(REPRINTED WITH ADOPTED AMENDMENTS)
FIRST REPRINT S.B. 560
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.
Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).
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; clarifying the duties of 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 labor commissioner may, by regulation, establish a sliding
5-32 scale based on the severity of the violation to determine the amount of the
5-33 fine to be assessed pursuant to subsection 1.
5-34 3. The [district] attorney general shall prosecute the violator in
5-35 accordance with law.
5-36 Sec. 4. NRS 338.017 is hereby amended to read as follows:
5-37 338.017 If any administrative penalty is imposed against a person for
5-38 the commission of an offense, that person, and the corporate officers, if
5-39 any, of that person, may not be awarded a contract for a public work:
5-40 1. For the first offense, for a period of [2] 3 years after the date of the
5-41 imposition of the administrative penalty; and
5-42 2. For the second or subsequent offense for a period of [3] 5 years after
5-43 the date of the imposition of the administrative penalty.
5-44 Sec. 5. NRS 338.030 is hereby amended to read as follows:
5-45 338.030 1. The public body awarding any contract for public work,
5-46 or otherwise undertaking any public work, shall ascertain from the labor
5-47 commissioner the prevailing wage in the county in which the public work
5-48 is to be performed for each craft or type of work.
6-1 2. To establish a prevailing wage in each county, including Carson
6-2 City, the labor commissioner shall, annually, survey contractors who have
6-3 performed work in the county. Within 30 days after the determination is
6-4 issued[, any] :
6-5 (a) A public body or [any] person entitled under subsection 5 to be
6-6 heard may submit an objection to the labor commissioner with evidence to
6-7 substantiate that a different wage prevails[.] ; and
6-8 (b) Any person may submit information to the labor commissioner
6-9 that would support a change in the prevailing wage of a craft or type of
6-10 work by 50 cents or more per hour in any county.
6-11 3. The labor commissioner shall hold a hearing in the locality in which
6-12 the work is to be executed if he:
6-13 (a) Is in doubt as to the prevailing wage; or
6-14 (b) [Receives information from any person which would change the
6-15 prevailing wage of a craft or a type of work by 50 cents or more per hour in
6-16 any county; or
6-17 (c)] Receives an objection or information pursuant to subsection 2.
6-18 The labor commissioner may hold only one hearing a year on the
6-19 prevailing wage of any craft or type of work in any county.
6-20 4. Notice of the hearing must be advertised in a newspaper nearest to
6-21 the locality of the work once a week for 2 weeks before the time of the
6-22 hearing.
6-23 5. At the hearing, any public body, the crafts affiliated with the state
6-24 federation of labor or other recognized national labor organizations , and
6-25 the contractors of the locality or their representatives must be heard. From
6-26 the evidence presented , the labor commissioner shall determine the
6-27 prevailing wage.
6-28 6. The wages so determined must be filed by the labor commissioner,
6-29 and must be available to any public body which awards a contract for any
6-30 public work.
6-31 7. Nothing contained in NRS 338.020 to 338.090, inclusive, may be
6-32 construed to authorize the fixing of any wage below any rate which may
6-33 now or hereafter be established as a minimum wage for any person
6-34 employed upon any public work, or employed by any officer or agent of
6-35 any political subdivision of the State of Nevada.
6-36 Sec. 6. NRS 338.040 is hereby amended to read as follows:
6-37 338.040 [Workmen employed by contractors or subcontractors or by
6-38 public bodies at the site of]
6-39 1. Except as otherwise provided by specific statute, workmen who
6-40 are:
6-41 (a) Employed at the site of the public work ; and [necessary]
6-42 (b) Necessary in the execution of [any] the contract for the public
6-43 [works] work,
6-44 are deemed to be employed on public works.
6-45 2. The labor commissioner shall adopt regulations to define the
6-46 circumstances under which a workman is:
6-47 (a) Employed at the site of a public work; and
6-48 (b) Necessary in the execution of the contract for the public work.
7-1 Sec. 7. NRS 338.050 is hereby amended to read as follows:
7-2 338.050 For the purpose of NRS 338.010 to 338.090, inclusive, except
7-3 as otherwise provided by specific statute, every workman [employed by a
7-4 contractor or subcontractor on] who performs work for a public work
7-5 covered by a contract therefor [shall be] is subject to all of the provisions
7-6 of NRS 338.010 to 338.090, inclusive, regardless of any contractual
7-7 relationship alleged to exist between [the contractor and subcontractor and]
7-8 such workman[.] and his employer.
