliance with this chapter.
19 18 (4) Refused to submit records or testimony to the division
19 19 in response to a subpoena issued in accordance with this
19 20 chapter.
19 21 (5) Refused to comply with the certified payroll provision
19 22 of section 91F.9.
19 23 (6) Refused the division access, at any reasonable hour at
19 24 a location within the state, to inspect the contractor's or
19 25 subcontractor's records as required by this chapter.
19 26 (7) Failed to insert into each subcontract or lower=tiered
19 27 subcontract and into the public improvement specifications
19 28 for each subcontract or lower=tiered subcontract or provide a
19 29 written instrument if no contract exists, a written stipulation
19 30 that not less than the prevailing wage rate be paid as required
19 31 by this chapter, and a statement that if it is found that a
19 32 subcontractor's workers engaged in the public improvement have
19 33 been paid at a rate of wages less than the prevailing wage rate
19 34 required to be paid by the contract, the public body shall
19 35 terminate the subcontractor's right to proceed with the work.
20 1 (8) Failed to obtain a bond in the proper amount that
20 2 guarantees the payment of the prevailing wage rates required in
20 3 the contract.
20 4 (9) Failed to post the prevailing wage rates as required by
20 5 this chapter.
20 6 2. After receipt of a complaint or on the division's
20 7 initiative, the commissioner shall review the investigative
20 8 file to determine whether a violation has occurred for
20 9 which the contractor or subcontractor must be given notice.
20 10 All information and observations made during an audit or
20 11 investigation shall be considered and shall constitute the
20 12 basis for the division's decision that this chapter has
20 13 been violated and that a notice of violation is required
20 14 to be issued. The notice of violation shall identify the
20 15 specific violation and the amount of moneys estimated due the
20 16 division and in controversy based on reasons contained in the
20 17 investigative file.
20 18 3. In making a decision that a contractor or subcontractor
20 19 has failed to allow the commissioner access to accurate
20 20 records, the commissioner shall rely on the information
20 21 contained in the investigative file, the certified payroll
20 22 records submitted to the public body in charge of the public
20 23 improvement or any other information, and shall assess a
20 24 separate violation for each day worked by each worker on the
20 25 public improvement. Each decision of a separate violation
20 26 shall be listed in the notice of violation.
20 27 4. In determining that this chapter has been violated and
20 28 that the issuance of a notice of violation is required, the
20 29 commissioner shall base the decision on one or any combination
20 30 of the following reasons:
20 31 a. The severity of the violation, which includes the
20 32 following:
20 33 (1) The amount of wages that are determined to be underpaid
20 34 pursuant to this chapter.
20 35 (2) The activity or conduct complained of that violates the
21 1 requirements of this chapter and was not merely a technical,
21 2 nonsubstantive error. Examples of a technical error include
21 3 but are not limited to a mathematical error, bookkeeping error,
21 4 transposition of numbers, or computer or programming error.
21 5 b. The nature and duration of the present violation and the
21 6 prior history of the contractor or subcontractor related to
21 7 this history. The prior history considered shall not exceed
21 8 seven years before the date of the notice of violation.
21 9 c. Whether the contractor or subcontractor submitted
21 10 certified payroll records with the public body in charge of the
21 11 public improvement; whether the contractor or subcontractor
21 12 has kept payroll records and accurate records for three years;
21 13 and whether the contractor or subcontractor produced certified
21 14 payroll records in accordance with section 91F.9.
21 15 d. Whether the contractor or subcontractor has violated any
21 16 other provision of this chapter.
21 17 5. The notices of the first, second, and subsequent
21 18 violations shall be sent by restricted certified mail,
21 19 addressed to the last known address of the contractor or
21 20 subcontractor involved. The notices shall contain a reference
21 21 to the specific provisions of this chapter alleged to have been
21 22 violated, identify the particular public improvement involved,
21 23 identify the conduct complained of, and identify whether the
21 24 notice is a notice of a first, second, or subsequent violation,
21 25 and include a contractor's or subcontractor's statement of
21 26 liabilities.
21 27 Sec. 14. NEW SECTION. 91F.12 Violations ==== remedies and
21 28 penalties.
21 29 1. If the commissioner determines that a public body has
21 30 divided a public improvement into more than one contract for
21 31 the purpose of avoiding compliance with this chapter, the
21 32 commissioner shall issue an order compelling compliance. In
21 33 making a determination whether a public body has divided a
21 34 public improvement into more than one contract for the purpose
21 35 of avoiding compliance with this chapter, the commissioner
22 1 shall consider all of the following:
22 2 a. The physical separation of the public improvement
22 3 structures or work.
