SB 98 — PUBLIC PROJECT PREVAILING WAGE COMPLAINTS

SENATE BILL 98 54TH LEGISLATURE - STATEOFNEWMEXICO- SECOND SESSION , 2020 INTRODUCED BY Jacob R.

Candelaria This document incorporates amendments that have been adopted during the current legislative session.

The document is a tool to show the amendments in context and is not to be used for the purpose of amendments.

PROVIDING A PROCESS TO h RESOLVE PREVAILING WAGE COMPLAINTS;

g5 o t hr g e i k BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

h r i s SECTION 1.

Section 13-4-11 NMSA 1978 (being Laws 1965, h , t, Chapter 35, Section 1, as amended) is amended to read:

e u g e b l e e h "13-4-11.

PREVAILING WAGE AND BENEFIT RATES DETERMINED--DETERMINED--MINIMUM n d d i = = o h MINIMUM WAGES AND FRINGE BENEFITS ON PUBLIC WORKS--WEEKLY l ] b ,d i a º e PAYMENT--WITHHOLDING FUNDS.-- r i = r t e w d m a n o A.

Every contract or project in excess of sixty dthousand mdollars :($60,000) that the state or any political subdivision thereof is a party to for construction, alteration, demolition or repair or any combination of these, including painting and decorating, of public buildings, public works or public roads of the state and that requires or involves the employment of mechanics, laborers or both shall contain a provision stating the minimum wages and fringe benefits to be paid to various classifications of laborers and mechanics, which shall be based upon the wages and benefits that will be determined by the director to be prevailing for the corresponding classifications of laborers and mechanics employed on contract work of a similar nature in the state or locality, and every contract or project shall contain a stipulation that the contractor, subcontractor, SJC/SB 98 Page 1 employer or a person acting as a contractor shall pay all mechanics and laborers employed on the site of the project, unconditionally and not less often than once a week and without subsequent unlawful deduction or rebate on any account, the full amounts accrued at time of payment computed at wage rates and fringe benefit rates not less than those determined pursuant to Subsection B of this section to be the prevailing wage rates and prevailing fringe benefit rates issued for the project.

bB. e d s º o t n = .216399.1AIC February 8, 2020 (2:28pm) s k m e e a n e d r e l u [ A d thousand dollars ($60,000) that the state or any political subdivision thereof is a party to for construction, alteration, demolition or repair or any combination of these, including painting and decorating, of public buildings, public works or public roads of the state and that requires or involves the employment of mechanics, laborers or both shall contain a provision stating the minimum wages and fringe benefits to be paid to various [classes ] classifications of laborers and mechanics, which shall be based upon the wages and benefits that will be determined by the director to be prevailing for the corresponding [classes ] classifications of laborers and mechanics employed on contract work of a similar nature in the state or locality, and every contract or project shall contain a stipulation that the contractor, subcontractor, employer or a person acting as a contractor shall pay all mechanics and laborers employed on the site of the project, unconditionally h and not less often than once a week and without subsequent u » r unlawful deduction or rebate on any account, the full amounts t h g e l i accrued at time of payment computed at wage rates and fringe h r i s benefit rates not less than those determined pursuant to h , e h Subsection B of this section to be the prevailing wage rates t u g e b l e e , gh and prevailing fringe benefit rates issued for the project.

nAnnually, dthe ddirector ishall =determine =prevailing owage hrates B.and prevailing fringe benefit rates for respective classifications of laborers and mechanics employed on public works projects at the same wage rates and fringe benefit rates used in collective bargaining agreements between labor organizations and their signatory employers that govern predominantly similar classifications of laborers and mechanics for the locality of the public works project and the crafts involved;

Annually , the director shall determine l ] b ,d i a º r prevailing wage rates and prevailing fringe benefit rates for e r = t e w d m a n o respective [classes ] classifications of laborers and mechanics d m :

b r e t º o t n = .216399.1AIC February 8, 2020 (2:28pm) s k m e - 2 - e a n e d r e l u [ A d employed on public works projects at the same wage rates and fringe benefit rates used in collective bargaining agreements between labor organizations and their signatory employers that govern predominantly similar [classes or ] classifications of laborers and mechanics for the locality of the public works project and the crafts involved;

