Senate Bill No. 560–Committee on Government Affairs

 

(On Behalf of Business and
Industry--Labor Commissioner)

 

March 26, 2001

____________

 

Referred to Committee on Government Affairs

 

SUMMARY—Makes various changes to provisions relating to employment practices and prevailing wages for public works. (BDR 28‑559)

 

FISCAL NOTE:    Effect on Local Government: Yes.

                                 Effect on the State: Yes.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to public works; requiring the attorney general to prosecute persons who violate certain provisions relating to employment of workmen on a public work; increasing the period within which a person may not be awarded a contract for a public work after being assessed an administrative penalty for committing an offense; revising the provisions governing the determination of the prevailing wages in a county; revising the provisions establishing which workmen are employed on a public work and subject to the provisions governing prevailing wages; requiring public bodies to investigate possible violations of certain provisions governing employment on a public work; requiring contractors and subcontractors to submit certain records concerning his workmen to a public body within a certain period; providing that a failure to maintain and provide such records within such period constitutes an offense which may subject the contractor or subcontractor to administrative penalties and civil liability; providing that a violation of certain regulations is a misdemeanor; changing monetary limits of certain penalties and fines; providing a penalty; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1    Section 1. NRS 338.010 is hereby amended to read as follows:

1-2    338.010  As used in this chapter:

1-3    1.  “Day labor” means all cases where public bodies, their officers,

1-4  agents or employees, hire, supervise and pay the wages thereof directly to a

1-5  workman or workmen employed by them on public works by the day and

1-6  not under a contract in writing.

2-1    2.  “Design-build contract” means a contract between a public body

2-2  and a design-build team in which the design-build team agrees to design

2-3  and construct a public work.

2-4    3.  “Design-build team” means an entity that consists of:

2-5    (a) At least one person who is licensed as a general engineering

2-6  contractor or a general building contractor pursuant to chapter 624 of NRS;

2-7  and

2-8    (b) For a public work that consists of:

2-9       (1) A building and its site, at least one person who holds a certificate

2-10  of registration to practice architecture pursuant to chapter 623 of NRS.

2-11      (2) Anything other than a building and its site, at least one person

2-12  who holds a certificate of registration to practice architecture pursuant to

2-13  chapter 623 of NRS or is licensed as a professional engineer pursuant to

2-14  chapter 625 of NRS.

2-15    4.  “Design professional” means a person with a professional license or

2-16  certificate issued pursuant to chapter 623, 623A or 625 of NRS.

2-17    5.  “Eligible bidder” means a person who is:

2-18    (a) Found to be a responsible and responsive contractor by a local

2-19  government which requests bids for a public work in accordance with

2-20  paragraph (b) of subsection 1 of NRS 338.1373; or

2-21    (b) Determined by a public body which awarded a contract for a public

2-22  work pursuant to NRS 338.1375 to 338.1389, inclusive, to be qualified to

2-23  bid on that contract pursuant to NRS 338.1379 or was exempt from

2-24  meeting such qualifications pursuant to NRS 338.1383.

2-25    6.  “Local government” means every political subdivision or other

2-26  entity which has the right to levy or receive money from ad valorem or

2-27  other taxes or any mandatory assessments, and includes, without limitation,

2-28  counties, cities, towns, boards, school districts and other districts organized

2-29  pursuant to chapters 244A, 309, 318, 379, 474, 541, 543 and 555 of NRS,

2-30  NRS 450.550 to 450.750, inclusive, and any agency or department of a

2-31  county or city which prepares a budget separate from that of the parent

2-32  political subdivision.

2-33    7.  “Offense” means failing to:

2-34    (a) Pay the prevailing wage required pursuant to this chapter;

2-35    (b) Pay the contributions for unemployment compensation required

2-36  pursuant to chapter 612 of NRS; [or]

2-37    (c) Provide and secure compensation for employees required pursuant

2-38  to chapters 616A to 617, inclusive, of NRS[.] ; or

2-39    (d) Comply with subsection 4 or 5 of NRS 338.070.