22 4 b. The timing of the work on the public improvement phases
22 5 or structures.
22 6 c. The continuity of public improvement contractors and
22 7 subcontractors working on public improvement parts or phases.
22 8 d. The manner in which the public body and the contractor
22 9 and subcontractors administer and implement work on the public
22 10 improvement.
22 11 2. A worker employed by the contractor or subcontractor who
22 12 is paid less than the specified prevailing wage rate under this
22 13 chapter shall have a private right of action for the difference
22 14 between the amount so paid and the specified prevailing wage
22 15 rate, together with costs and reasonable attorney fees as shall
22 16 be allowed by the court.
22 17 3. The contractor or subcontractor shall additionally be
22 18 liable to the division for fifty percent of the amount of
22 19 underpayments and shall be additionally liable to the worker
22 20 for punitive damages in an amount equal to five percent of the
22 21 liability to the division for underpayments for each month
22 22 following the date of payment during which underpayments remain
22 23 unpaid, together with costs and reasonable attorney fees as
22 24 shall be allowed by the court.
22 25 4. If a second or subsequent action to recover underpayments
22 26 is brought against a contractor or subcontractor within a
22 27 three=year period and the contractor or subcontractor is
22 28 found liable for underpayments to a worker, the contractor or
22 29 subcontractor shall be liable to the division for seventy=five
22 30 percent of the amount of underpayments payable as a result of
22 31 the second or subsequent action, additionally liable to the
22 32 worker for ten percent of the amount of the liability to the
22 33 division for underpayments for each month following the date
22 34 of payment during which the underpayments remain unpaid, and
22 35 further liable to the worker for triple the difference between
23 1 the amount so paid to the worker and the specified prevailing
23 2 wage rate required, together with costs and reasonable attorney
23 3 fees as shall be allowed by the court. The three=year period
23 4 begins to run from the date the contractor or subcontractor is
23 5 determined liable for the first violation.
23 6 5. The commissioner and any interested party shall also
23 7 have a right of action on behalf of a worker who has a right of
23 8 action under this chapter. An action brought to recover the
23 9 same shall be deemed to be a suit for wages, and all judgments
23 10 entered in the action shall have the same force and effect as
23 11 other judgments for wages. At the request of a worker employed
23 12 by a contractor or subcontractor who is paid less than the
23 13 prevailing wage rate required by this chapter, the commissioner
23 14 may take an assignment of the wage claim in trust for the
23 15 assigning worker and may bring any legal action necessary to
23 16 collect the claim, and the contractor or subcontractor shall
23 17 be required to pay the expenses of the division incurred in
23 18 collecting the claim.
23 19 6. In circumstances where a worker may not be available to
23 20 receive a payment or judgment, the payment due the worker shall
23 21 revert to the division after one year elapses from the time
23 22 payment was attempted to be made or judgment was rendered.
23 23 7. a. It is a violation of this chapter to do any of the
23 24 following:
23 25 (1) To request or demand, either before or after the worker
23 26 is engaged in a public improvement, that a worker pay back,
23 27 return, donate, contribute, or give any part or all of the
23 28 worker's wages, salary, or thing of value, to any person, upon
23 29 the statement, representation, or understanding that failure to
23 30 comply with the request or demand will prevent the worker from
23 31 procuring or retaining employment.
23 32 (2) To directly or indirectly pay, request, or authorize any
23 33 other person to violate this chapter.
23 34 b. This subsection does not apply to an agent or
23 35 representative of a duly constituted labor organization acting
24 1 in the collection of dues or assessments of the organization.
24 2 8. In addition to other penalties provided under this
24 3 chapter, whoever induces a worker working on a public
24 4 improvement subject to this chapter to give up or forego
24 5 any part of the prevailing wage rates to which the worker
24 6 is entitled under this chapter by threat not to employ
24 7 or by threat of dismissal from employment is guilty of a
24 8 serious misdemeanor. An agreement between the worker and the
24 9 contractor or subcontractor to work for less than the specified
24 10 prevailing wage rate shall not be a defense to criminal
24 11 prosecution.
