2022 -- S 2412

========

LC004272

========

     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2022

____________

A N   A C T

RELATING TO PUBLIC PROPERTY AND WORKS -- BUILDING SERVICE WORK

     

     Introduced By: Senators Cano, Quezada, Lawson, Kallman, Ciccone, Burke, DiPalma,
Murray, Acosta, and Euer

     Date Introduced: February 15, 2022

     Referred To: Senate Labor

     It is enacted by the General Assembly as follows:

1

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

2

is hereby amended by adding thereto the following chapter:

3

CHAPTER 25

4

BUILDING SERVICE WORK

5

     37-25-1. Definitions.

6

     As used in this chapter:

7

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

8

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

9

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

10

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

11

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

12

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

13

the use of building services employees.

14

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

15

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

16

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

17

subcontractors.

18

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

19

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

 

1

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

2

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

3

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

4

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

5

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

6

auxiliary monies.

7

     (7) "Restricted funds and sponsored funds" consists of those funds expendable for

8

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

9

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

10

private grants, auxiliary enterprises, restricted operational purposes with use-restrictions designated

11

by the appropriating body).

12

     (8)(i) "Standard benefits" means the greatest of the benefit rate determined by the United

13

States Department of Labor pursuant to the "Service Contract Act of 1965" (41 U.S.C. §351, et

14

seq.); or

15

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

16

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

17

services, as applicable, in Providence County; or

18

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

19

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

20

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

21

the entire required hourly supplement amount;

22

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

23

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

24

     (C) By providing the entire supplement in cash.

25

     (9) "Standard compensation" means each of the:

26

     (i) Standard wage;

27

     (ii) Standard benefits; and

28

     (iii) Standard paid leave.

29

     (10) "Standard paid leave" means:

30

     (i) The greatest of vacation and holiday paid days off determined by the United States

31

Department of Labor pursuant to the "Service Contract Act of 1965" (41 U.S.C. §351, et seq.) for

32

Providence County for the relevant type; or

33

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

34

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

 

LC004272 - Page 2 of 11

1

janitorial or security guard services, as applicable, in Providence County, or

2

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

3

type.

4

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

5

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

6

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

7

type; or

8

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

9

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

10

services, as applicable, in Providence County; or

11

     (iii) A wage of at least fifteen dollars ($15.00) per hour; or

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

secondary education.

20

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

21

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

22

schedule.

23

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

24

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

25

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

26

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

27

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

28

well as relevant collective bargaining agreements and previous state purchasing entity contracts.

29

Each contractor awarded a building service contract after July 1, 2022, shall contact the department

30

of labor and training on or before January first of each year, for the duration of the contract to

31

ascertain the standard compensation and shall make any necessary adjustments to such standard

32

compensation every January 1.

33

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

34

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

 

LC004272 - Page 3 of 11

1

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

2

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

3

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

4

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

5

The contract shall provide for annual price adjustments of the standard compensation during the

6

term of the contract.

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

2023.

15

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

16

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

17

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

18

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

19

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

20

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

21

awarding party for any excess costs occasioned by the state.

22

     37-25-4. Overtime compensation.

23

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

24

eight (8) hours, shall be compensated at the rate of one and one-half (1 ½) of the standard wage, in

25

addition to the standard benefit and standard paid leave.

26

     37-25-5. Posting of standard compensation.

27

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

28

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

29

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

30

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

31

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

32

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

33

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

34

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

 

LC004272 - Page 4 of 11

1

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

2

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

3

noncompliance as determined by him or her. Contracts set shall not be awarded by a state

4

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

5

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

6

     37-25-6. Recordkeeping.

7

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

8

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

9

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

10

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

11

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

12

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

13

are complied with.

14

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

15

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

16

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

17

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

18

training.

19

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

20

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

21

     37-25-7. Enforcement.

22

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

23

enforce the provisions of this chapter.

