Prevailing Wage Workshop. Chapter RCW WASBO. February 22, 2012

Transcription

1 Prevailing Wage Workshop Chapter RCW WASBO February 22, 2012

2 What is the prevailing wage? Hourly rate of wage, usual benefits & overtime Trade and Occupation locality RCW (pg )

3 Who gets Prevailing Wages? laborers, workers, or mechanics

4 Prevailing Wage What s Covered? Public work: All work, construction, alteration, repair, or improvement Maintenance performed by contract. NOTE: For prevailing wages, case law limits ordinary maintenance to only the work by the regular employees of the public agency. RCW [pgs ] Building Service Maintenance RCW [pgs Construction, reconstruction, maintenance or repair RCW [pg. 25] Demolition WAC (7) Off-Site Fabrication of Non-Standard Items Turn-Key (lease, rental, or purchase) - RCW [pg. 22]

5 Public Work - Apprentices For some trades, apprenticeship wages have been prevailed. Use of these rates are limited by rule. The apprentice must be a state registered apprentice. The employer must be an approved training agent. All other workers are journey-level for purposes of prevailing wages. RCW [page 25] WAC [Page 45]

6 The Executive Vice President of Terrestrial Excavation It s not the title It s what they do The type and nature of the work The scope of work descriptions WAC to Laborer Power Equipment Operator

7 L&I Responsibilities Under the Prevailing Wage on Public Works Act, Chapter RCW Establish prevailing wage rates. RCW [page 24] Determine classifications of labor (scope of work descriptions). Chapter WAC. Process and certify Intent & Affidavit forms. RCW [pages 26-27] Investigate all valid complaints alleging violations of the Public Works Act. RCW [pages 28-29] Receive and distribute Certified Payroll records. WAC [page 56]

8 Contract Awarding Agency Responsibilities pg. 1/2 Award contracts only to properly registered or licensed contractors. RCW (contractor registration) and RCW (electrical contractor licensing) Do not award contracts to contractors not allowed to perform public work. View the debarred contractor list on-line from the awarding agency link under prevailing wage. RCW ; RCW ; RCW (1); RCW ; Chapter RCW Obtain an approved Statement of Intent to Pay Prevailing Wages form from each and every contractor and subcontractor at all tiers of subcontracting prior to any payment for work by that contractor. RCW [Pages 26-27] Obtain an approved Affidavit of Wages Paid form from each and every contractor and subcontractor at all tiers of subcontracting prior to release of retainage held under RCW RCW [Pages 26-27]

9 Contract Awarding Agency Responsibilities pg. 2/2 Failure to obtain Intents & Affidavits from each and every contractor and subcontractor makes the awarding agency liable to all workers, laborers or mechanics for the full amount of wages due. RCW [Page 27] When awarding a contract, the public agency must make the determination as to whether that contract involves public work and communicate it to the employers in the bid specifications and contracts. RCW [Page 25] Contract specifications must contain a provision stating the prevailing wage rates and requirements and state if residential rates may be used. There is a potential liability if residential rates are improperly allowed! RCW [See update on-line!] WAC (5) [pages 37-38]

10 Public Works Projects Prevailing Wage Requirements Prevailing Wage: Does not apply to people regularly employed by the Public Contract Awarding Agency (AA). There is no threshold (minimum contract amount) for prevailing wages. All contracts for work, construction, alteration, repair, improvement, and maintenance are subject to prevailing wage requirements. The prevailing wage rate in effect on the bid due date are the rates that apply to that contract. Except: Use the contract award date is the award was not within six months of the bid date (WAC ). Annual updates are required for building service maintenance (janitorial) contracts (WAC ). It is the AA s responsibility to ensure the contractor and all subcontractors have filed Statements of Intent to Pay Prevailing Wage prior to making payment on the contract.

11 On Call Contracts Controversy Intents and Affidavits RCW Intent for each contract Affidavit for each project More to follow? Legislation? Rulemaking?

12 Off-Site Work Segmented Concrete Tunnel Liners Everett Concrete Products v. L&I, 109 Wn.2d 819 (1986. Off-Site Manufacture or Fabrication of a nonstandard item made specifically for a public work requires prevailing wages. A Standard or Non-Standard checklist was developed by PWAC and published in the Washington State Register

13 Reporting Out-Of-State Off-Site Prefab RCW (EHB 2805, 2010 legislative session) Reporting of out-of-state prefabrication of items made specifically for a public work is required for projects over $1 million that are not WSDOT or local transportation projects. Include the required boilerplate language in your contracts for public work! Contractor reporting is required with the Affidavit on form F

14 More Information: Off-Site Work Locality The definition of "locality" in RCW (2) contains the phrase "wherein the physical work is being performed." The department interprets this phrase to mean the actual work site. For example, if nonstandard items specifically produced for public works projects are prefabricated in a county other than the county wherein the public works project is to be completed, the wage for the offsite prefabrication shall be the applicable prevailing wage for the county in which the actual prefabrication takes place. Workers who deliver such nonstandard items, as well as materials pursuant to the terms of WAC , shall be paid the applicable prevailing wage for the county in which the public works project is located. WAC (3).