24 12 9. a. A contract shall not be awarded by a public
24 13 body to a contractor or subcontractor who, on two separate
24 14 occasions within a three=year period, has been determined
24 15 to have violated this chapter, or to any firm, corporation,
24 16 partnership, or association in which the contractor or
24 17 subcontractor has any interest until five years have elapsed
24 18 from the date on which a final determination is rendered
24 19 finding the contractor or subcontractor in violation of this
24 20 chapter.
24 21 b. For the purposes of this subsection, "any interest" means
24 22 an interest in the entity bidding or performing work on the
24 23 public improvement, whether as an owner, partner, officer,
24 24 manager, employee, agent, consultant, or representative. "Any
24 25 interest" includes but is not limited to all instances where the
24 26 barred contractor or subcontractor receives payments, whether
24 27 cash or any other form of compensation, from any entity bidding
24 28 or performing work on the public improvement, or enters into
24 29 a contract with the entity bidding or performing work on the
24 30 public improvement for services performed or to be performed
24 31 under contract that have been or will be assigned or sublet,
24 32 or for vehicles, tools, equipment, or supplies that have been
24 33 or will be sold, rented, or leased during the period from the
24 34 initiation of the barring proceedings until the end of the term
24 35 of the barring period. "Any interest" does not include shares
25 1 held in a publicly traded corporation if the shares were not
25 2 received as compensation after the barring of an entity bidding
25 3 or performing work on a public improvement.
25 4 10. If the division determines that a contractor or
25 5 subcontractor has violated this chapter on two separate
25 6 occasions within a three=year period, the division shall list
25 7 on the department of workforce development's internet site and
25 8 keep on record the name of the contractor or subcontractor and
25 9 give notice by restricted certified mail of the list to any
25 10 public body requesting the list.
25 11 11. Upon a determination that a contractor or subcontractor
25 12 has violated this chapter on two separate occasions within a
25 13 three=year period, the division shall notify the violating
25 14 contractor or subcontractor by restricted certified mail. The
25 15 contractor or subcontractor has ten working days to request of
25 16 the division a hearing before an administrative law judge on
25 17 the alleged violation. Failure to respond within ten working
25 18 days shall result in automatic and immediate barring of the
25 19 violator from work as provided in subsection 9 and placement
25 20 and publication of the violator's name on the department of
25 21 workforce development's internet site as provided in subsection
25 22 10. If the contractor or subcontractor requests a hearing
25 23 within ten working days by restricted certified mail, the
25 24 department of inspections and appeals shall set a hearing
25 25 before an administrative law judge on the alleged violation.
25 26 The hearing shall take place no later than forty=five calendar
25 27 days after the receipt by the division of the request for a
25 28 hearing. An action by an administrative law judge constitutes
25 29 final agency action and is subject to judicial review under
25 30 section 17A.19.
25 31 12. The attorney general shall prosecute the cases
25 32 identified in this section upon complaint by the commissioner
25 33 or by any interested person. In any proceeding brought
25 34 pursuant to this section, the commissioner shall be represented
25 35 by the attorney general.
26 1 13. This section does not give reason or provide cause for
26 2 an injunction to halt or delay any public improvement.
26 3 Sec. 15. NEW SECTION. 91F.13 Apprentices.
26 4 This chapter shall not prevent the employment of apprentices
26 5 upon public improvements. However, an apprentice employed
26 6 on a public improvement must be registered with the United
26 7 States department of labor's office of apprenticeship under
26 8 an apprenticeship program registered with that office, paid
26 9 the proper wages specified in the standards of apprenticeship,
26 10 and engaged only in the trade to which the apprentice is
26 11 registered. If the apprentice is employed on a public
26 12 improvement in a trade to which the apprentice is not
26 13 registered with the United States department of labor's office
26 14 of apprenticeship, the apprentice shall be treated as any other
26 15 worker under this chapter.
26 16 Sec. 16. IMPLEMENTATION OF ACT. Section 25B.2, subsection
26 17 3, shall not apply to this Act.
26 18 Sec. 17. EFFECTIVE DATE. This Act takes effect January 1,
26 19 2016.
26 20 EXPLANATION
26 21 The inclusion of this explanation does not constitute agreement with
26 22 the explanation's substance by the members of the general assembly.
26 23 This bill requires a contractor to pay workers the same
26 24 hourly wage plus fringe benefits for a public improvement
26 25 costing more than $25,000 as prevails in the locality of the
26 26 public improvement. The bill allows the per=hour wage rate to
26 27 be based on what is normally paid in the area by contractors
26 28 for similar projects, and to be adjusted on a yearly basis by
26 29 the department of workforce development.
