2022 -- H 7200 SUBSTITUTE A AS AMENDED

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2022

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A N   A C T

RELATING TO PUBLIC PROPERTY AND WORKS -- BUILDING SERVICE WORK

     

     Introduced By: Representatives Diaz, Slater, Amore, Morales, Biah, Alzate, Cortvriend,

     Date Introduced: January 26, 2022

     Referred To: House Labor

     It is enacted by the General Assembly as follows:

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     SECTION 1. Title 37 of the General Laws entitled "PUBLIC PROPERTY AND WORKS"

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is hereby amended by adding thereto the following chapter:

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CHAPTER 25

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BUILDING SERVICE WORK

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     37-25-1. Definitions.

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     As used in this chapter:

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     (1) "Auxiliary" means an entity that exists to furnish goods or services to students, faculty,

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or staff and that charges a fee directly related to the costs of goods or services and are considered

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"restricted funds." Auxiliary enterprises are managed as essentially self-supporting activities.

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     (2) "Building service employee" or "employee" means any person performing building

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services for a contractor under a contract with a state purchasing entity which is in excess of one

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thousand dollars ($1,000) and the principal purpose of such contract is to furnish services through

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the use of building services employees.

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     (3) "Building services" means any janitorial or security guard services.

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     (4) "Contractor" means any contractor who employs employees to perform building

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services under a contract with a state purchasing entity and shall include any of the contractor's

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subcontractors.

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     (5) "Governmental agency" means a state or public agency, a county, municipality, or

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school district.

 

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     (6) "Janitorial services" means performance of any duties such as, but not limited to:

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cleaning and restocking bathrooms; floor cleaning, servicing, and maintenance for attached

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carpeting, hard surfaces, and walk-off mats at all facility entrances (e.g., vacuuming, washing,

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sweeping, stripping, waxing, buffing); cleaning of furniture, fixtures, and interior building surfaces

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(e.g., dusting, washing, and periodic steam cleaning); all related activities under the other Facilities

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Management and Maintenance Standards (FMMS), such as Solid Waste Management and

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Integrated Pest Services; use of green cleaning procedures and practices in compliance with all

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applicable standards.

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     (7) "Predecessor contract" means the contract preceding that to which is being bid upon or

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which was recently awarded and to which the current succeeding contract and contractor provide

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substantially the same building services to the same state purchasing entity or entities.

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     (8) "Public agency" means any body corporate and politic which has been or will be created

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or established within this state, excepting cities and towns, and the university of Rhode Island board

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of trustees, for all purchases that are funded by restricted, sponsored, or auxiliary monies, and the

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council on postsecondary education for all purchases that are funded by restricted, sponsored, or

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auxiliary monies.

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     (9) "Restricted funds and sponsored funds" means those funds expendable for operating

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purposes but restricted by donors or other outside agencies as to the specific purpose for which they

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may be expended (e.g., endowment funds, gifts, scholarships, governmental grants, private grants,

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auxiliary enterprises, restricted operational purposes with use-restrictions designated by the

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appropriating body).

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     (10) "Security guard services" means performance of any duties such as, but not limited to:

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securing premises and personnel by patrolling property; inspecting buildings, equipment, and

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access points; monitoring of surveillance equipment; investigating disturbances and notifying

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tenant agency staff and/or police or fire departments in cases of emergency; monitoring and

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authorizing entrance and departure of employees, visitors, and other persons to guard against theft

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and maintain security of premises; incident reporting or maintaining a log of activities and

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irregularities, such as equipment or property damage, theft, presence of unauthorized persons, or

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unusual occurrences; vehicle patrols; inspection; responding to incidents requiring de-escalation

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and/or physical intervention.

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     (11) "Standard benefits" means the greatest of:

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     (i) The benefit rate determined by the United States Department of Labor pursuant to the

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"Service Contract Act of 1965" (41 U.S.C. §351, et seq.); or

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     (ii) The benefit rate established by the largest collective bargaining agreement (CBA)

 

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covering at least one hundred (100) building service employees performing either janitorial or

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security guard services, as applicable, other than those employed by a governmental agency or on

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a governmental agency contract or subcontract in Providence County; or

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     (iii) The benefit rate in the predecessor contract. Standard benefits shall be an hourly

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supplement furnished by a contractor to an employee in one of the following ways:

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     (A) In the form of health and/or benefits (not including paid leave) that cost the employer

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the entire required hourly supplement amount;

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     (B) By providing a portion of the required hourly supplement in the form of health and/or

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other benefits (not including paid leave) and the balance in cash; or

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     (C) By providing the entire supplement in cash.

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     (12) "Standard compensation" means each of the following:

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     (i) Standard wage;

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     (ii) Standard benefits; and

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     (iii) Standard paid leave.

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     (13) "Standard paid leave" means the greatest of:

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     Vacation and holiday paid days off determined by the United States Department of Labor

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pursuant to the "Service Contract Act of 1965" (41 U.S.C. §351, et seq.) for all types; or

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     (ii) Vacation and holiday paid days off established by the largest collective bargaining

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agreement covering at least one hundred (100) building service employees performing either

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janitorial or security guard services, as applicable, other than those employed by a governmental

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agency or on a governmental agency contract or subcontract in Providence County, or

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     (iii) The vacation and holiday paid days off in the predecessor contract for the

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corresponding type.

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     (14) "Standard wage" means the greatest of:

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     (i) The wage rate determined by the United States Department of Labor pursuant to the

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"Service Contract Act of 1965" (41 U.S.C. §351, et seq.) for Providence County for the relevant

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type; or

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     (ii) The wage rate established by the largest collective bargaining agreement covering at

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least one hundred (100) building service employees performing either janitorial or security guard

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services, as applicable, other than those employed by a governmental agency or on a governmental

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agency contract or subcontract in Providence County; or

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     (iii) The wage rate in the predecessor contract for the corresponding type.

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     (15) "State agency" means any department, commission, council, board, bureau,

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committee, institution, or other governmental entity of the executive or judicial branch of this state

 

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not otherwise established as a body corporate and politic, and includes, without limitation, the

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council on postsecondary education except for purchases which are funded by restricted, sponsored,

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or auxiliary monies, the university of Rhode Island board of trustees, except for all purchases which

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are funded by restricted, sponsored, or auxiliary monies, and the council on elementary and

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secondary education.

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     (16) "State purchasing entity" means state and public agencies.

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     37-25-2. Investigation and determination of standard compensation -- Filing of

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schedule.

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     The director of labor and training shall investigate and determine the standard

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compensation to be paid as set forth in § 37-25-3 and post the rates on the director of labor and

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training's website. In making a determination, the director may adopt and use such appropriate and

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applicable prevailing wage determinations as have been made by the Secretary of Labor of the

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United States of America in accordance with the Service Contract Act, (41 U.S.C. §351 et seq.), as

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well as relevant collective bargaining agreements (CBAs) and previous state purchasing entity

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contracts.

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     37-25-3. Wage and supplement/benefit requirements.

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     (a) Every call for bids for every contract for building services in excess of one thousand

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dollars ($1,000) to which a state purchasing entity is a party shall contain a provision stating the

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standard compensation to be paid to building service employees which shall be made in accordance

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with § 37-25-2. Every call for bids shall also specify the number of hours to be worked, and bidders

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shall submit pricing on a standard pricing sheet, to be created by the director of labor and training.

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The contract shall provide for adjustments of the standard compensation during the term of the

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contract.

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     (b) All contractors and their subcontractors, who have been awarded contracts for building

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services by a state purchasing entity in which public funds are used and of which the contract price

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shall be in excess of one thousand dollars ($1,000), shall pay their building service employees the

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standard compensation and comply with the provisions set forth in this chapter. This requirement

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shall apply regardless of whether the amount is payable at the time of the signing of the contract or

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at a later date. Except that notwithstanding any language to the contrary in this section or chapter

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the requirement to pay standard benefits shall not apply until the fiscal year beginning on July 1,

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2023.

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     (c) Every contract within the scope of this chapter shall contain the further provision that

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in the event it is found by the director of labor and training that any employee employed by the

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contractor or any subcontractor performing building services covered by the contract has been or

 

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is being paid compensation less than the compensation required by the contract to be paid as

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aforesaid, the awarding party may terminate the contract. The awarding party shall complete the

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work by contract or otherwise and the contractor and his or her sureties shall be liable to the

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awarding party for any excess costs the state suffers.

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     37-25-4. Overtime compensation.

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     Any hours worked in any one week beyond forty (40) hours, or in any one day beyond

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eight (8) hours, for work subject to the provisions of this chapter shall be compensated at the rate

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of one and one-half (1½) of the standard wage, in addition to the standard benefit and standard paid

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leave.

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     37-25-5. Posting of standard compensation.

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     Each contractor awarded a contract for building services with a contract price in excess of

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one thousand dollars ($1,000), and each subcontractor who performs building service work on that

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contract, shall post in conspicuous places wherever building service employees are employed,

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posters which contain the current standard compensation and its components. The posters shall also

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contain the rights and remedies described in §§ 37-25-7 and 37-25-8 for nonpayment of any wages

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pursuant to this chapter. Posters shall be furnished to contractors and subcontractors at the time a

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contract is awarded by the director of labor and training, who shall determine the size and content

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thereof from time to time, at the time a contract is awarded. A contractor or subcontractor who fails

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to comply with the provisions of this section shall be deemed guilty of a civil infraction and shall

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pay the director of labor and training one hundred dollars ($100) for each calendar day of

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noncompliance as determined by the director. Contracts set shall not be awarded by a state

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purchasing entity until the director of labor and training has prepared and delivered the poster to

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the division of purchases and the contractor to whom the contract is to be awarded.

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     37-25-6. Recordkeeping.

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     (a) Every contractor with a contract price in excess of one thousand dollars ($1,000) for

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building services, and each subcontractor who performs work on those building services, shall keep

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an accurate record showing the name, occupation, and actual compensation paid to each worker

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employed by him or her in connection with the contract or work. The director and his or her

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authorized representatives shall have the right to enter any place of employment at all reasonable

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hours, for the purpose of inspecting the wage records and seeing that all provisions of this chapter

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are complied with.

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     (b) Every service contractor and subcontractor awarded a contract for building services, as

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defined by this chapter, shall furnish a certified copy of his or her payroll records of his or her

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employees employed on the contract to the state purchasing entity on a monthly basis for all work

 

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completed in the preceding month on a uniform form prescribed by the director of labor and

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training.

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     (c) The state purchasing entity, contractor and subcontractors shall provide any and all

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payroll records of labor and training within ten (10) days of their request by the director or designee.

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     37-25-7. Enforcement.

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     (a) The director of labor and training may promulgate reasonable rules and regulations to

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enforce the provisions of this chapter.

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     (b) Before issuing an order or determination, the director of labor and training shall order

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a hearing thereon at a time and place to be specified, and shall give notice thereof, together with a

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copy of the complaint or the purpose thereof, together with a copy of the complaint or the purpose

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thereof, or a statement of the facts disclosed upon investigation, which notice shall be served

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

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corporation shall have an opportunity to be heard in respect to the matters complained of at the time

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

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the 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 designee.

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The hearing officer in the hearing shall have the right to issue subpoenas, administer oaths, and

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examine witnesses. The enforcement of a subpoena issued under this section shall be regulated by

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the Rhode Island superior court rules of civil procedure. The hearing shall be expeditiously

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conducted, and upon such hearing, the hearing officer shall determine the issues raised thereon and

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shall make a determination and enter an order within ten (10) days of the close of the hearing, and

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forthwith serve a copy of the order, with a notice of the filing thereof, upon the parties to the

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proceeding, personally or by mail. The order shall dismiss the charges or direct payment of wages

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or supplements found to be due, including interest at the rate of twelve percent (12%) per annum

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from the date of the underpayment to the date of payment, and may direct payment of reasonable

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attorneys' fees and costs to the complaining party.

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     (c) 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 (3) 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 thereof exceeds five

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

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

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

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

 

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of the employer, the gravity of the violation, the history of previous violations, and the failure to

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

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corporation found to be in violation of the provisions of this chapter shall be bound to pay any

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

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

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the general treasurer shall establish a dedicated "standard compensation enforcement fund" for the

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purpose of depositing the penalties paid as provided herein. There is hereby appropriated to the

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annual budget of the department of labor and training the amount of the fund collected annually

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under this section, to be used at the direction of the director of labor and training for the sole purpose

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of enforcing standard compensation as provided in this chapter.

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

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

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shall constitute a separate and succeeding violation.

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     (e) 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 or his or her hearing officer, shall

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be ineligible to bid on, or be awarded work by a state purchasing entity or perform any such work

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for a period of no less than eighteen (18) months and no more than thirty-six (36) months from the

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date of the order entered by the hearing officer. Once a person, firm, or corporation is found to be

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in violation of this chapter, all pending bids with a state purchasing entity shall be revoked, and any

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bid awarded by a state purchasing entity prior to the commencement of the work shall also be

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revoked.

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

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

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chapter by the hearing officer, which violations are not arising from the same incident, shall be

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ineligible to bid on, or be awarded work by a state purchasing entity or perform any work for a

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

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

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a false or fraudulent representation on certified payroll records shall be referred to the office of the

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attorney general. A first violation of this section shall be considered a misdemeanor and shall be

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punishable for a period of not more than one year in prison and/or a fine of one thousand dollars

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($1,000). A second or subsequent violation of this section shall be considered a felony and shall be

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punishable for a period of not more than three (3) years imprisonment, a fine of three thousand

 

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dollars ($3,000), or both. Further, any person, firm, or corporation found to have willfully made a

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

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

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

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     (i) Any effort of any employer to obstruct the director and his or her authorized

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representatives in the performance of their duties shall be deemed a violation of this chapter and

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punishable as such.

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     (j) The director and his or her authorized representatives shall have power to administer

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oaths and examine witnesses under oath, issue subpoenas, subpoenas duces tecum, compel the

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attendance of witnesses, and the production of papers, books, accounts, records, payrolls,

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documents, and testimony, and to take depositions and affidavits in any proceeding before the

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director.

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     (k) In case of failure of any person to comply with any subpoena lawfully issued, or

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subpoena duces tecum, or on the refusal of any witness to testify to any matter regarding which he

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or she may be lawfully interrogated, the provisions of chapter 35 of title 42 ("administrative

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procedures") shall apply.

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     (l) Except as otherwise provided in this chapter, any employer who shall violate or fail to

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comply with any of the provisions of this chapter shall be guilty of a misdemeanor and shall be

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punished by a fine of not less than five hundred dollars ($500) nor more than one thousand dollars

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($1,000) for each separate offense, or by imprisonment of up to one year, or by both fine and

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imprisonment. Each day of failure to pay wages due an employee at the time specified in this

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chapter shall constitute a separate and distinct violation

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     (m) The director is hereby empowered to enforce his or her decision in the superior court

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for the county of Providence.

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     37-25-8. Private right of action.

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     (a) An employee or former employee, or any organization representing such an employee

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or former employee, of a contractor or subcontractor may bring a civil action for a violation of §

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37-25-3 for appropriate injunctive relief including reinstatement, or actual damages, or both within

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three (3) years after the occurrence of the alleged violation. An action commenced pursuant to this

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section may be brought in the superior court for the county where the alleged violation occurred,

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the county where the complainant resides, or the county where the person against whom in the civil

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complaint is filed resides or has their principal place of business. Any contractor or subcontractor

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who violates the provisions of § 37-25-3 shall be liable to the affected employee or employees in

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the amount of back pay or unpaid wages or benefits, plus interest. A civil action filed in court under

 

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this section may be instituted instead of, but not in addition to the director of labor and training

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enforcement procedures authorized by this chapter, provided the civil action is filed prior to the

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date the director of labor and training issues notice of an administrative hearing.

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     (b) An action instituted pursuant to this section may be brought by one or more employees

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or former employees on behalf of himself/herself or themselves and other employees similarly

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situated or by any person, including any organization, alleging violations, except that no employee

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shall be a party plaintiff to any such action unless he/she gives his/her consent in writing to become

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such a party and such consent is filed in the court in which such action is brought.

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     (c) In an action filed under this section in which the plaintiff prevails, the court shall, in

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addition to any judgment awarded to the plaintiff, require reasonable attorneys' fees and the costs

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of the action to be paid by the defendant.

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     (d) The court in an action filed under this section shall award affected employees or former

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employees liquidated damages in an amount equal to two (2) times the amount of unpaid wages or

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benefits owed. Unpaid fringe benefit contributions owed pursuant to this section in any form shall

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be paid to the appropriate benefit fund; however, in the absence of an appropriate fund, the benefit

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shall be paid directly to the individual.

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     (e) The filing of a civil action under this section shall not preclude the director of labor and

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training from referring a matter to the attorney general as provided § 37-25-7(c), from prohibiting

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a contractor or subcontractor from bidding on or otherwise participating in contracts as provided in

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§ 37-25-7(e), (f) and (i), or from prohibiting termination of work on failure to pay agreed wages

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pursuant to § 37-25-3(c).

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     (f) Any person, firm, or corporation found to have willfully made a false or fraudulent

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representation in connection with wage obligations owed on a contract shall be required to pay a

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civil penalty to the department of labor and training in an amount of no less than one thousand

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dollars ($1,000) and not greater than three thousand dollars ($3,000) per representation. Such

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penalties shall be recoverable in civil actions filed pursuant to this section. For purposes of this

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subsection "willfully" shall mean representations that are known to be false, or representations

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made with deliberate ignorance or reckless disregard for their truth or falsity.

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     37-25-9. Retaliation.

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     (a) An employer shall not discharge, threaten, or otherwise discriminate against an

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employee, or former employee, regarding compensation terms, conditions, locations or privileges

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of employment because the employee or former employee, or a person or organization acting on

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his or her behalf:

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     (1) Reports or makes a complaint under this section, or otherwise asserts his or her rights

 

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under this section; or

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     (2) Participates in any investigation, hearing or inquiry held by the director of labor and

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training under §§ 37-25-7 or 37-25-8, or upon a review of an investigation under this section, or

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for participating in a private right of action brought under this chapter. In the event a contractor or

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subcontractor retaliates or discriminates against an employee in violation of this section, the

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affected employee may file an action in any court of competent jurisdiction and the court shall

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order reinstatement and/or restitution of the affected employee, as appropriate, with back pay to the

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date of the violation, and an additional amount in liquidated damages equal to two (2) times the

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amount of back pay and reasonable attorneys' fees and costs.

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     (b) As used in this section to discharge, threaten, or otherwise discriminate against any

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employee includes threatening to contact or contacting United States immigration authorities or

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otherwise threatening to report an employee's suspected citizenship or immigration status or the

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suspected citizenship or immigration status of an employee's family or household to United States

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immigration authorities.

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     37-25-10. Contractor liability.

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     (a) A contractor shall be liable for any debt resulting from an action under this chapter,

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owed to an employee or third party on the wage claimant's behalf, incurred by a subcontractor at

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any tier acting under, by, or for the contractor or its subcontractors for the employee's performance

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of labor. The provisions of this section shall not be deemed to limit the liability of a subcontractor

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under any other provision of law.

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     (b) No agreement or release by an employee or subcontractor to waive liability assigned to

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a contractor under this section shall be valid. The provisions of this section shall not be deemed to

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impair the rights of a contractor to maintain an action against a subcontractor for owed wages that

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are paid by a contractor pursuant to this section.

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     (c) Notwithstanding any other provision of law, the remedies available for a claim pursuant

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to subsection (a) of this section shall only be civil and administrative actions.

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     (d) In the case of a private civil action by an employee, such employee may designate any

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person, organization or collective bargaining agent authorized to file a complaint on his or her

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behalf pursuant to § 37-25-8, to make a wage claim on his or her behalf.

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     (e) In the case of an action against a subcontractor, the contractor shall be considered jointly

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and severally liable for any unpaid wages benefits, wage supplements, penalties, liquidated

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damages, attorneys' fees and any other costs resulting from such action.

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     (f) Nothing herein shall preclude the attorney general from bringing a civil action to collect

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unpaid wages and penalties on behalf of employees pursuant to this section.

 

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     (g) Before bringing a civil action pursuant to this section, an employee, or third party on

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such employee's behalf, shall give the contractor notice of the alleged violation. The notice need

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only describe the general nature of the claim and shall not limit the liability of the contractor or

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preclude subsequent amendments of an action to encompass additional employees employed by the

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subcontractor. An employee, or third party on such employee's behalf, may not bring a civil action

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until ten (10) business days after giving the contractor notice of the alleged violation and may not

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bring a civil action if the contractor corrects the alleged violation. An employee, or third party on

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such employee's behalf, is not required to give notice to a contractor pursuant to this subsection

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before bringing a civil action pursuant to this section if any employee, or third party on any

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employee's behalf, previously has given notice to such contractor of the same alleged violation or

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a prior alleged violation by the same subcontractor.

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     37-25-11. Severability.

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     If any section or provision or the application of the section or provision of this chapter to

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any person or circumstances shall be held invalid, the validity of the remainder of the sections and

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the applicability of the sections or provisions to other persons or circumstances shall not be

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affected.

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     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO PUBLIC PROPERTY AND WORKS -- BUILDING SERVICE WORK

***

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     This act would require that janitors and security guards employed, pursuant to state

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contracts worth more than one thousand dollars ($1,000) of janitorial or security services, be paid

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a standard compensation rate. The director of the department of labor and training would determine

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that standard compensation rate and its wage, benefit, and leave components. This act would also

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provide for enforcement and would establish a private right of action.

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     This act would take effect upon passage.

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