7-9 Sec. 8. NRS 338.060 is hereby amended to read as follows:
7-10 338.060 1. A contractor engaged on public works shall forfeit, as a
7-11 penalty to the public body in behalf of which the contract has been made
7-12 and awarded to the contractor, not less than [$10] $20 nor more than [$25]
7-13 $50 for each calendar day or portion thereof that each workman employed
7-14 on the public work:
7-15 (a) Is paid less than the designated rate for any work done under the
7-16 contract, by the contractor or any subcontractor under him.
7-17 (b) Is not reported to the [labor commissioner and the] public body
7-18 awarding the contract as required pursuant to NRS 338.070.
7-19 The public body awarding the contract shall cause a stipulation to this
7-20 effect to be inserted in the contract.
7-21 2. The labor commissioner shall, by regulation, establish a sliding
7-22 scale based on the size of the contractor’s business to determine the amount
7-23 of the penalty to be imposed pursuant to subsection 1.
7-24 3. If a penalty is imposed pursuant to this section, the costs of the
7-25 proceeding, including investigative costs and attorney’s fees, may be
7-26 recovered by the labor commissioner.
7-27 Sec. 9. NRS 338.070 is hereby amended to read as follows:
7-28 338.070 1. Any public body and its officers or agents awarding a
7-29 contract shall:
7-30 (a) [Take cognizance of complaints of] Investigate possible violations
7-31 of the provisions of NRS 338.010 to 338.090, inclusive, committed in the
7-32 course of the execution of the contract[;] and determine whether a
7-33 violation has been committed and inform the labor commissioner of any
7-34 such violations; and
7-35 (b) When making payments to the contractor of money becoming due
7-36 under the contract, withhold and retain all sums forfeited pursuant to the
7-37 provisions of NRS 338.010 to 338.090, inclusive.
7-38 2. No sum may be withheld, retained or forfeited, except from the final
7-39 payment, without a full investigation being made by the awarding body or
7-40 its agents.
7-41 3. It is lawful for any contractor to withhold from any subcontractor
7-42 under him sufficient sums to cover any penalties withheld from him by the
7-43 awarding body on account of the failure of the subcontractor to comply
7-44 with the terms of NRS 338.010 to 338.090, inclusive. If payment has
7-45 already been made to the subcontractor, the contractor may recover from
7-46 him the amount of the penalty or forfeiture in a suit at law.
7-47 4. The contractor and each subcontractor shall keep or cause to be kept
7-48 an accurate record showing the name, the occupation and the actual per
8-1 diem, wages and benefits paid to each workman employed by him in
8-2 connection with the public work.
8-3 5. The record must be open at all reasonable hours to the inspection of
8-4 the public body awarding the contract, and its officers and agents. [A] The
8-5 contractor or subcontractor shall ensure that a copy of the record for
8-6 each calendar month [must be sent to the labor commissioner and] is
8-7 received by the public body awarding the contract no later than [1 week] 10
8-8 days after the end of the month. The copy must be open to public
8-9 inspection as provided in NRS 239.010. The record in the possession of the
8-10 public body awarding the contract may be discarded by the public body [1
8-11 year] 2 years after final payment is made by the public body for the public
8-12 work.
8-13 6. Any contractor or subcontractor, or agent or representative thereof,
8-14 [doing] performing work for a public work who neglects to comply with
8-15 the provisions of this section is guilty of a misdemeanor.
8-16 Sec. 10. NRS 338.090 is hereby amended to read as follows:
8-17 338.090 1. Any person, including the officers, agents or employees
8-18 of a public body, who violates any of the provisions of NRS 338.010 to
8-19 338.080, inclusive, or any regulation adopted pursuant thereto, is guilty
8-20 of a misdemeanor.
8-21 2. The labor commissioner, in addition to any other penalty provided
8-22 in this chapter:
8-23 (a) Shall assess a person who, after a hearing, is found to have failed to
8-24 pay the prevailing wage required pursuant to NRS 338.020 to 338.090,
8-25 inclusive, an amount equal to the difference between the prevailing wages
8-26 required to be paid and the wages he actually paid; and
8-27 (b) May in addition impose an administrative fine not to exceed the
8-28 costs he incurred to investigate and prosecute the matter.
8-29 Sec. 11. The amendatory provisions of this act do not apply to
8-30 offenses or violations that are committed before July 1, 2001.
8-31 Sec. 12. 1. This section and sections 3 to 11, inclusive, of this act
8-32 become effective on July 1, 2001.
8-33 2. Section 1 of this act becomes effective on July 1, 2001, and expires
8-34 by limitation on October 1, 2003.
8-35 3. Section 2 of this act becomes effective at 12:01 a.m. on
8-36 October 1, 2003.
8-37 H