House Bill text for HB0329

HOUSE BILL 329

49th legislature - STATE OF NEW MEXICO - first session, 2009

INTRODUCED BY

Ben Lujan

AN ACT

RELATING TO PUBLIC WORKS; PROVIDING FOR THE DETERMINATION OF PREVAILING WAGE RATES AND PREVAILING FRINGE BENEFIT RATES; REQUIRING PAYMENT OF THE PREVAILING RATES ON PUBLIC WORKS PROJECTS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 13-4-10 NMSA 1978 (being Laws 1963, Chapter 304, Section 1) is amended to read:

"13-4-10. SHORT TITLE.--Sections [6-6-6 through 6-6-10 New Mexico Statutes Annotated, 1953 Compilation] 13-4-10 through 13-4-17 NMSA 1978 may be cited as the "Public Works Minimum Wage Act"."

Section 2. A new section of the Public Works Minimum Wage Act, Section 13-4-10.1 NMSA 1978, is enacted to read:

"13-4-10.1. [NEW MATERIAL] DEFINITIONS.--As used in the Public Works Minimum Wage Act:

A. "director" means the director of the labor relations division of the workforce solutions department;

B. "division" means the labor relations division of the workforce solutions department;

C. "fringe benefit" means payments made by a contractor, subcontractor, employer or person acting as a contractor, if the payment has been authorized through a negotiated process or by a collective bargaining agreement, for:

(1) holidays;

(2) time off for sickness or injury;

(3) time off for personal reasons or vacation;

(4) bonuses;

(5) authorized expenses incurred during the course of employment;

(6) health, life and accident or disability insurance;

(7) profit-sharing plans;

(8) contributions made on behalf of an employee to a retirement or other pension plan; and

(9) any other compensation paid to an employee other than wages;

D. "labor organization" means an organization of any kind, or an agency or employee representation committee or plan, in which employees participate and that exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work; and

E. "wage" means the basic hourly rate of pay."

Section 3. Section 13-4-11 NMSA 1978 (being Laws 1965, Chapter 35, Section 1, as amended) is amended to read:

"13-4-11. PREVAILING WAGE AND BENEFIT RATES DETERMINED--MINIMUM WAGES AND FRINGE BENEFITS ON PUBLIC WORKS--WEEKLY PAYMENT--[POSTING WAGE SCALE] WITHHOLDING FUNDS.--

A. Every contract or project in excess of sixty thousand dollars ($60,000) that the state or any political subdivision thereof is a party to for construction, alteration, demolition or repair or any combination of these, including painting and decorating, of public buildings, public works or public roads of the state and that requires or involves the employment of mechanics, laborers or both shall contain a provision stating the minimum wages and fringe benefits to be paid to various classes of laborers and mechanics, which shall be based upon the wages and benefits that will be determined by the director [of the labor and industrial division of the labor department] to be prevailing for the corresponding classes of laborers and mechanics employed on contract work of a similar nature in the state or locality, and every contract or project shall contain a stipulation that the contractor, subcontractor, employer or a person acting as a contractor shall pay all mechanics and laborers employed on the site of the project, unconditionally and not less often than once a week and without subsequent unlawful deduction or rebate on any account, the full amounts accrued at time of payment computed at wage rates and fringe benefit rates not less than those [stated in the minimum wage rates] determined pursuant to Subsection B of this section to be the prevailing wage rates and prevailing fringe benefit rates issued for the project.

[B. For the purpose of making wage determinations, the director of the labor and industrial division of the labor department shall conduct a continuing program for the obtaining and compiling of wage-rate information and shall encourage the voluntary submission of wage-rate data by contractors, contractors' associations, labor organizations, interested persons and public officers. Before making a determination of wage rates for any project, the director shall give due regard to the information thus obtained. Whenever the director deems that the data at hand are insufficient to make a wage determination, the director may have a field survey conducted for the purpose of obtaining sufficient information upon which to make determination of wage rates. Any interested person shall have the right to submit to the director written data, views and arguments why the wage determination should be changed.]

B. The director shall determine prevailing wage rates and prevailing fringe benefit rates for respective classes of laborers and mechanics employed on public works projects at the same wage rates and fringe benefit rates used in collective bargaining agreements between labor organizations and their signatory employers that govern predominantly similar classes or classifications of laborers and mechanics for the locality of the public works project and the crafts involved; provided that:

(1) if the prevailing wage rates and prevailing fringe benefit rates cannot reasonably and fairly be determined in a locality because no collective bargaining agreements exist, the director shall determine the prevailing wage rates and prevailing fringe benefit rates for the same or most similar class or classification of laborer or mechanic in the nearest and most similar neighboring locality in which collective bargaining agreements exist; and

(2) prevailing wage rates and prevailing fringe benefit rates determined pursuant to the provisions of this section shall be compiled as official records and kept on file in the director's office and the records shall be updated in accordance with the applicable rates used in subsequent collective bargaining agreements.