15 Who is a Contractor for purposes of Prevailing wages on Public Work? "Contractor" means: (a) The prime contractor, and each and every subcontractor, required to be registered under chapter RCW and/or licensed under chapter RCW, that performs any work on a public works project site, and/or is required to pay industrial insurance premiums as a construction company. (b) Employers engaged in shipbuilding and ship repair, building service maintenance, and any fabricator or manufacturer that produces nonstandard items specifically for a public works project. (c) Employers that contract with contractors or subcontractors for the purpose of the production and/or delivery of materials pursuant to the terms of WAC WAC (5).

16 Combined Intent/Affidavit - Small Works up to $2,500 Combined Intent/Affidavit form This method makes the public contract awarding agency directly liable to workers for unpaid prevailing wages. RCW (2)(d) [pages 26-27] Dividing a project to come under the dollar limit is prohibited RCW (2)(e) [pages 26-27] Signature of contracting agency required Awarding agency must retain copies 3 years Send copies of the forms to L&I within 30 days Form fee waived by L&I policy $500 civil penalty for failure to file

17 Limited Public Works - Projects up to $35,000 that are awarded under RCW (3) Combined Intent/Affidavit form The contract public awarding agency is liable to the workers for unpaid prevailing wages RCW (3) [pages 19-22] Breaking in units or phasing projects to come in under the dollar limit is prohibited RCW (4) [pages 19-22] Signature of contracting agency required Awarding agency must retain a copy for 3 years Awarding agency must forward forms to L&I within 30 days $80 filing fee must accompany each form $500 civil penalty for failure to file

18 Restrictions on use of alternate combined forms The contract awarding agency decides if the alternative process may be used. The contractor must file the form with the public contract awarding agency. The public contract awarding agency must send a copy to L&I within 30 days. Note: NGOs may not use combined forms since they are not subject to the relevant laws that control public agency use of the combined forms and assign liability for wages. Liability to the public agency for unpaid wages is a condition of using an alternate filing process. See RCW (2)(d) and RCW (4). No subcontractors. No subcontractors are allowed in this alternate process. This helps control exposure to possible liabilities. Single payment. Multiple payments require using a separate (regular) Intent before any initial payment and a separate (regular) Affidavit before the final payment is made. See RCW [pages 26-27] No time and materials. Total cost with tax must be within the form s dollar limit. No dividing or phasing of projects. The law prohibits breaking the project into units or phases to avoid the maximum dollar limit. The public agency must approve the combined forms by signature. No payment may be made until the form is approved by the public agency. $500 civil penalty. Failure to file subject to penalty. RCW [page 27]

19 Contract Provision Prevailing Wage Bid and contract specifications may provide the required prevailing wage rate information in a list or in this alternate format: Provide the URL to the Dept of L & I s prevailing wage rates Identify the exact wage publication date to use State the county in which the public works project is located Specify a copy is available for viewing in your office Explain that your agency will mail a hard copy upon request Retain a printed version of the rates as part of your records

20 State and Federal Prevailing Wage Laws Davis-Bacon and Chapter RCW Joint Application: What if both Federal and State prevailing wage requirements apply to the same contract and project? - WAC (pg. 46) Perform to the higher standard to comply with both of the prevailing wage laws.

21 Emergency Work Warranty Work Emergency work has some exception for procurement but the prevailing wage requirements still apply. Warranty work is subject to the original prevailing wage for the contract that created the warranty obligation. The existing Intent is OK but the Affidavit will need to be updated for the new hours of work and any new trades or occupations used.

22 Public Works Projects Contract Close-Out Contract Closeout - Release For projects exceeding $35,000, upon completion, releases are required from the state Department of Revenue, Employment Security Department, and Labor & Industries Industrial Insurance. The purpose of the releases is to ensure that contractors properly pay taxes and premiums. The same release form is submitted to all three agencies. The District should have the following documentation before releasing the retainage: L&I approved prevailing wage Intents & Affidavits for the prime contractor and all the subcontractors. Approved releases from Department of Revenue. Employment Security, and L&I Industrial Insurance.

23 The content of this slide comes from the Auditor s joint presentation with L&I to public contract awarding agencies on procurement and prevailing wages (fall 2011): Recommended internal controls responsibilities Routine or periodic job site inspections to verify compliance Check for posted intent form Randomly interview workers to verify prevailing wages are paid Verify apprentice worker registration cards Keep accurate records of all contractors and subcontractors on a project Verify prevailing wage on contracts are correct Verify scope of work to avoid discrepancies between the wage class information given to the employee and the type of work he or she is actually performing Obtain certified payroll

24 L&I Resources and Contacts L. Ann Selover, Industrial Statistician (360) Laura Herman, Industrial Relations Specialist (360) Ramona Christensen-Russell, Industrial Relations Specialist Reasa Pearson, Industrial Relations Agent (360) Nathan Peppin, Economist (360) Dawn Gast, Secretary Supervisor (360)

25 L&I Release Questions (Industrial Insurance)? or call (360) L&I - Contractor Registration: or, toll-free: BERP235@LNI.WA.GOV or CONTREG@LNI.WA.GOV FEDERAL EMPLOYMENT LAW ISSUE? CONTACT US DEPT. OF LABOR: