2014 -- H 7623

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LC004749

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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A N   A C T

RELATING TO PUBLIC PROPERTY AND WORKS -- LABOR AND PAYMENT OF DEBTS

BY CONTRACTORS

     Introduced By: Representatives Carnevale, DeSimone, Hull, Bennett, and Guthrie

     Date Introduced: February 26, 2014

     Referred To: House Labor

     It is enacted by the General Assembly as follows:

     SECTION 1. Section 37-13-3.1 of the General Laws in Chapter 37-13 entitled "Labor

and Payment of Debts by Contractors" is hereby repealed.

     37-13-3.1. State public works contract apprenticeship requirements. --

Notwithstanding any laws to the contrary, all general contractors and subcontractors who perform

work on any public works contract awarded by the state after passage of this act and valued at one

million dollars ($1,000,000) or more shall employ apprentices required for the performance of the

awarded contract. The number of apprentices shall comply with the apprentice to journeyman

ratio for each trade approved by the apprenticeship council of the department of labor and

training.

     SECTION 2. Chapter 37-13 of the General Laws entitled "Labor and Payment of Debts

by Contractors" is hereby amended by adding thereto the following section:

     37-13-3.2. Public works contract apprenticeship requirements. -- (a) Notwithstanding

any laws to the contrary, all specifications in any invitations to bid in any public works contract

awarded by the state, any municipality or quasi-governmental agency valued at one million

dollars ($1,000,000) or more shall include a requirement that all bidders responding to an

invitation to bid on a public works project shall have an apprenticeship program as defined herein

for all apprenticeable crafts that will be employed on the project at the time of bid, and that no

less than fifteen percent (15%) of the labor hours worked on the project shall be performed by

apprentices in these programs. The provisions of the section shall only apply to contractors and

subcontractors with five (5) or more employees. For purposes of this section, an apprenticeship

program is one that is non-provisionally registered with and approved by the U.S. Department of

Labor in conformance with 29 C.F.R. 29 and 29 C.F.R. 30.

     (b) Upon petition by a contractor in writing, a user agency may lower the fifteen percent

(15%) apprenticeship requirement of this section for a specific project for the following reasons:

     (1) The demonstrated lack of availability of apprentices in specific geographic areas; or

     (2) A written determination by the user agency that compliance is unduly cost

prohibitive; or

     (3) That participating contractors have demonstrated a good faith effort to comply with

the requirements of this section, but have not been able to attain the fifteen percent (15%)

requirement.

     (c) The department of labor and training must provide information and technical

assistance to affected governmental, quasi-governmental agencies, and any contractors awarded

any public works projects relative to their obligations under this statute.

     (d) Any contractor and/or subcontractor awarded a public works contract shall collect and

submit following data for each project covered by this section to the user agency on certified

payroll forms as required by§ 37-13-13:

     (1) The name and dollar value of the project that they are working on;

     (2) The name of each apprentice categorized by trade or craft, their apprentice

registration number, and the number of hours they have worked on the project;

     (3) The name of each journey level worker categorized by trade or craft and the number

of hours they have worked on the project; and

     (4) If applicable, the number, type, and rationale for the exceptions granted.

     (e) The user agency shall withhold the next scheduled payment to any contractor or

subcontractor who does not submit the information required by the provisions of this statute and

shall also notify the director of labor and training of the contractor's noncompliance. The user

agency shall withhold final payment until all of the provisions of this section are complied with.

     (f) The department of labor and training may also impose a penalty of up to five hundred

dollars ($500) for each calendar day of noncompliance with this section, as determined by the

director of labor and training. Insignificant errors and/or omissions shall not be grounds for

imposing a penalty under this subsection.

     (g) Any penalties assessed under this section shall be paid to the department of labor and

training dedicated "prevailing wages enforcement fund."

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     (h) Failure of the contractors and subcontractors required to utilize apprentices or be

exempted shall be considered a material breach of their public works contract and they shall be

subject to any and all penalties as determined in their contract with the user agency.

     (i) For the purposes of this section the term "user agency" shall mean the state,

municipality, or quasi-governmental agency which is responsible for management of a public

works contract awarded to a contractor.

     (j) To the extent that any of the provisions contained in § 37-13-3.2 conflict with the

requirements for federal aid contracts, federal law and regulations shall control.

