Senate Bill No. 114–Committee on Government Affairs

 

February 13, 2003

____________

 

Referred to Committee on Government Affairs

 

SUMMARY—Revises provisions governing manner of determining prevailing rate of wages to be paid on public works. (BDR 28‑401)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

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

 

AN ACT relating to public works; revising provisions governing the manner of determining the prevailing rate of wages to be paid on public works; 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

1-4  officers, agents or employees, hire, supervise and pay the wages

1-5  thereof directly to a workman or workmen employed by them on

1-6  public works by the day and not under a contract in writing.

1-7  2.  “Design-build contract” means a contract between a public

1-8  body and a design-build team in which the design-build team agrees

1-9  to design and construct a public work.

1-10      3.  “Design-build team” means an entity that consists of:

1-11      (a) At least one person who is licensed as a general engineering

1-12  contractor or a general building contractor pursuant to chapter 624

1-13  of NRS; and

1-14      (b) For a public work that consists of:

1-15          (1) A building and its site, at least one person who holds a

1-16  certificate of registration to practice architecture pursuant to chapter

1-17  623 of NRS.

2-1       (2) Anything other than a building and its site, at least one

2-2  person who holds a certificate of registration to practice architecture

2-3  pursuant to chapter 623 of NRS or is licensed as a professional

2-4  engineer pursuant to chapter 625 of NRS.

2-5  4.  “Design professional” means:

2-6  (a) A person who is licensed as a professional engineer pursuant

2-7  to chapter 625 of NRS;

2-8  (b) A person who is licensed as a professional land surveyor

2-9  pursuant to chapter 625 of NRS;

2-10      (c) A person who holds a certificate of registration to engage in

2-11  the practice of architecture pursuant to chapter 623 of NRS;

2-12      (d) A person who holds a certificate of registration to engage in

2-13  the practice of landscape architecture pursuant to chapter 623A of

2-14  NRS; or

2-15      (e) A business entity that engages in the practice of professional

2-16  engineering, land surveying, architecture or landscape architecture.

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

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

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

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

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

2-22  public work pursuant to NRS 338.1375 to 338.139, inclusive, to be

2-23  qualified to bid on that contract pursuant to NRS 338.1379 or

2-24  was exempt from meeting such qualifications pursuant to

2-25  NRS 338.1383.

2-26      6.  “General contractor” means a person who is licensed to

2-27  conduct business in one, or both, of the following branches of the

2-28  contracting business:

2-29      (a) General engineering contracting, as described in subsection 2

2-30  of NRS 624.215.

2-31      (b) General building contracting, as described in subsection 3 of

2-32  NRS 624.215.

2-33      7.  “Local government” means every political subdivision or

2-34  other entity which has the right to levy or receive money from ad

2-35  valorem or other taxes or any mandatory assessments, and includes,

2-36  without limitation, counties, cities, towns, boards, school districts

2-37  and other districts organized pursuant to chapters 244A, 309, 318,

2-38  379, 474, 541, 543 and 555 of NRS, and NRS 450.550 to 450.750,

2-39  inclusive, and any agency or department of a county or city which

2-40  prepares a budget separate from that of the parent political

2-41  subdivision.

2-42      8.  “Offense” means failing to:

2-43      (a) Pay the prevailing wage required pursuant to this chapter;

2-44      (b) Pay the contributions for unemployment compensation

2-45  required pursuant to chapter 612 of NRS;

3-1  (c) Provide and secure compensation for employees required

3-2  pursuant to chapters 616A to 617, inclusive, of NRS; or

3-3  (d) Comply with subsection 4 or 5 of NRS 338.070.

3-4  9.  “Prime contractor” means a person who:

3-5  (a) Contracts to construct an entire project;

3-6  (b) Coordinates all work performed on the entire project;

3-7  (c) Uses his own workforce to perform all or a part of the

3-8  construction, repair or reconstruction of the project; and

3-9  (d) Contracts for the services of any subcontractor or

3-10  independent contractor or is responsible for payment to any

3-11  contracted subcontractors or independent contractors.

3-12  The term includes, without limitation, a general contractor or a

3-13  specialty contractor who is authorized to bid on a project pursuant to

3-14  NRS 338.139 or 338.148.

3-15      10.  “Public body” means the State, county, city, town, school

3-16  district or any public agency of this state or its political subdivisions

3-17  sponsoring or financing a public work.