(1) if the prevailing wage rates and prevailing fringe benefit rates cannot reasonably and fairly be determined in a locality because no collective bargaining agreements exist, the director shall determine the prevailing wage rates and prevailing fringe benefit rates for the same or most similar [class or ] classification of laborer or mechanic in the nearest and most similar neighboring locality in which SJC/SB 98 Page 2 collective bargaining agreements exist;

(2) the director shall give due regard to information obtained during the director's determination of the h prevailing wage rates and the prevailing fringe benefit rates u » r made pursuant to this subsection;

t h g e l i (3) any interested person shall have the right h r i s to submit to the director written data, personal opinions and h , e h arguments supporting changes to the prevailing wage rate and t u g e b l e e , gh prevailing fringe benefit rate determination;

and n d d i = = o h (4) prevailing wage rates and prevailing l ] b ,d i a º r fringe benefit rates determined pursuant to the provisions of ethis rsection =shall tbe ecompiled was dofficial mrecords aand nkept oon thisfile sectionin the director's office, and the records shall be compiledupdated asin officialaccordance recordswith andthe keptapplicable onrates dused min :subsequent collective bargaining agreements.

b r e t º o t n = .216399.1AIC February 8, 2020 (2:28pm) s k m e - 3 - e a n e d r e l u [ A d file in the director's office, and the records shall be updated in accordance with the applicable rates used in subsequent collective bargaining agreements.

[and it is further ] provided that there [may ] shall be withheld from the contractor, subcontractor, employer or a person acting as a contractor so much of accrued payments as may be considered necessary by the director or contracting officer of the state or political subdivision to pay to laborers and mechanics employed on the SJC/SB 98 Page 3 project the difference between the prevailing wage rates and prevailing fringe benefit rates required by the director to be paid to laborers and mechanics on the work and the wage rates and fringe benefit rates received by the h laborers and mechanics and not refunded to the contractor, u » r subcontractor, employer or a person acting as a contractor or t h g e l i the contractor's, [subconstractor's ] subcontractor's, h r i s employer's or person's agents.

h , e h D.

UponCertified requestweekly bypayroll arecords person,of a contracting agency tare usubject gto einspection bpursuant lto ethe eInspection , gh shall, within twenty days of suchPublic request,Records provideAct; copies of n d d i = = o h certified weekly payroll records to the requesting person.

lprovided ]that bthe ,drequest ishall abe ºfulfilled rwithin [D.]twenty E.days of receipt of the written request.

NotwithstandingCertified anyweekly otherpayroll provisionrecords ofare lawsubject eto rrecord =retention trequirements e w d m a n o applicable to publicpayroll worksrecords contractsof ora agreements,state theagency. d m :

bE. r e t º o t n = .216399.1AIC February 8, 2020 (2:28pm) s k m e - 4 - e a n e d r e l u [ A d director may, with cause:

Notwithstanding any other provision of law applicable to public works contracts or agreements, the director may, with cause:

and (2) attach and prohibit the release of any assurance of payment required under Section 13-4-18 NMSA 1978 for a reasonable period of time beyond the time limits specified in that section until the director satisfactorily resolves any probable cause to believe a violation of the SJC/SB 98 Page 4 Public Works Minimum Wage Act or its implementing rules has taken place.

A person may file with the director a complaint that a contractor, subcontractor, employer or person acting as a contractor on the project has failed to pay the person wages or fringe benefits at the rates required by the Public Works Minimum Wage Act.

SPACºWithinWithin thirty days after the filing of the complaint, h either party may request in writing a mediation to resolve the u » r complaint.

tG. h g e l i G.»SPAC The director shall, within thirty days of h r i s the filing of the complaint, commence an investigation of the h , e h allegations contained in the complaint.

