2013 -- S 0293 SUBSTITUTE A

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LC01128/SUB A/3

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO LABOR -- APPRENTICESHIP

     Introduced By: Senators Miller, Doyle, Lombardi, Gallo, and McCaffrey

     Date Introduced: February 12, 2013

     Referred To: Senate Labor

It is enacted by the General Assembly as follows:

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

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and Payment of Debts by Contractors" is hereby repealed.

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

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

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

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

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

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

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training.

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

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

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

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

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

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

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

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

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

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

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

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program is one that:

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     (1) Is non-provisionally registered with and approved by the United States department of

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labor in conformance with 29 C.F.R. 29 and 29 C.F.R.30; and

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

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

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

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

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prohibitive; or

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

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

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requirement.

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

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

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

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

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

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

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

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

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

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

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of hours they have worked on the project; and

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

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

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

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

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

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

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

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director of labor and training. Mere errors and/or omissions shall not be grounds for imposing a

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penalty under this subsection.

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

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training dedicated "prevailing wages enforcement fund."

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

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

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subject to any and all penalties that a material breach is responsible for in their contract with the

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user agency.

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

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

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

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

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works contract awarded to a contractor.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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costs to the complaining party.

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

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

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

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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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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intermittent, shall constitute a separate and succeeding violation.

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

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

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

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

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

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

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

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commencement of the work shall also be revoked.

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

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

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

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

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

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

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order of the superior court.

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

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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

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being investigated.

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

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

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

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

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

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

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

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

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

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     SECTION 4. This act shall take effect on January 1, 2014 and shall be effective for all

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contracts entered into on and after January 1, 2014.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO LABOR -- APPRENTICESHIP

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

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works project would have an apprenticeship program, and that no less than fifteen percent (15%)

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of the project's labor hours be performed by apprentices in this program.

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     This act would take effect on January 1, 2014 and would be effective for all contracts

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entered into on and after January 1, 2014.

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LC01128/SUB A/3

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