AN
ACT Relating to prevailing wage civil penalties; and amending RCW 39.12.050,
39.12.065, and 39.12.080.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
39.12.050 and 1985 c 15 s 3 are each amended to read as follows:
(1)
Any contractor or subcontractor who files a false statement or fails to file
any statement or record required to be filed under this chapter and the rules
adopted under this chapter, shall, after a determination to that effect has
been issued by the director after hearing under chapter 34.05 RCW, forfeit as a
civil penalty the sum of five hundred dollars for each false filing or failure
to file, and shall not be permitted to bid, or have a bid considered, on any
public works contract until the penalty has been paid in full to the director.
The civil penalty under this subsection shall not apply to a violation
determined by the director to be an inadvertent filing or reporting error. Civil
penalties shall be deposited in the public works administration account.
To
the extent that a contractor or subcontractor has not paid wages at the rate
due pursuant to RCW 39.12.020, and a finding to that effect has been made as
provided by this subsection, such unpaid wages shall constitute a lien against
the bonds and retainage as provided in RCW 18.27.040, ((19.28.120)) 19.28.041,
39.08.010, and 60.28.010.
(2)
If a contractor or subcontractor is found to have violated the provisions of
subsection (1) of this section for a second time within a five year period, the
contractor or subcontractor shall be subject to the sanctions prescribed in
subsection (1) of this section and shall not be allowed to bid on any public
works contract for one year. The one year period shall run from the date of
notice by the director of the determination of noncompliance. When an appeal
is taken from the director's determination, the one year period shall commence
from the date of the final determination of the appeal.
The
director shall issue his or her findings that a contractor or subcontractor has
violated the provisions of this subsection after a hearing held subject to the
provisions of chapter 34.05 RCW.
Sec.
2. RCW
39.12.065 and 1994 c 88 s 1 are each amended to read as follows:
(1)
Upon complaint by an interested party, the director of labor and industries
shall cause an investigation to be made to determine whether there has been
compliance with this chapter and the rules adopted hereunder, and if the
investigation indicates that a violation may have occurred, a hearing shall be
held in accordance with chapter 34.05 RCW. The director shall issue a written
determination including his or her findings after the hearing. A judicial
appeal from the director's determination may be taken in accordance with
chapter 34.05 RCW, with the prevailing party entitled to recover reasonable
costs and attorneys fees.
A
complaint concerning nonpayment of the prevailing rate of wage shall be filed
with the department of labor and industries no later than thirty days from the
acceptance date of the public works project. The failure to timely file such a
complaint shall not prohibit a claimant from pursuing a private right of action
against a contractor or subcontractor for unpaid prevailing wages. The remedy
provided by this section is not exclusive and is concurrent with any other
remedy provided by law.
(2)
To the extent that a contractor or subcontractor has not paid the prevailing
rate of wage under a determination issued as provided in subsection (1) of this
section, the director shall notify the agency awarding the public works
contract of the amount of the violation found, and the awarding agency shall
withhold, or in the case of a bond, the director shall proceed against the bond
in accordance with the applicable statute to recover, such amount from the
following sources in the following order of priority until the total of such
amount is withheld:
(a)
The retainage or bond in lieu of retainage as provided in RCW 60.28.010;
(b)
If the claimant was employed by the contractor or subcontractor on the public
works project, the bond filed by the contractor or subcontractor with the
department of labor and industries as provided in RCW 18.27.040 and ((19.28.120))
19.28.041;
(c)
A surety bond, or at the contractor's or subcontractor's option an escrow account,
running to the director in the amount of the violation found; and
(d)
That portion of the progress payments which is properly allocable to the
contractor or subcontractor who is found to be in violation of this chapter.
Under no circumstances shall any portion of the progress payments be withheld
that are properly allocable to a contractor, subcontractor, or supplier, that
is not found to be in violation of this chapter.
The
amount withheld shall be released to the director to distribute in accordance
with the director's determination.
(3)
A contractor or subcontractor that is found, in accordance with subsection (1)
of this section, to have violated the requirement to pay the prevailing rate of
wage shall be subject to a civil penalty of not less than one thousand dollars
or an amount equal to twenty percent of the total prevailing wage violation
found on the contract, whichever is greater, and shall not be permitted to bid,
or have a bid considered, on any public works contract until such civil penalty
has been paid in full to the director. If a contractor or subcontractor is
found to have participated in a violation of the requirement to pay the
prevailing rate of wage for a second time within a five-year period, the
contractor or subcontractor shall be subject to the sanctions prescribed in
this subsection and as an additional sanction shall not be allowed to bid on
any public works contract for two years. Civil penalties shall be deposited
in the public works administration account. If a previous or subsequent
violation of a requirement to pay a prevailing rate of wage under federal or
other state law is found against the contractor or subcontractor within five
years from a violation under this section, the contractor or subcontractor
shall not be allowed to bid on any public works contract for two years. A
contractor or subcontractor shall not be barred from bidding on any public
works contract if the contractor or subcontractor relied upon written
information from the department to pay a prevailing rate of wage that is later
determined to be in violation of this chapter. The civil penalty and sanctions
under this subsection shall not apply to a violation determined by the director
to be an inadvertent filing or reporting error. To the extent that a
contractor or subcontractor has not paid the prevailing wage rate under a
determination issued as provided in subsection (1) of this section, the unpaid
wages shall constitute a lien against the bonds and retainage as provided
herein and in RCW 18.27.040, ((19.28.120)) 19.28.041, 39.08.010,
and 60.28.010.
Sec.
3. RCW
39.12.080 and 1993 c 404 s 2 are each amended to read as follows:
The
public works administration account is created in the state treasury. The
department of labor and industries shall deposit in the account all moneys
received from fees or civil penalties collected under RCW 39.12.050,
39.12.065, and 39.12.070. Appropriations from the account, not including
moneys transferred to the general fund pursuant to RCW 39.12.070, may be made
only for the purposes of administration of this chapter, including, but not
limited to, the performance of adequate wage surveys, and for the investigation
and enforcement of all alleged violations of this chapter as provided for in
this chapter and chapters 49.48 and 49.52 RCW.
