§ 21189.70.8. — 21189.70.8. (Amended by Stats. 2022, Ch. 28, Sec. 138.)

California § 21189.70.8.

• Jurisdiction: California
• Code PRC: Public Resources Code - PRC
• Div. 13.: DIVISION 13. ENVIRONMENTAL QUALITY
• Ch. 6.9.: CHAPTER 6.9. Old Town Center Redevelopment in the City of San Diego

Text

(a)
(1)
For a transit and transportation facilities project undertaken by a public agency, except as provided in paragraph (2), an entity shall not be prequalified or shortlisted or awarded a contract by the public agency to perform any portion of the transit and transportation facilities project unless the entity provides an enforceable commitment to the public agency that the entity and its subcontractors at every tier will use a skilled and trained workforce to perform all work on the transit and transportation facilities project or contract that falls within an apprenticeable occupation in the building and construction trades.
(2)
Paragraph (1) does
not apply if any of the following requirements are met:
(A)
The public agency has entered into a project labor agreement that will bind all contractors and subcontractors performing work on the transit and transportation facilities project or contract to use a skilled and trained workforce, and the entity agrees to be bound by that project labor agreement.
(B)
The transit and transportation facilities project or contract is being performed under the extension or renewal of a project labor agreement that was entered into by the public agency before January 1, 2021.
(C)
The entity has entered into a project labor agreement that will bind the entity and all of its subcontractors at every tier performing the transit and
transportation facilities project or contract to use a skilled and trained workforce.
(b)
For a transit and transportation facilities project undertaken by a private entity, the transit and transportation facilities project proponent shall do both of the following:
(1)
Certify to the lead agency that either of the following is true:
(A)
The entirety of the transit and transportation facilities project is a public work for purposes of Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of the Labor Code.
(B)
If the transit and transportation facilities project is not in its entirety a public work, all construction workers employed in the execution of the
transit and transportation facilities project will be paid at least the general prevailing rate of per diem wages for the type of work and geographic area, as determined by the Director of Industrial Relations pursuant to Sections 1773 and 1773.9 of
the Labor Code, except that apprentices registered in programs approved by the Chief of the Division of Apprenticeship Standards may be paid at least the applicable apprentice prevailing rate. If the transit and transportation facilities project is subject to this subparagraph, then, for those portions of the transit and transportation facilities project that are not a public work, all of the following shall apply:
(i)
The transit and transportation facilities project proponent shall ensure that the prevailing wage requirement is included in all contracts for the performance of the work.
(ii)
All contractors and subcontractors shall pay to all construction workers employed in the execution of the work at least the general prevailing rate of per diem wages,
except that apprentices registered in programs approved by the Chief of the Division of Apprenticeship Standards may be paid at least the applicable apprentice prevailing rate.
(iii)
(I)
Except as provided in subclause (III), all contractors and subcontractors shall maintain and verify payroll records pursuant to Section 1776 of the Labor Code and make those records available for inspection and copying as provided by that section.
(II)
Except as provided in subclause (III), the obligation of the contractors and subcontractors to pay prevailing wages may be enforced by the Labor Commissioner through the issuance of a civil wage and penalty assessment pursuant to Section 1741 of the Labor Code, which may be reviewed pursuant to Section 1742 of the Labor Code, within
18 months after the completion of the transit and transportation facilities project, by an underpaid worker through an administrative complaint or civil action, or by a joint labor-management committee through a civil action under Section 1771.2 of the Labor Code. If a civil wage and penalty assessment is issued, the contractor, subcontractor, and surety on a bond or bonds issued to secure the payment of wages covered by the assessment shall be liable for liquidated damages pursuant to Section 1742.1 of the Labor Code.
(III)
Subclauses (I) and (II) do not apply if all contractors and subcontractors performing work on the transit and transportation facilities project are subject to a project labor agreement that requires the payment of prevailing wages to all construction workers employed in the execution of the transit and transportation facilities
project and provides for enforcement of that obligation through an arbitration procedure.
(iv)
Notwithstanding subdivision (c) of Section 1773.1 of the Labor Code, the requirement that employer payments not reduce the obligation to pay the hourly straight time or overtime wages found to be prevailing shall not apply if otherwise provided in a bona fide collective bargaining agreement covering the worker. The requirement to pay at least the general prevailing rate of per diem wages does not preclude use of an alternative workweek schedule adopted pursuant to Section 511 or 514 of the Labor Code.
(2)
Certify to the lead agency that a skilled and trained workforce will be used to perform all construction work on the transit and transportation facilities project. All of the
following requirements shall apply to the transit and transportation facilities project:
(A)
The transit and transportation facilities project proponent shall require in all contracts for the performance of work that every contractor and subcontractor at every tier will individually use a skilled and trained workforce to complete the transit and
transportation facilities project.
(B)
Every contractor and subcontractor shall use a skilled and trained workforce to complete the transit and transportation facilities project.
(C)
(i)
Except as provided in clause (ii), the transit and transportation facilities project proponent shall provide to the lead agency, on a monthly basis while the transit and transportation facilities project or contract is being performed, a report demonstrating compliance with Chapter 2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code. A monthly report provided to the lead agency pursuant to this clause shall be a public record under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of
the Government Code) and shall be open to public inspection. A transit and transportation facilities project proponent that fails to provide a monthly report demonstrating compliance with Chapter 2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code shall be subject to a civil penalty of ten thousand dollars ($10,000) per month for each month for which the report has not been provided. Any contractor or subcontractor that fails to use a skilled and trained workforce shall be subject to a civil penalty of two hundred dollars ($200) per day for each worker employed in contravention of the skilled and trained workforce requirement. Penalties may be assessed by the Labor Commissioner within 18 months of completion of the transit and transportation facilities project using the same procedures for
issuance of civil wage and penalty assessments pursuant to Section 1741 of the Labor Code, and may be reviewed pursuant to the same procedures in Section 1742 of the Labor Code. Penalties shall be paid to the State Public Works Enforcement Fund.
(ii)
Clause (i) does not apply if all contractors and subcontractors performing work on the transit and transportation facilities project are subject to a project labor agreement that requires compliance with the skilled and trained workforce requirement and provides for enforcement of that obligation through an arbitration procedure.

Legislative History

Amended by Stats. 2022, Ch. 28, Sec. 138. (SB 1380) Effective January 1, 2023.