2-40    8.  “Prime contractor” means a person who:

2-41    (a) Contracts to construct an entire project;

2-42    (b) Coordinates all work performed on the entire project;

2-43    (c) Uses his own work force to perform all or a part of the construction,

2-44  repair or reconstruction of the project; and

2-45    (d) Contracts for the services of any subcontractor or independent

2-46  contractor or is responsible for payment to any contracted subcontractors or

2-47  independent contractors.

3-1    9.  “Public body” means the state, county, city, town, school district or

3-2  any public agency of this state or its political subdivisions sponsoring or

3-3  financing a public work.

3-4    10.  “Public work” means any project for the new construction, repair

3-5  or reconstruction of:

3-6    (a) A project financed in whole or in part from public money for:

3-7       (1) Public buildings;

3-8       (2) Jails and prisons;

3-9       (3) Public roads;

3-10      (4) Public highways;

3-11      (5) Public streets and alleys;

3-12      (6) Public utilities which are financed in whole or in part by public

3-13  money;

3-14      (7) Publicly owned water mains and sewers;

3-15      (8) Public parks and playgrounds;

3-16      (9) Public convention facilities which are financed at least in part

3-17  with public funds; and

3-18       (10) All other publicly owned works and property whose cost as a

3-19  whole exceeds $20,000.

3-20  Each separate unit that is a part of a project is included in the cost of the

3-21  project to determine whether a project meets that threshold.

3-22    (b) A building for the University and Community College System of

3-23  Nevada of which 25 percent or more of the costs of the building as a whole

3-24  are paid from money appropriated by this state or from federal money.

3-25    11.  “Specialty contractor” means a contractor whose operations as

3-26  such are the performance of construction work requiring special skill and

3-27  whose principal contracting business involves the use of specialized

3-28  building trades or crafts.

3-29    12.  “Stand-alone underground utility project” means an underground

3-30  utility project that is not integrated into a larger project, including, without

3-31  limitation:

3-32    (a) An underground sewer line or an underground pipeline for the

3-33  conveyance of water, including facilities appurtenant thereto; and

3-34    (b) A project for the construction or installation of a storm drain,

3-35  including facilities appurtenant thereto,

3-36  that is not located at the site of a public work for the design and

3-37  construction of which a public body is authorized to contract with a design-

3-38  build team pursuant to subsection 2 of NRS 338.1711.

3-39    13.  “Wages” means:

3-40    (a) The basic hourly rate of pay; and

3-41    (b) The amount of pension, health and welfare, vacation and holiday

3-42  pay, the cost of apprenticeship training or other similar programs or other

3-43  bona fide fringe benefits which are a benefit to the workman.

3-44    14.  “Workman” means a skilled mechanic, skilled workman,

3-45  semiskilled mechanic, semiskilled workman or unskilled workman. The

3-46  term does not include a design professional.

 

 

 

4-1    Sec. 2.  NRS 338.010 is hereby amended to read as follows:

4-2    338.010  As used in this chapter:

4-3    1.  “Day labor” means all cases where public bodies, their officers,

4-4  agents or employees, hire, supervise and pay the wages thereof directly to a

4-5  workman or workmen employed by them on public works by the day and

4-6  not under a contract in writing.

4-7    2.  “Eligible bidder” means a person who is:

4-8    (a) Found to be a responsible and responsive contractor by a local

4-9  government which requests bids for a public work in accordance with

4-10  paragraph (b) of subsection 1 of NRS 338.1373; or

4-11    (b) Determined by a public body which awarded a contract for a public

4-12  work pursuant to NRS 338.1375 to 338.1389, inclusive, to be qualified to

4-13  bid on that contract pursuant to NRS 338.1379 or was exempt from

4-14  meeting such qualifications pursuant to NRS 338.1383.

4-15    3.  “Local government” means every political subdivision or other

4-16  entity which has the right to levy or receive money from ad valorem or

4-17  other taxes or any mandatory assessments, and includes, without limitation,

4-18  counties, cities, towns, boards, school districts and other districts organized

4-19  pursuant to chapters 244A, 309, 318, 379, 474, 541, 543 and 555 of NRS,

4-20  NRS 450.550 to 450.750, inclusive, and any agency or department of a

4-21  county or city which prepares a budget separate from that of the parent

4-22  political subdivision.

