Assembly Bill No. 141–Committee on Commerce and Labor

 

(On Behalf of the Department of Business
and Industry, Labor Commissioner)

 

February 14, 2003

____________

 

Referred to Committee on Commerce and Labor

 

SUMMARY—Makes various changes concerning enforcement of provisions requiring payment of prevailing rate of wages on public works. (BDR 28‑464)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to public works; making various changes concerning the enforcement of the provisions requiring the payment of the prevailing rate of wages on public works; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. NRS 338.016 is hereby amended to read as follows:

1-2  338.016  1.  If, after an opportunity for a hearing, an

1-3  administrative penalty is imposed against a contractor on a public

1-4  work for the commission of an offense:

1-5  (a) An eligible bidder, or any person who entered into a contract

1-6  with the eligible bidder before bids for the contract for the public

1-7  work were let, may commence a civil action against the contractor

1-8  to recover damages suffered as a proximate result of the eligible

1-9  bidder not being awarded the contract for the public work.

1-10      (b) There is a rebuttable presumption that the contractor was

1-11  awarded the contract for the public work because his bid on the

1-12  contract was based, in part, on his intent to commit the offense and,

1-13  as a result, was lower than it otherwise would have been.

2-1  2.  The court may award costs and reasonable attorney’s fees to

2-2  the prevailing party in any action brought pursuant to this section.

2-3  Sec. 2.  NRS 338.030 is hereby amended to read as follows:

2-4  338.030  1.  The public body awarding any contract for public

2-5  work, or otherwise undertaking any public work, shall ascertain

2-6  from the Labor Commissioner the prevailing wage in the county in

2-7  which the public work is to be performed for each craft or type of

2-8  work.

2-9  2.  To establish a prevailing wage in each county, including

2-10  Carson City, the Labor Commissioner shall, annually, survey

2-11  contractors who have performed work in the county. Within 30 days

2-12  after the determination is issued:

2-13      (a) A public body or person entitled under subsection 5 to be

2-14  heard may submit an objection to the Labor Commissioner with

2-15  evidence to substantiate that a different wage prevails; and

2-16      (b) Any person may submit information to the Labor

2-17  Commissioner that would [support] substantiate a change in the

2-18  prevailing wage of a craft or type of work by 50 cents or more per

2-19  hour in any county.

2-20      3.  The Labor Commissioner shall hold a hearing in the locality

2-21  in which the work is to be executed if he:

2-22      (a) Is in doubt as to the prevailing wage; or

2-23      (b) Receives an objection or information pursuant to

2-24  subsection 2.

2-25  The Labor Commissioner may hold only one hearing a year on the

2-26  prevailing wage of any craft or type of work in any county.

2-27      4.  Notice of the hearing must be advertised in a newspaper

2-28  nearest to the locality of the work once a week for 2 weeks before

2-29  the time of the hearing.

2-30      5.  At the hearing, any public body, the crafts affiliated with the

2-31  State Federation of Labor or other recognized national labor

2-32  organizations, and the contractors of the locality or their

2-33  representatives must be heard. From the evidence presented[,] and

2-34  any matters officially noticed, the Labor Commissioner shall

2-35  determine the prevailing wage.

2-36      6.  The wages so determined must be filed by the Labor

2-37  Commissioner and must be available to any public body which

2-38  awards a contract for any public work.

2-39      7.  Nothing contained in NRS 338.020 to 338.090, inclusive,

2-40  may be construed to authorize the fixing of any wage below any rate

2-41  which may now or hereafter be established as a minimum wage for

2-42  any person employed upon any public work, or employed by any

2-43  officer or agent of any political subdivision of the State of Nevada.

 

 

3-1  Sec. 3.  NRS 338.070 is hereby amended to read as follows:

3-2  338.070  1.  Any public body and its officers or agents

3-3  awarding a contract shall:

3-4  (a) Investigate possible violations of the provisions of NRS

3-5  338.010 to 338.090, inclusive, committed in the course of the

3-6  execution of the contract, and determine whether a violation has

3-7  been committed and inform the Labor Commissioner of any such

3-8  violations; and

3-9  (b) When making payments to the contractor of money

3-10  becoming due under the contract, withhold and retain all sums

3-11  forfeited pursuant to the provisions of NRS 338.010 to 338.090,

3-12  inclusive.

3-13      2.  No sum may be withheld, retained or forfeited, except from

3-14  the final payment, without a full investigation being made by the

3-15  awarding body or its agents.

3-16      3.  It is lawful for any contractor to withhold from any

3-17  subcontractor under him sufficient sums to cover any penalties

3-18  withheld from him by the awarding body on account of the failure

3-19  of the subcontractor to comply with the terms of NRS 338.010 to

3-20  338.090, inclusive. If payment has already been made to the

3-21  subcontractor, the contractor may recover from him the amount of

3-22  the penalty or forfeiture in a suit at law.