The director shall, t u g e b l e e , gh within seventy-fivethirty days SPACºof»SPAC SPACºafter the n d d i = = o h completion of mediation or, if no mediation is requested, l ] b ,d i a º r within seventy-five days after»SPAC the filing of the e r = t e w d m a n o complaint, makecommence aan determinationinvestigation supportedof bythe findingsallegations ofcontained factin dthe mcomplaint. :

bThe rdirector eshall, twithin ºseventy-five odays tafter nthe =completion .216399.1AICof Februarymediation 8,or 2020if (2:28pm)no smediation kis mrequested, ewithin -seventy-five 5days -after ethe afiling nof ethe dcomplaint, rmake ea ldetermination usupported [by Afindings dof fact and conclusions of law whether there has been an underpayment of wages or fringe benefits or other violation of the Public Works Minimum Wage Act;

SPACºPriorPrior to issuing a determination, the director shall provide the contractor, subcontractor, employer or other person SJC/SB 98 Page 5 against whom the complaint has been filed with an opportunity to respond to the complaint and provide any exculpatory evidence.»SPACevidence. SPACºG.»SPAC SPACºH.»SPAC If the director determines that there has been an underpayment of wages or fringe benefits or a violation of the Public Works Minimum Wage Act, the director shall, in the absence of a voluntary h resolution by the parties and within thirty days of making that u » r determination, order the withholding of accrued payments as t h g e l i provided in Subsection C of this section.

hH. r i s [E.] SPACºH.»SPAC SPACºI.»SPAC The director shall h , e h issue rules necessary to administer and accomplish the purposes t u g e b l e e , gh of the Public Works Minimum Wage Act." n d d i = = o h SECTION 2.

SectionIf 13-4-13the NMSAdirector 1978determines (beingthat Lawsthere 1965,has lbeen ]an bunderpayment ,dof iwages or fringe benefits or a ºviolation rof Chapterthe 35,Public SectionWorks 3,Minimum Wage Act, the director shall, in the absence of a voluntary resolution by the parties and within thirty days of making that determination, order the withholding of accrued payments as amended)provided isin amendedSubsection toC read:of this section.

eI. r = t e w d m a n o "13-4-13.

FAILUREThe TOdirector PAYshall MINIMUMissue WAGE--TERMINATIONrules OFnecessary dto madminister :and accomplish the purposes of the Public Works Minimum Wage Act." SECTION 2.

bSection r13-4-13 eNMSA t1978 º(being oLaws t1965, nChapter =35, .216399.1AICSection February3, 8,as 2020amended) (2:28pm) s k m e - 6 - e a n e d r e l u [ A d CONTRACT.--Every contract within the scope of the Public Works Minimum Wage Act shall contain further provision that in the event it is [foundamended ] determined by the director that any laborer or mechanic employed on the site of the project has been or is being paid [as a result of a willful violation ] a wage rate or fringe benefit rate less than the rates required SPACº , and in the absence of a voluntary resolution by the parties»SPAC, the contracting agency [may] shall, within thirty days of the director's determination, by written notice to theread: contractor, subcontractor, employer or person acting as a contractor, terminate the right to proceed with the work or the part of the work as to which there has been a [willful ] failure to pay the required wages or fringe benefits, and the contracting agency [may ] shall prosecute the work to completion by contract or otherwise, and the contractor or person acting as a contractor and the contractor's or person's sureties shall be liable to h the state for any excess costs occasioned thereby.

Any"13-4-13. party g o t hr receiving notice of termination of a project or subcontract g e i k pursuant to the provisions of this section may appeal the h r i s finding of the director as provided in the Public Works Minimum h , t, Wage Act." e u g e b l e e h SECTION 3.

SectionFAILURE 13-4-14TO NMSAPAY 1978MINIMUM (beingWAGE--TERMINATION LawsOF 1965,CONTRACT.--Every ncontract dwithin dthe iscope =of =the oPublic hWorks ChapterMinimum 35,Wage SectionAct 4,shall ascontain amended)further provision that in the event it is amendeddetermined by the director that any laborer or mechanic employed on the site of the project has been or is being paid a wage rate or fringe benefit rate less than the rates required, and in the absence of a voluntary resolution by the parties, the contracting agency shall, within thirty days of the director's determination, by written notice to read:the contractor, subcontractor, employer or SJC/SB 98 Page 6 person acting as a contractor, terminate the right to proceed with the work or the part of the work as to which there has been a failure to pay the required wages or fringe benefits, and the contracting agency shall prosecute the work to completion by contract or otherwise, and the contractor or person acting as a contractor and the contractor's or person's sureties shall be liable to the state for any excess costs occasioned thereby.