4-23    4.  “Offense” means failing to:

4-24    (a) Pay the prevailing wage required pursuant to this chapter;

4-25    (b) Pay the contributions for unemployment compensation required

4-26  pursuant to chapter 612 of NRS; [or]

4-27    (c) Provide and secure compensation for employees required pursuant

4-28  to chapters 616A to 617, inclusive, of NRS[.] ; or

4-29    (d) Comply with subsection 4 or 5 of NRS 338.070.

4-30    5.  “Prime contractor” means a person who:

4-31    (a) Contracts to complete an entire project;

4-32    (b) Coordinates all work performed on the entire project;

4-33    (c) Uses his own work force to perform all or a part of the construction,

4-34  repair or reconstruction of the project; and

4-35    (d) Contracts for the services of any subcontractor or independent

4-36  contractor or is responsible for payment to any contracted subcontractors or

4-37  independent contractors.

4-38    6.  “Public body” means the state, county, city, town, school district or

4-39  any public agency of this state or its political subdivisions sponsoring or

4-40  financing a public work.

4-41    7.  “Public work” means any project for the new construction, repair or

4-42  reconstruction of:

4-43    (a) A project financed in whole or in part from public money for:

4-44      (1) Public buildings;

4-45      (2) Jails and prisons;

4-46      (3) Public roads;

4-47      (4) Public highways;

4-48      (5) Public streets and alleys;

5-1       (6) Public utilities which are financed in whole or in part by public

5-2  money;

5-3       (7) Publicly owned water mains and sewers;

5-4       (8) Public parks and playgrounds;

5-5       (9) Public convention facilities which are financed at least in part

5-6  with public funds; and

5-7       (10) Any other publicly owned works and property whose cost as a

5-8  whole exceeds $20,000. Each separate unit that is a part of a project is

5-9  included in the cost of the project to determine whether a project meets that

5-10  threshold.

5-11    (b) A building for the University and Community College System of

5-12  Nevada of which 25 percent or more of the costs of the building as a whole

5-13  are paid from money appropriated by this state or from federal money.

5-14    8.  “Wages” means:

5-15    (a) The basic hourly rate of pay; and

5-16    (b) The amount of pension, health and welfare, vacation and holiday

5-17  pay, the cost of apprenticeship training or other similar programs or other

5-18  bona fide fringe benefits which are a benefit to the workman.

5-19    9.  “Workman” means a skilled mechanic, skilled workman,

5-20  semiskilled mechanic, semiskilled workman or unskilled workman. The

5-21  term does not include a “design professional” as that term is defined in

5-22  NRS 338.155.

5-23    Sec. 3.  NRS 338.015 is hereby amended to read as follows:

5-24    338.015  1.  The labor commissioner shall enforce the provisions of

5-25  NRS 338.010 to 338.130, inclusive. When informed of [violations thereof,]

5-26  a violation of NRS 338.010 to 338.130, inclusive, the labor commissioner

5-27  may hold hearings on and assess [fines for violations] a fine of not more

5-28  than $5,000 for each violation of those provisions and shall report [those]

5-29  all violations to the [district attorney of the county in which the violations

5-30  occurred.] attorney general.

5-31    2.  The [district] attorney general shall prosecute the violator in

5-32  accordance with law.

5-33    Sec. 4.  NRS 338.017 is hereby amended to read as follows:

5-34    338.017  If any administrative penalty is imposed against a person for

5-35  the commission of an offense, that person, and the corporate officers, if

5-36  any, of that person, may not be awarded a contract for a public work[:

5-37    1.  For the first offense, for a period of 2 years after the date of the

5-38  imposition of the administrative penalty; and

5-39    2.  For the second or subsequent offense,] for a period of [3] 5 years

5-40  after the date of the imposition of the administrative penalty.

5-41    Sec. 5.  NRS 338.030 is hereby amended to read as follows:

5-42    338.030  1.  The public body awarding any contract for public work,

5-43  or otherwise undertaking any public work, shall ascertain from the labor

5-44  commissioner the prevailing wage in the county in which the public work

5-45  is to be performed for each craft or type of work.