3-23      4.  The contractor and each subcontractor shall keep or cause to

3-24  be kept an accurate record showing the name, the occupation and

3-25  the actual per diem, wages and benefits paid to each workman

3-26  employed by him in connection with the public work.

3-27      5.  The record must be open at all reasonable hours to the

3-28  inspection of the public body awarding the contract, and its officers

3-29  and agents. The contractor or subcontractor shall ensure that a copy

3-30  of the record for each calendar month is received by the public body

3-31  awarding the contract no later than [10] 15 days after the end of the

3-32  month. The copy must be open to public inspection as provided in

3-33  NRS 239.010. The record in the possession of the public body

3-34  awarding the contract may be discarded by the public body 2 years

3-35  after final payment is made by the public body for the public work.

3-36      6.  Any contractor or subcontractor, or agent or representative

3-37  thereof, performing work for a public work who neglects to comply

3-38  with the provisions of this section is guilty of a misdemeanor.

3-39      Sec. 4.  NRS 338.090 is hereby amended to read as follows:

3-40      338.090  1.  Any person, including the officers, agents or

3-41  employees of a public body, who violates any of the provisions of

3-42  NRS 338.010 to 338.090, inclusive, or any regulation adopted

3-43  pursuant thereto, is guilty of a misdemeanor.

3-44      2.  The Labor Commissioner, in addition to any other penalty

3-45  provided in this chapter:

4-1  (a) Shall assess a person who, after an opportunity for a

4-2  hearing, is found to have failed to pay the prevailing wage required

4-3  pursuant to NRS 338.020 to 338.090, inclusive, an amount equal to

4-4  the difference between the prevailing wages required to be paid and

4-5  the wages he actually paid; and

4-6  (b) May, in addition, impose an administrative fine not to

4-7  exceed the costs he incurred to investigate and prosecute the matter.

4-8  Sec. 5.  NRS 338.515 is hereby amended to read as follows:

4-9  338.515  1.  Except as otherwise provided in NRS 338.525, a

4-10  public body and its officers or agents awarding a contract for a

4-11  public work shall pay or cause to be paid to a contractor the progress

4-12  payments due under the contract within 30 days after the date the

4-13  public body receives the progress bill or within a shorter period if

4-14  the provisions of the contract so provide. Not more than 90 percent

4-15  of the amount of any progress payment may be paid until 50 percent

4-16  of the work required by the contract has been performed. Thereafter

4-17  the public body may pay any of the remaining progress payments

4-18  without withholding additional retainage if, in the opinion of the

4-19  public body, satisfactory progress is being made in the work.

4-20      2.  Except as otherwise provided in NRS 338.525, a public

4-21  body shall identify in the contract and pay or cause to be paid to a

4-22  contractor the actual cost of the supplies, materials and equipment

4-23  that:

4-24      (a) Are identified in the contract;

4-25      (b) Have been delivered and stored at a location, and in the time

4-26  and manner, specified in a contract by the contractor or a

4-27  subcontractor or supplier for use in the construction, repair or

4-28  reconstruction of the public work; and

4-29      (c) Are in short supply or were specially made for the public

4-30  work,

4-31  within 30 days after the public body receives a progress bill from

4-32  the contractor for those supplies, materials or equipment.

4-33      3.  A public body shall pay or cause to be paid to the contractor

4-34  at the end of each quarter interest for the quarter on any amount

4-35  withheld by the public body pursuant to NRS 338.400 to 338.645,

4-36  inclusive, at a rate equal to the rate quoted by at least three financial

4-37  institutions as the highest rate paid on a certificate of deposit whose

4-38  duration is approximately 90 days on the first day of the quarter. If

4-39  the amount due to a contractor pursuant to this subsection for any

4-40  quarter is less than $500, the public body may hold the interest until:

4-41      (a) The end of a subsequent quarter after which the amount of

4-42  interest due is $500 or more;

4-43      (b) The end of the fourth consecutive quarter for which no

4-44  interest has been paid to the contractor; or

5-1  (c) The amount withheld under the contract is due pursuant to

5-2  NRS 338.520,

5-3  whichever occurs first.

5-4  4.  If the Labor Commissioner has reason to believe that an

5-5  employee [has a valid and enforceable claim for wages against] is

5-6  owed wages by a contractor, he may require the public body to

5-7  withhold from any payment due the contractor under this section ,

5-8  and pay the Labor Commissioner instead, an amount equal to the

5-9  amount [claimed by] that the Labor Commissioner believes is owed

5-10  to the employee. This amount must be paid to the employee if the

5-11  [claim] matter is resolved in his favor, otherwise it must be returned

5-12  to the public body for payment to the contractor.

5-13      Sec. 6.  This act becomes effective upon passage and approval.

 

5-14  H