C. The [scale of wages] prevailing wage rates and prevailing fringe benefit rates to be paid shall be posted by the contractor or person acting as a contractor in a prominent and easily accessible place at the site of the work; and it is further provided that there may be withheld from the contractor, subcontractor, employer or a person acting as a contractor so much of accrued payments as may be considered necessary by the contracting officer of the state or political subdivision to pay to laborers and mechanics employed on the project the difference between the [rates of wages] prevailing wage rates and prevailing fringe benefit rates required by the director [of the labor and industrial division of the labor department] to be paid to laborers and mechanics on the work and the wage rates [of wages] and fringe benefit rates received by [such] the laborers and mechanics and not refunded to the contractor, subcontractor, employer or a person acting as a contractor or [their] the contractor's, subconstractor's, employer's or person's agents.

D. Notwithstanding any other provision of law applicable to public works contracts or agreements, the director [of the labor and industrial division of the labor department] may, with cause:

(1) issue investigative or hearing subpoenas for the production of documents or witnesses pertaining to public works prevailing wage projects; and

(2) attach and prohibit the release of any assurance of payment required under Section 13-4-18 NMSA 1978 for a reasonable period of time beyond the time limits specified in that section until the director satisfactorily resolves any probable cause to believe a violation of the Public Works Minimum Wage Act or its implementing rules has taken place.

E. The director [of the labor and industrial division of the labor department] shall issue rules necessary to administer and accomplish the purposes of the Public Works Minimum Wage Act."

Section 4. Section 13-4-13 NMSA 1978 (being Laws 1965, Chapter 35, Section 3, as amended) is amended to read:

"13-4-13. FAILURE TO PAY MINIMUM WAGE--TERMINATION OF CONTRACT.--Every contract within the scope of the Public Works Minimum Wage Act shall contain further provision that in the event it is found by the director [of the labor and industrial division of the labor department] that any laborer or mechanic employed on the site of the project has been or is being paid as a result of a willful violation a [rate of wages] wage rate or fringe benefit rate less than [the rate of wages] rates required, the contracting agency may, by written notice to the contractor, subcontractor, employer or person acting as a contractor, terminate [their] the right to proceed with the work or [such] the part of the work as to which there has been a willful failure to pay the required wages or fringe benefits, and the contracting agency may prosecute the work to completion by contract or otherwise, and the contractor or person acting as a contractor and [his] the contractor's or person's sureties shall be liable to the state for any excess costs occasioned thereby. Any party receiving notice of termination of [his] a project or subcontract [under] pursuant to the provisions of this section may appeal the finding of the director as provided in the Public Works Minimum Wage Act."

Section 5. Section 13-4-13.1 NMSA 1978 (being Laws 2004, Chapter 89, Section 1, as amended) is amended to read:

"13-4-13.1. PUBLIC WORKS CONTRACTS--REGISTRATION OF CONTRACTORS AND SUBCONTRACTORS.--

A. Except as otherwise provided in this subsection, in order to submit a bid valued at more than [fifty thousand dollars ($50,000)] sixty thousand dollars ($60,000) in order to respond to a request for proposals or to be considered for award of any portion of a public works project greater than [fifty thousand dollars ($50,000)] sixty thousand dollars ($60,000) for a public works project that is subject to the Public Works Minimum Wage Act, the contractor, serving as a prime contractor or not, shall be registered with the [labor and industrial] division [of the labor department]. Bidding documents issued or released by a state agency or political subdivision of the state shall include a clear notification that each contractor, prime contractor or subcontractor is required to be registered pursuant to this subsection. The provisions of this section do not apply to vocational classes in public schools or public post-secondary educational institutions.

B. The state or any political subdivision of the state shall not accept a bid on a public works project subject to the Public Works Minimum Wage Act from a prime contractor that does not provide proof of required registration for itself.

C. Contractors and subcontractors may register with the division on a form provided by the division and in accordance with [labor] workforce solutions department rules. The division shall charge an annual registration fee of two hundred dollars ($200). The division shall issue to the applicant a certificate of registration within fifteen days after receiving from the applicant the completed registration form and the registration fee.

D. Registration fees collected by the division shall be deposited in the labor enforcement fund."

Section 6. Section 13-4-14 NMSA 1978 (being Laws 1965, Chapter 35, Section 4, as amended) is amended to read:

"13-4-14. PAYMENT OF WAGES FROM FUNDS WITHHELD--LIST OF CONTRACTORS VIOLATING ACT--ADDITIONAL RIGHT OF WAGE EARNERS.--

A. The director [of the labor and industrial division of the labor department] shall certify to the contracting agency the names of persons or firms the director has found to have disregarded their obligations to employees under the Public Works Minimum Wage Act and the amount of arrears. The contracting agency shall pay or cause to be paid to the affected laborers and mechanics, from any accrued payments withheld under the terms of the contract or designated for the project, any wages or fringe benefits found due [such] to the workers pursuant to the Public Works Minimum Wage Act. The director shall, after notice to the affected persons, distribute a list to all departments of the state giving the names of persons or firms the director has found to have willfully violated the Public Works Minimum Wage Act. No contract or project shall be awarded to the persons or firms appearing on this list or to any firm, corporation, partnership or association in which the persons or firms have an interest until three years have elapsed from the date of publication of the list containing the names of the persons or firms. A person to be included on the list to be distributed may appeal the finding of the director as provided in the Public Works Minimum Wage Act.