5-46    2.  To establish a prevailing wage in each county, including Carson

5-47  City, the labor commissioner shall[, annually,] survey contractors who

5-48  have performed work in the county. Within 30 days after the determination

5-49  is issued[, any] :

6-1    (a) A public body or [any] person entitled under subsection 5 to be

6-2  heard may submit an objection to the labor commissioner with evidence to

6-3  substantiate that a different wage prevails[.] ; and

6-4    (b) Any person may submit information to the labor commissioner

6-5  that would support a change in the prevailing wage of a craft or type of

6-6  work by 50 cents or more per hour in any county.

6-7    3.  The labor commissioner shall hold a hearing in the locality in which

6-8  the work is to be executed if he:

6-9    (a) Is in doubt as to the prevailing wage; or

6-10    (b) [Receives information from any person which would change the

6-11  prevailing wage of a craft or a type of work by 50 cents or more per hour in

6-12  any county; or

6-13    (c)] Receives an objection or information pursuant to subsection 2.

6-14  The labor commissioner may hold only one hearing a year on the

6-15  prevailing wage of any craft or type of work in any county.

6-16    4.  Notice of the hearing must be advertised in a newspaper nearest to

6-17  the locality of the work once a week for 2 weeks before the time of the

6-18  hearing.

6-19    5.  At the hearing, any public body, the crafts affiliated with the state

6-20  federation of labor or other recognized national labor organizations , and

6-21  the contractors of the locality or their representatives must be heard. From

6-22  the evidence presented , the labor commissioner shall determine the

6-23  prevailing wage.

6-24    6.  The wages so determined must be filed by the labor commissioner,

6-25  and must be available to any public body which awards a contract for any

6-26  public work.

6-27    7.  Nothing contained in NRS 338.020 to 338.090, inclusive, may be

6-28  construed to authorize the fixing of any wage below any rate which may

6-29  now or hereafter be established as a minimum wage for any person

6-30  employed upon any public work, or employed by any officer or agent of

6-31  any political subdivision of the State of Nevada.

6-32    Sec. 6.  NRS 338.040 is hereby amended to read as follows:

6-33    338.040  [Workmen employed by contractors or subcontractors or by

6-34  public bodies at the site of]

6-35    1.  Except as otherwise provided by specific statute, workmen who

6-36  are:

6-37    (a) Performing work for the public work ; and [necessary]

6-38    (b) Necessary in the execution of [any] the contract for the public

6-39  [works] work,

6-40  are deemed to be employed on public works.

6-41    2.  The labor commissioner shall adopt regulations to define the

6-42  circumstances under which a workman is:

6-43    (a) Performing work for a public work; and

6-44    (b) Necessary in the execution of the contract for the public work.

6-45    Sec. 7.  NRS 338.050 is hereby amended to read as follows:

6-46    338.050  For the purpose of NRS 338.010 to 338.090, inclusive, except

6-47  as otherwise provided by specific statute, every workman [employed by a

6-48  contractor or subcontractor] who performs work on a public work covered

6-49  by a contract therefor [shall be] is subject to all of the provisions of NRS

7-1  338.010 to 338.090, inclusive, regardless of any contractual relationship

7-2  alleged to exist between [the contractor and subcontractor and] such

7-3  workman[.] and his employer.

7-4    Sec. 8.  NRS 338.060 is hereby amended to read as follows:

7-5    338.060  1.  A contractor engaged on public works shall forfeit, as a

7-6  penalty to the public body in behalf of which the contract has been made

7-7  and awarded to the contractor, not less than [$10] $20 nor more than [$25]

7-8  $50 for each calendar day or portion thereof that each workman employed

7-9  on the public work:

7-10    (a) Is paid less than the designated rate for any work done under the

7-11  contract, by the contractor or any subcontractor under him.

7-12    (b) Is not reported to the [labor commissioner and the] public body

7-13  awarding the contract as required pursuant to NRS 338.070.

