BILL REQ. #: H-0819.1
State of Washington | 62nd Legislature | 2011 Regular Session |
Read first time 01/21/11. Referred to Committee on Labor & Workforce Development.
AN ACT Relating to complaints of nonpayment of the prevailing rate of wage; and amending RCW 39.12.065.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 39.12.065 and 2009 c 219 s 4 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)) date that an interested party knew or should have known about
the potential violation of the payment of prevailing wage requirements.
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
60.28.011;
(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 19.28.041;
(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, 19.28.041, 39.08.010, and 60.28.011.