24

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

25

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

26

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

27

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

28

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

29

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

30

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

31

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

32

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

33

The hearing officer in the hearing shall be deemed to be acting in a judicial capacity and shall have

34

the right to issue subpoenas, administer oaths, and examine witnesses. The enforcement of a

 

LC004272 - Page 5 of 11

1

subpoena issued under this section shall be regulated by the Rhode Island superior court rules of

2

civil procedure. The hearing shall be expeditiously conducted, and upon such hearing, the hearing

3

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

4

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

5

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

6

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

7

interest at the rate of twelve percent (12%) per annum from the date of the underpayment to the

8

date of payment, and may direct payment of reasonable attorneys' fees and costs to the complaining

9

party.

10

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

11

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

12

three (3) times the total amount found to be due. Further, if the amount of salary owed to an

13

employee pursuant to this chapter but not paid to the employee in violation of thereof exceeds five

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

of enforcing standard compensation as provided in this chapter.

28

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

29

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

30

shall constitute a separate and succeeding violation.

31

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

32

the provisions of this chapter by the director of labor and training or his or her hearing officer, shall

33

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

34

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

 

LC004272 - Page 6 of 11

1

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

2

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

3

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

4

revoked.

5

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

6

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

7

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

8

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

9

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

10

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

11

order of the superior court.

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

punishable as such.

25

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

26

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

27

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

28

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

29

director.

30

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

31

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

32

or she may be lawfully interrogated, it shall be the duty of the superior court, or any judge thereof,

33

on application by the director, to compel obedience by proceedings in the nature of those for

34

contempt.

 

LC004272 - Page 7 of 11

1

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

2

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

3

punished by a fine of one thousand dollars ($1,000) and/or by imprisonment of up to one year for

4

each separate offense. Each day of failure to pay wages due an employee at the time specified in

5

this chapter shall constitute a separate and distinct violation

6

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

7

for the county of Providence.

8

     37-25-8. Private and Class action.

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

who violates the provisions of § 37-25-3 shall be liable in the amount of back pay or unpaid wages

17

or benefits, plus interest. A civil action filed under this section may be instituted instead of, but not

18

in addition to the administrative enforcement procedures authorized by § 37-25-7, provided the

19

civil action is filed prior to notice of an administrative hearing issued by the director of labor and

20

training.

21

     (b) Persons entitled to bring an action under subsection (a) of this section may, if the

22

employer's alleged violations have caused similar injury to numerous employees or former

23

employees similarly situated and if they adequately represent the similarly situated employees or

24

former employees, bring an action on behalf of themselves and other similarly situated persons to

25

recover damages as provided for in this section.

26

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

27

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

28

of the action to be paid by the defendant.

29

     (d) In an action filed under this section, the court shall award affected employees or former

30

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

31

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

32

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

33

shall be paid directly to the individual.

34

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

 

LC004272 - Page 8 of 11

1

training from referring a matter to the attorney general as provided in § 37-25-8(c), from prohibiting

2

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

3

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

4

pursuant to § 37-25-3(c).

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

     37-25-9. Retaliation.

13

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

14

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

15

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

16

his or her behalf:

17

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

18

under this section; or

19

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

20

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

21

in a private right of action brought under this section. In the event a contractor or subcontractor

22

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

23

may file an action in any court of competent jurisdiction and the court shall order reinstatement

24

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

25

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

26

back pay and reasonable attorneys' fees and costs.

27

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

28

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

29

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

30

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

31

immigration authorities.

32

     37-25-10. Severability.

33

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

34

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

 

LC004272 - Page 9 of 11

1

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

2

affected.

3

     SECTION 2. This act shall take effect upon passage.

========

LC004272

========

 

LC004272 - Page 10 of 11

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO PUBLIC PROPERTY AND WORKS -- BUILDING SERVICE WORK

***

1

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

2

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

3

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

4

that standard compensation rate and its wage, benefit, and leave components.

5

     This act would take effect upon passage.

========

LC004272

========

 

LC004272 - Page 11 of 11