     SECTION 3. Section 37-13-14.1 of the General Laws in Chapter 37-13 entitled "Labor

and Payment of Debts by Contractors" is hereby amended to read as follows:

     37-13-14.1. Enforcement -- Hearings. -- (a) Before issuing an order or determination,

the director of labor and training shall order a hearing thereon at a time and place to be specified,

and shall give notice thereof, together with a copy of the complaint or the purpose thereof, or a

statement of the facts disclosed upon investigation, which notice shall be served personally or by

mail on any person, firm, or corporation affected thereby. The person, firm, or corporation shall

have an opportunity to be heard in respect to the matters complained of at the time and place

specified in the notice, which time shall be not less than five (5) days from the service of the

notice personally or by mail. The hearing shall be held within ten (10) days from the order of

hearing. The hearing shall be conducted by the director of labor and training or his or her

designee. The hearing officer in the hearing shall be deemed to be acting in a judicial capacity,

and shall have the right to issue subpoenas, administer oaths, and examine witnesses. The

enforcement of a subpoena issued under this section shall be regulated by Rhode Island civil

practice law and rules. The hearing shall be expeditiously conducted and upon such hearing the

hearing officer shall determine the issues raised thereon and shall make a determination and enter

an order within ten (10) days of the close of the hearing, and forthwith serve a copy of the order,

with a notice of the filing thereof, upon the parties to the proceeding, personally or by mail. The

order shall dismiss the charges or direct payment of wages or supplements found to be due,

including interest at the rate of twelve percentum (12%) per annum from the date of the

underpayment to the date of payment, and may direct payment of reasonable attorney's fees and

costs to the complaining party.

      (b) In addition to directing payment of wages or supplements including interest found to

be due, the order shall also require payment of a further sum as a civil penalty in an amount up to

three times the total amount found to be due. Further, if the amount of salary owed to an

employee pursuant to this chapter but not paid to the employee in violation of thereof exceeds

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five thousand dollars ($5,000), it shall constitute a misdemeanor and shall be referred to the office

of the attorney general. The misdemeanor shall be punishable for a period of not more than one

year in prison and/or fined not more than one thousand dollars ($1,000). In assessing the amount

of the penalty, due consideration shall be given to the size of the employer's business, the good

faith of the employer, the gravity of the violation, the history of previous violations and the

failure to comply with recordkeeping or other nonwage requirements. The surety of the person,

firm, or corporation found to be in violation of the provisions of this chapter shall be bound to

pay any penalties assessed on such person, firm, or corporation. The penalty shall be paid to the

department of labor and training for deposit in the state treasury; provided, however, it is hereby

provided that the general treasurer shall establish a dedicated "prevailing wages enforcement

fund" for the purpose of depositing the penalties paid as provided herein. There is hereby

appropriated to the annual budget of the department of labor and training the amount of the fund

collected annually under this section, to be used at the direction of the director of labor and

training for the sole purpose of enforcing prevailing wage rates as provided in this chapter.

      (c) For the purposes of this chapter, each day or part thereof of violation of any provision

of this chapter by a person, firm, or corporation, whether the violation is continuous or

intermittent, shall constitute a separate and succeeding violation.

      (d) In addition to the above, any person, firm, or corporation found in violation of any of

the provisions of this chapter by the director of labor and training, an awarding authority, or the

hearing officer, shall be ineligible to bid on or be awarded work by an awarding authority or

perform any such work for a period of no less than eighteen (18) months and no more than thirty-

six (36) months from the date of the order entered by the hearing officer. Once a person, firm, or

corporation is found to be in violation of this chapter, all pending bids with any awarding

authority shall be revoked, and any bid awarded by an awarding authority prior to the

commencement of the work shall also be revoked.

      (e) In addition to the above, any person, firm, or corporation found to have committed

two (2) or more willful violations in any period of eighteen (18) months of any of the provisions

of this chapter by the hearing officer, which violations are not arising from the same incident,

shall be ineligible to bid on or be awarded work by an awarding authority or perform any work

for a period of sixty (60) months from the date of the second violation.

      (f) The order of the hearing officer shall remain in full force and effect unless stayed by

order of the superior court.

      (g) The director of labor and training, awarding authority, or hearing officer shall notify

the bonding company of any person, firm, or corporation suspected of violating any section of

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this chapter. The notice shall be mailed certified mail, and shall enumerate the alleged violations

being investigated.

      (h) In addition to the above, any person, firm, or corporation found to have willfully

made a false or fraudulent representation on certified payroll records or in reporting their

apprenticeship information to any governmental agency shall be referred to the office of the

attorney general. The false or fraudulent representation shall be considered a misdemeanor and

shall be punishable for a period of not more than one year in prison and/or fined one thousand

dollars ($1,000). Further, any person, firm, or corporation found to have willfully made a false or

fraudulent representation on certified payroll records shall be required to pay a civil penalty to the

department of labor and training in an amount of no less than two thousand dollars ($2,000) and

not greater than fifteen thousand dollars ($15,000) per representation.

     SECTION 4. This act shall take effect upon passage.

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LC004749

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO PUBLIC PROPERTY AND WORKS -- LABOR AND PAYMENT OF DEBTS

BY CONTRACTORS

***

     This act would require that all bidders responding to an invitation to bid on a public

works project valued at one million dollars ($1,000,000) or more have an apprenticeship program

and that at least fifteen percent (15%) of the labor hours are performed by apprentices.

     This act would take effect upon passage.

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