GSBE Weekly Update 09/05/2018
AB 1080 Public contracts: bid preferences: employee health care coverage
Existing law imposes various requirements with respect to contracting by public entities. This bill would require a state agency awarding specified contracts to provide a 5% bid preference to that portion of the total bid performed by a bidder or subcontractor if its employees, during the time that they were employed, were covered by credible health care coverage, as defined, during the 12-month period immediately preceding submission of the bid. The bill would establish a procedure for a bidder to claim a bid preference by submitting separate statements from the bidder and each of its qualified listed subcontractors, on a form developed by the Department of General Services with the Department of Industrial Relations, each certifying that it qualifies for the bid preference. The bill would require the bidder and contractors to continue to cover its employees with credible health care coverage, as specified. The bill would impose civil penalties for bidder and contractor violations of those requirements.
AB 1654 Labor Code Private Attorneys General Act of 2004: construction industry
The Labor Code Private Attorneys General Act of 2004 authorizes an aggrieved employee to bring a civil action to recover specified civil penalties that would otherwise be assessed and collected by the Labor and Workforce Development Agency, on behalf of the employee and other current or former employees for the violation of certain provisions affecting employees. The act requires the employee to follow prescribed procedures before bringing an action and establishes alternate procedures for specific categories of violations. The act requires, except as provided, that 75% of the civil penalties recovered by aggrieved employees be distributed to the Labor and Workforce Development Agency for enforcement of labor laws and for education of employers and employees about their rights and responsibilities, and 25% be distributed to the aggrieved employees.
This bill would except from the act an employee in the construction industry, as defined, with respect to work performed under a valid collective bargaining agreement in effect any time before January 1, 2025, that contains certain provisions, including, among others, a grievance and binding arbitration procedure to redress violations that authorizes the arbitrator to award otherwise available remedies. The bill would authorize the exception until the collective bargaining agreement expires or until January 1, 2028, whichever is earlier, and would repeal the bill’s provisions on January 1, 2028.
AB 3018 State contracts: skilled and trained workforce
Existing law authorizes a public entity to require a bidder, contractor, or other entity to use a skilled and trained workforce to complete a contract or project, and requires that the commitment to use a skilled and trained workforce be made in an enforceable agreement that meets specified requirements.
Existing law defines a “skilled and trained workforce” to mean a workforce that meets certain conditions, including specified apprenticeship graduation requirements. Existing law requires at least 30% of the skilled journeypersons employed to perform work on these contracts or projects, on or after January 1, 2017, to be graduates of an apprenticeship program.
Existing law increases that percentage for work performed on or after January 1, 2018, and increases that percentage again for work performed on or after January 1, 2019, but excludes the same set of specified occupations from both of these increased percentage requirements. Existing law requires a contractor, bidder, or other entity to provide to the public entity or other awarding body, on a monthly basis while the project or contract is being performed, a report demonstrating compliance with skilled and trained workforce requirements.
This bill would, for work performed on or after January 1, 2018, clarify that the same set of specified occupations continues to be subject to the current requirement that only 30% of skilled journeypersons employed to perform work on those contracts or projects be graduates of an apprenticeship program. The bill would require the public agency or other awarding body to forward a copy of the monthly report to the Labor Commissioner for issuance of a civil wage and penalty assessment and a copy of the plan, if any, to achieve substantial compliance with skilled and trained workforce requirements and the response to that plan, as prescribed, if the monthly report does not demonstrate compliance with skilled and trained workforce requirements.
The bill would limit the public agency or awarding body to withholding 150% of the value of the monthly billing for a subcontractor that failed to timely submit the required information or did not demonstrate compliance, and would allow the contractor, bidder, or other entity to withhold the same amount from the subcontractor. The bill would require a contractor or subcontractor to pay a civil penalty to the state of not more than $5,000 per month of work performed in violation of the skilled and trained workforce requirements if the Labor Commissioner or his or her designee determines that the contractor or subcontractor failed to use a skilled and trained workforce.
The bill would require a contractor or subcontractor that commits a second or subsequent violation within a 3-year period to pay a civil penalty to the state of not more than $10,000 per month of work performed in violation of the skilled and trained workforce requirements. The bill would require a contractor to obtain a declaration signed under penalty of perjury from the subcontractor that he or she has met the skilled and trained workforce requirements before making the final payment to the subcontractor. The bill would make a contractor or subcontractor who, with the intent to defraud, violates the above-described requirements ineligible to bid on, be awarded, or perform work on a contract for a public works project, as specified. The bill would require the Labor Commissioner to publish on the commissioner’s Internet Web site a list of contractors who are ineligible under these provisions. By expanding the crime of perjury, this bill would impose a state-mandated local program.