26 30 The wage rates that the workers must be paid shall also
26 31 include benefits such as medical care, life insurance, overtime
26 32 pay, and vacation and holiday pay. The bill applies to any
26 33 public improvement that receives money from a public body and
26 34 includes most types of public improvements from construction to
26 35 road maintenance to painting to hauling.
27 1 The labor commissioner determines the wage rates for
27 2 specific geographical areas and for specific crafts,
27 3 classifications, and types of workers. This information must
27 4 be posted on the department of workforce development's internet
27 5 site. In determining what the wage rate for a worker is, the
27 6 commissioner may consult collective bargaining agreements, wage
27 7 rate determinations for federal projects in the same area, and
27 8 other information the department may receive from contractors
27 9 who participate in an apprenticeship program approved by the
27 10 federal office of apprenticeship.
27 11 Any person affected by the wage rates has 15 days after the
27 12 department of workforce development has posted the wage rates
27 13 on its internet site to object in writing, stating the specific
27 14 reason for the objection, to the labor commissioner. The
27 15 commissioner must reconsider the determination being objected
27 16 to, and either affirm or modify it within 15 days of receiving
27 17 the objection.
27 18 If the commissioner declines to modify the determination,
27 19 within 10 days, the person affected may submit an objection in
27 20 writing to the division of labor services, stating the specific
27 21 reasons for the objection. A hearing must be set by the
27 22 department of inspections and appeals before an administrative
27 23 law judge within 45 days after the objection is filed. The
27 24 person who filed the objection must show the administrative
27 25 law judge that the wage rate was somehow made in error. The
27 26 division is required to show how it determined the wage
27 27 rate. The administrative law judge must make a decision about
27 28 the wage rate within 30 days and it is considered a final
27 29 determination.
27 30 The bill requires that contractors and subcontractors not
27 31 pay the workers less than the established wage rate but does
27 32 not prohibit them from paying the workers more than the wage
27 33 rate. The wage rate must be paid without any deductions
27 34 such as for food, sleeping quarters, use of tools, or safety
27 35 equipment.
28 1 The bill also requires the public body to monitor the
28 2 contractors and subcontractors to ensure that the wage rate
28 3 is paid. A call for bids must state that the wage rate must
28 4 be included in the bids for the public improvement. All
28 5 bids shall list the specific wage rates for each craft,
28 6 classification, and type of worker needed for the public
28 7 improvement. All contractors and subcontractors are required
28 8 to sign a contract that states they will pay workers the wage
28 9 rate determined by the division. If the contractors and
28 10 subcontractors are found to not be paying the wage rate, the
28 11 contract states that the contractor's or subcontractor's right
28 12 to work on the public improvement and get paid for work already
28 13 done may be terminated.
28 14 Before the contractor or subcontractor receives the final
28 15 payment for the public improvement, the public body overseeing
28 16 the public improvement must certify the payments include proper
28 17 amounts due the workers, and the contractor or subcontractor
28 18 must swear under oath that the records are accurate.
28 19 The bill does not apply to public improvement projects
28 20 funded by the federal government that require federal
28 21 prevailing wage rates. However, unless a federal provision
28 22 applies, if a public improvement project is financed by both a
28 23 state public body and the federal government, then the higher
28 24 of the applicable wage rates shall be paid to the workers.
28 25 The bill also requires that contractors and subcontractors
28 26 keep detailed records for at least three years about the
28 27 workers, the rates paid, and the hours worked for each
28 28 public improvement. The records are public records and must
28 29 be available for inspection. However, workers' personal
28 30 information is not available to the public for inspection.
28 31 During the public improvement, a contractor or subcontractor
28 32 must present a certified weekly payroll to demonstrate that
28 33 the correct and full wage rate is being paid to workers. The
28 34 contractors and subcontractors must make all workers available
28 35 on=site to officials for interviews so that the records'
29 1 accuracy can be checked. Contractors and subcontractors must
29 2 also post the wage rates for each craft, classification, and
29 3 type of worker in a public place where workers can see the
29 4 posting or at the place where they receive their wages.
29 5 The commissioner is given specific powers for investigation,
29 6 enforcement, and penalization. The commissioner may sue to
29 7 prevent a contractor or subcontractor from being awarded
29 8 a contract for a public improvement when the wage rate
29 9 requirements have not been met. The commissioner is given the
29 10 power to withhold payments if a contractor or subcontractor
29 11 does not produce records upon request and to pay the workers
29 12 directly if the contractor or subcontractor continues to refuse
29 13 to provide records.