B. If the accrued payments withheld under the terms of the contract, as mentioned in Subsection A of this section, are insufficient to reimburse all the laborers and mechanics with respect to whom there has been a failure to pay the wages or fringe benefits required pursuant to the Public Works Minimum Wage Act, the laborers and mechanics shall have the right of action or intervention or both against the contractor or person acting as a contractor and [his] the contractor's or person's sureties, conferred by law upon [such] the persons furnishing labor and materials, and, in such proceeding, it shall be no defense that the laborers and mechanics accepted or agreed to less than the required rate of wages or voluntarily made refunds. The director [of the labor and industrial division of the labor department] shall refer such matters to the district attorney in the appropriate county, and it is the duty and responsibility of the district attorney to bring civil suit for wages and fringe benefits due and liquidated damages provided for in Subsection C of this section.

C. In the event of any violation of the Public Works Minimum Wage Act or implementing rules, the contractor, subcontractor, employer or a person acting as a contractor responsible for the violation shall be liable to any affected employee for the employee's unpaid wages or fringe benefits. In addition, the contractor, subcontractor, employer or a person acting as a contractor shall be liable to any affected employee for liquidated damages beginning with the first day of covered employment in the sum of one hundred dollars [($100.00)] ($100) for each calendar day on which a contractor, subcontractor, employer or person acting as a contractor has willfully required or permitted an individual laborer or mechanic to work in violation of the provisions of the Public Works Minimum Wage Act.

D. In an action brought pursuant to Subsection C of this section, the court may award, in addition to all other remedies, attorney fees and costs to an employee adversely affected by a violation of the Public Works Minimum Wage Act by a contractor, subcontractor, [employee] employer or [a] person acting as a contractor."

Section 7. Section 13-4-14.1 NMSA 1978 (being Laws 2004, Chapter 89, Section 2) is amended to read:

"13-4-14.1. LABOR ENFORCEMENT FUND--CREATION--USE.--The "labor enforcement fund" is created in the state treasury. The fund shall consist of contractor and subcontractor registration fees collected by the [labor and industrial] division [of the labor department] and all investment and interest income from the fund. The fund shall be administered by the division, and money in the fund is appropriated to the division for administration and enforcement of the Public Works Minimum Wage Act. Money in the fund shall not revert to the general fund at the end of a fiscal year."

Section 8. Section 13-4-14.2 NMSA 1978 (being Laws 2004, Chapter 89, Section 3) is amended to read:

"13-4-14.2. REGISTRATION CANCELLATION, REVOCATION, SUSPENSION--INJUNCTIVE RELIEF.--The director [of the labor and industrial division of the labor department] may:

A. cancel, revoke or suspend with conditions, including probation, the registration of any party required to be registered pursuant to the Public Works Minimum Wage Act for failure to comply with the registration provisions or for good cause, subject to appeal pursuant to Section 13-4-15 NMSA 1978; and

B. seek injunctive relief in district court for failure to comply with the registration provisions of the Public Works Minimum Wage Act."

Section 9. Section 13-4-15 NMSA 1978 (being Laws 1963, Chapter 304, Section 5, as amended) is amended to read:

"13-4-15. APPEALS.--

A. Any interested person may appeal any determination, finding or action of the director [of the labor and industrial division of the labor department] made pursuant to the Public Works Minimum Wage Act to the labor and industrial commission sitting as the appeals board by filing notice of the appeal with the director within fifteen days after the determination has been issued or notice of the finding or action has been given as provided in the Public Works Minimum Wage Act.

B. The labor and industrial commission, sitting as the appeals board, shall adopt rules as it deems necessary for the prompt disposition of appeals. A copy of the rules shall be filed with the librarian of the supreme court law library.

C. The appeals board, within ten days after the filing of the appeal, shall set the matter for an oral hearing within thirty days and, following the hearing, shall enter a decision within ten days after the close of the hearing and promptly mail copies of the decision to the parties.

D. Decisions of the appeals board may be appealed pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

Section 10. Section 13-4-17 NMSA 1978 (being Laws 1937, Chapter 179, Section 5) is amended to read:

"13-4-17. OUTSTANDING CONTRACTS AND INVITATIONS.--[This Act] The Public Works Minimum Wage Act shall not [effect any] affect a contract [then] existing or [any] a contract that may [thereafter] be entered into pursuant to invitations for bids that are outstanding at the time of [the passage of this Act] enactment of that act."

Section 11. REPEAL.--Section 13-4-12 NMSA 1978 (being Laws 1965, Chapter 35, Section 2, as amended) is repealed.

Section 12. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.

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