7-14  The public body awarding the contract shall cause a stipulation to this

7-15  effect to be inserted in the contract.

7-16    2.  The labor commissioner shall, by regulation, establish a sliding

7-17  scale based on the size of the contractor’s business to determine the amount

7-18  of the penalty to be imposed pursuant to subsection 1.

7-19    3.  If a penalty is imposed pursuant to this section, the costs of the

7-20  proceeding, including investigative costs and attorney’s fees, may be

7-21  recovered by the labor commissioner.

7-22    Sec. 9.  NRS 338.070 is hereby amended to read as follows:

7-23    338.070  1.  Any public body and its officers or agents awarding a

7-24  contract shall:

7-25    (a) [Take cognizance of complaints of] Investigate possible violations

7-26  of the provisions of NRS 338.010 to 338.090, inclusive, committed in the

7-27  course of the execution of the contract[;] and determine whether a

7-28  violation has been committed and inform the labor commissioner of any

7-29  such violations; and

7-30    (b) When making payments to the contractor of money becoming due

7-31  under the contract, withhold and retain all sums forfeited pursuant to the

7-32  provisions of NRS 338.010 to 338.090, inclusive.

7-33    2.  No sum may be withheld, retained or forfeited, except from the final

7-34  payment, without a full investigation being made by the awarding body or

7-35  its agents.

7-36    3.  It is lawful for any contractor to withhold from any subcontractor

7-37  under him sufficient sums to cover any penalties withheld from him by the

7-38  awarding body on account of the failure of the subcontractor to comply

7-39  with the terms of NRS 338.010 to 338.090, inclusive. If payment has

7-40  already been made to the subcontractor, the contractor may recover from

7-41  him the amount of the penalty or forfeiture in a suit at law.

7-42    4.  The contractor and each subcontractor shall keep or cause to be kept

7-43  an accurate record showing the name, the occupation and the actual per

7-44  diem, wages and benefits paid to each workman employed by him in

7-45  connection with the public work.

7-46    5.  The record must be open at all reasonable hours to the inspection of

7-47  the public body awarding the contract, and its officers and agents. [A] The

7-48  contractor or subcontractor shall ensure that a copy of the record for

7-49  each calendar month [must be sent to the labor commissioner and] is

8-1  received by the public body awarding the contract no later than [1 week] 10

8-2  days after the end of the month. The copy must be open to public

8-3  inspection as provided in NRS 239.010. The record in the possession of the

8-4  public body awarding the contract may be discarded by the public body 1

8-5  year after final payment is made by the public body for the public work.

8-6    6.  Any contractor or subcontractor, or agent or representative thereof,

8-7  [doing] performing work on a public work who neglects to comply with

8-8  the provisions of this section is guilty of a misdemeanor.

8-9    Sec. 10.  NRS 338.090 is hereby amended to read as follows:

8-10    338.090  1.  Any person, including the officers, agents or employees

8-11  of a public body, who violates any of the provisions of NRS 338.010 to

8-12  338.080, inclusive, or any regulation adopted pursuant thereto, is guilty

8-13  of a misdemeanor.

8-14    2.  The labor commissioner, in addition to any other penalty provided

8-15  in this chapter:

8-16    (a) Shall assess a person who, after a hearing, is found to have failed to

8-17  pay the prevailing wage required pursuant to NRS 338.020 to 338.090,

8-18  inclusive, an amount equal to the difference between the prevailing wages

8-19  required to be paid and the wages he actually paid; and

8-20    (b) May in addition impose an administrative fine not to exceed the

8-21  costs he incurred to investigate and prosecute the matter.

8-22    Sec. 11.  The amendatory provisions of this act do not apply to

8-23  offenses or violations that are committed before July 1, 2001.

8-24    Sec. 12.  1.  This section and sections 3 to 11, inclusive, of this act

8-25  become effective on July 1, 2001.

8-26    2.  Section 1 of this act becomes effective on July 1, 2001, and expires

8-27  by limitation on October 1, 2003.

8-28    3.  Section 2 of this act becomes effective at 12:01 a.m. on
October 1, 2003.

 

8-29  H