29 14 After receiving a complaint, the commissioner shall
29 15 investigate whether there has been a violation. If the
29 16 commissioner determines there has been a violation, the
29 17 contractor or subcontractor must be given notice of that
29 18 violation. The notice is a formal written statement from the
29 19 department of workforce development that states the specific
29 20 violation and the amount of money due as a penalty.
29 21 If a public body has divided up a public improvement to
29 22 avoid having to pay the wage rate, the commissioner shall order
29 23 compliance. A worker who is paid less than the wage rate set by
29 24 this law can sue for the difference in payment and collect the
29 25 difference along with costs and attorney fees in court.
29 26 The contractor or subcontractor shall also have to pay the
29 27 division 50 percent of the amount of underpayment and is liable
29 28 to the worker for punitive damages of up to 5 percent of the
29 29 underpayments for each month the underpayment remains unpaid
29 30 plus costs and attorney fees.
29 31 If a second or subsequent action for underpaying a worker
29 32 is brought against a contractor or subcontractor within a
29 33 three=year period and the contractor or subcontractor is
29 34 liable, the contractor or subcontractor shall pay the division
29 35 75 percent of the amount of underpayment, is liable to the
30 1 worker for 10 percent of the penalty for underpayments for each
30 2 month following it that the underpayment remains unpaid, and
30 3 is liable to the worker for triple the difference between the
30 4 amount paid to the worker and the amount due under the wage
30 5 rate set by the commissioner plus costs and attorney fees.
30 6 The commissioner or any interested party has a right of
30 7 action on behalf of any individual who has a right of action
30 8 under the bill. The commissioner may file a lawsuit in trust
30 9 for a worker who assigns the claim and then bring legal action
30 10 to collect the claim. The contractor shall be required to pay
30 11 the expenses for collection of the claim.
30 12 The bill prohibits a person from requesting or demanding
30 13 that a worker pay back, return, donate, contribute, or give
30 14 any part or all of the worker's wages, salary, or thing of
30 15 value, to any person who asserts that failure to comply with
30 16 the request or demand will prevent the worker from procuring
30 17 or retaining employment. The bill prohibits a person from
30 18 paying, requesting, or authorizing any other person to violate
30 19 the requirements of the bill. However, these provisions do
30 20 not apply to authorized labor organization representatives
30 21 collecting dues or assessments.
30 22 In addition to other penalties under the bill, anyone who
30 23 attempts to get a worker to give up any part of compensation
30 24 on a public improvement by threat not to hire or by threat of
30 25 firing is guilty of a serious misdemeanor. Any agreement to
30 26 work for less than the determined wage rate is not a defense to
30 27 criminal prosecution. A serious misdemeanor is punishable by
30 28 confinement for no more than one year and a fine of at least
30 29 $315 but not more than $1,875.
30 30 If a contractor or subcontractor has violated the bill twice
30 31 within a three=year period, the contractor or subcontractor
30 32 or any company or group associated with the contractor or
30 33 subcontractor shall not be given any public improvement work
30 34 for five years. The department of workforce development
30 35 shall keep a list on its internet site of contractors and
31 1 subcontractors who have violated the bill twice within a
31 2 three=year period and notify public bodies by restricted
31 3 certified mail.
31 4 A contractor or subcontractor who has been notified of
31 5 the second violation has 10 days to request a hearing before
31 6 an administrative law judge. A hearing must be held within
31 7 45 days of the request. If no hearing is requested, the
31 8 contractor is barred from receiving public improvement work and
31 9 its name and information is posted on the department's internet
31 10 site.
31 11 Apprentices employed on a public improvement project must
31 12 be registered with the federal office of apprenticeship.
31 13 Apprentices must receive the wages set out in the standards of
31 14 apprenticeship and do only the work specified in the trade to
31 15 which they are apprenticed. An apprentice not registered with
31 16 the federal program shall be paid the wage rate the same as any
31 17 other worker.
31 18 The bill may include a state mandate as defined in Code
31 19 section 25B.3. The bill makes inapplicable Code section 25B.2,
31 20 subsection 3, which would relieve a political subdivision from
31 21 complying with a state mandate if funding for the cost of
31 22 the state mandate is not provided or specified. Therefore,
31 23 political subdivisions are required to comply with any state
31 24 mandate included in the bill.
31 25 The bill takes effect January 1, 2016.
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