3-18      11.  “Public work” means any project for the new construction,

3-19  repair or reconstruction of:

3-20      (a) A project financed in whole or in part from public money

3-21  for:

3-22          (1) Public buildings;

3-23          (2) Jails and prisons;

3-24          (3) Public roads;

3-25          (4) Public highways;

3-26          (5) Public streets and alleys;

3-27          (6) Public utilities which are financed in whole or in part by

3-28  public money;

3-29          (7) Publicly owned water mains and sewers;

3-30          (8) Public parks and playgrounds;

3-31          (9) Public convention facilities which are financed at least in

3-32  part with public funds; and

3-33          (10) All other publicly owned works and property whose cost

3-34  as a whole exceeds $20,000. Each separate unit that is a part of a

3-35  project is included in the cost of the project to determine whether a

3-36  project meets that threshold.

3-37      (b) A building for the University and Community College

3-38  System of Nevada of which 25 percent or more of the costs of the

3-39  building as a whole are paid from money appropriated by this state

3-40  or from federal money.

3-41      12.  “Recognized class of workmen” means a class of

3-42  workmen recognized by the Labor Commissioner as being a

3-43  distinct craft or performing a distinct type of work for the purpose

3-44  of establishing prevailing rates of wages.

4-1  13. “Specialty contractor” means a person who is licensed to

4-2  conduct business as described in subsection 4 of NRS 624.215.

4-3  [13.] 14. “Stand-alone underground utility project” means an

4-4  underground utility project that is not integrated into a larger

4-5  project, including, without limitation:

4-6  (a) An underground sewer line or an underground pipeline for

4-7  the conveyance of water, including facilities appurtenant thereto;

4-8  and

4-9  (b) A project for the construction or installation of a storm drain,

4-10  including facilities appurtenant thereto,

4-11  that is not located at the site of a public work for the design and

4-12  construction of which a public body is authorized to contract with a

4-13  design-build team pursuant to subsection 2 of NRS 338.1711.

4-14      [14.] 15. “Wages” means:

4-15      (a) The basic hourly rate of pay; and

4-16      (b) The amount of pension, health and welfare, vacation and

4-17  holiday pay, the cost of apprenticeship training or other similar

4-18  programs or other bona fide fringe benefits which are a benefit to

4-19  the workman.

4-20      [15.] 16. “Workman” means a skilled mechanic, skilled

4-21  workman, semiskilled mechanic, semiskilled workman or unskilled

4-22  workman. The term does not include a design professional.

4-23      Sec. 2.  NRS 338.020 is hereby amended to read as follows:

4-24      338.020  1.  Every contract to which a public body of this state

4-25  is a party, requiring the employment of [skilled mechanics, skilled

4-26  workmen, semiskilled mechanics, semiskilled workmen or unskilled

4-27  labor] workmen in the performance of public work, must contain in

4-28  express terms the hourly and daily rate of wages to be paid to each

4-29  of the recognized classes of [mechanics and] workmen. The hourly

4-30  and daily rate of wages must:

4-31      (a) Not be less than the rate of such wages then prevailing in the

4-32  county in which the public work is located, which prevailing rate of

4-33  wages must have been determined in the manner provided in NRS

4-34  338.030; and

4-35      (b) Be posted on the site of the public work in a place generally

4-36  visible to the workmen.

4-37      2.  When public work is performed by day labor, the prevailing

4-38  wage for each recognized class of [mechanics and] workmen so

4-39  employed applies and must be stated clearly to such [mechanics

4-40  and] workmen when employed.

4-41      3.  The prevailing wage [so] paid to each class of [mechanics

4-42  or] workmen must be in accordance with the [jurisdictional classes]

4-43  recognized classes of workmen in the locality where the work is

4-44  performed.

5-1  4.  Nothing in this section prevents an employer who is

5-2  signatory to a collective bargaining agreement from assigning such

5-3  work in accordance with established practice.

5-4  Sec. 3.  NRS 338.030 is hereby amended to read as follows:

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

5-6  work, or otherwise undertaking any public work, shall ascertain

5-7  from the Labor Commissioner the prevailing wage in the county in

5-8  which the public work is to be performed for each [craft or type of

5-9  work.

5-10      2.  To establish a prevailing wage in each county, including

5-11  Carson City,] recognized class of workmen that will be employed

5-12  on the public work.

5-13      2.  Based on the information set forth in subsection 3, the

5-14  Labor Commissioner shall, annually, [survey contractors who have

5-15  performed work in the county.] determine the prevailing rate of

5-16  wages to be paid to each recognized class of workmen in each

5-17  county, including, without limitation, Carson City, as follows:

5-18      (a) Where the rate of wages is the same for the majority of the

5-19  total hours worked by a recognized class of workmen who are

5-20  employed in the county, that rate must be determined to be the

5-21  prevailing rate.

5-22      (b) Where there is no such majority, the prevailing rate for a

5-23  recognized class of workmen must be determined to be the average

5-24  rate of wages paid per hour, based on the number of hours worked

5-25  per rate, to a recognized class of workmen who are employed in

5-26  the county.

5-27      (c) If there has been no construction performed in the county

5-28  using a particular recognized class of workmen in the immediately

5-29  preceding year, the Labor Commissioner shall consider rates of

5-30  wages paid to that recognized class of workmen in other areas of

5-31  the State.

5-32      3.  The types of information that the Labor Commissioner

5-33  shall consider in making determinations of prevailing rates of

5-34  wages include, without limitation:

5-35      (a) Statements showing rates of wages paid on public and

5-36  private projects, where the statements are signed by the

5-37  contractors or their representatives and contain:

5-38          (1) The names and addresses of the contractors and

5-39  subcontractors;

5-40          (2) The locations, approximate costs, dates of construction

5-41  and types of projects;

5-42          (3) The number of hours each recognized class of workmen

5-43  is employed on each project; and

5-44          (4) The respective rates of wages paid to each recognized

5-45  class of workmen employed on each project.

6-1  (b) Signed collective bargaining agreements that are on file

6-2  with the Labor Commissioner on or before September 1 of each

6-3  year preceding the annual determination of the prevailing rates of

6-4  wages.

6-5  (c) Rates of wages determined by officials of the Federal

6-6  Government for public construction and other information

6-7  furnished by state and federal agencies.

6-8  The Labor Commissioner may exclude from consideration any

6-9  information submitted to him that is untimely filed, duplicative,

6-10  incomplete or determined by the Labor Commissioner to be

6-11  unverifiable.

6-12      4.  If the Labor Commissioner determines that the prevailing

6-13  rate of wages for a recognized class of workmen is a wage which

6-14  has been collectively bargained, the Labor Commissioner may

6-15  consider wage and benefit adjustments and classifications of

6-16  workmen established in the collective bargaining agreement and

6-17  may adjust the prevailing rate of wages for the recognized class of

6-18  workmen in accordance with wage and benefit adjustments and

6-19  classifications of workmen in the collective bargaining agreement.

6-20      5.  Within 30 days after the [determination is issued:] Labor

6-21  Commissioner determines the prevailing rates of wages in each

6-22  county:

6-23      (a) A public body or person entitled under subsection [5] 8 to be

6-24  heard may submit an objection to the Labor Commissioner with

6-25  evidence to substantiate that a different wage for a recognized class

6-26  of workmen prevails; and

6-27      (b) Any person may submit information to the Labor

6-28  Commissioner that would support a change in the prevailing wage

6-29  [of a craft or type of work] for a recognized class of workmen by

6-30  50 cents or more per hour in any county.

6-31      [3.] 6. The Labor Commissioner shall hold a hearing in the

6-32  locality in which the work is to be executed if he:

6-33      (a) Is in doubt as to the prevailing wage[;] for a recognized

6-34  class of workmen; or

6-35      (b) Receives an objection or information pursuant to

6-36  subsection [2.] 5.

6-37  The Labor Commissioner may hold only one hearing a year on the

6-38  prevailing wage [of any craft or type of work] for a recognized

6-39  class of workmen in any county.

6-40      [4.] 7. Notice of the hearing must be advertised in a newspaper

6-41  nearest to the locality of the work once a week for 2 weeks before

6-42  the time of the hearing.

6-43      [5.] 8. At the hearing, any public body, the crafts affiliated

6-44  with the state federation of labor or other recognized national

6-45  labor organizations, and the contractors of the locality or their

7-1  representatives must be heard. From the evidence presented, the

7-2  Labor Commissioner shall determine the prevailing wage.

7-3  [6.] The wages so determined must be [filed by] maintained

7-4  on file at the Office of the Labor Commissioner and must be

7-5  available to any public body which awards a contract for any public

7-6  work.

7-7  [7.] 9. Nothing contained in NRS 338.020 to 338.090,

7-8  inclusive, may be construed to authorize the fixing of any wage

7-9  below any rate which may now or hereafter be established as a

7-10  minimum wage for any person employed upon any public work, or

7-11  employed by any officer or agent of any political subdivision of the

7-12  State of Nevada.

7-13      10.  As used in this section, “representative” means:

7-14      (a) An agent, officer or employee of a contractor or

7-15  subcontractor who has been authorized to act in such a capacity

7-16  by the contractor or subcontractor; or

7-17      (b) Any other person empowered by a written agreement with

7-18  the contractor or subcontractor that authorizes the person to act

7-19  on behalf of the contractor or subcontractor in submitting the

7-20  information required pursuant to paragraph (a) of subsection 3.

7-21      Sec. 4.  The administrative regulations adopted by the Labor

7-22  Commissioner which are codified as NAC 338.010 and 338.020 are

7-23  hereby declared void. In preparing the supplements to the Nevada

7-24  Administrative Code on or after July 1, 2003, the Legislative

7-25  Counsel shall remove those regulations.

7-26      Sec. 5.  This act becomes effective on July 1, 2003.

 

7-27  H