Today's Law As Amended

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SB-362 Employment: apprenticeships.(2011-2012)



SECTION 1.

 Section 1777.7 of the Labor Code is amended to read:

1777.7.
 (a) (1) If the Labor Commissioner or his or her designee determines after an investigation that a contractor or subcontractor A contractor or subcontractor that is determined by the Chief of the Division of Apprenticeship Standards to have  knowingly violated Section 1777.5, the contractor and any subcontractor responsible for the violation shall forfeit, except as provided for in paragraph (2), shall forfeit  as a civil penalty to the state or political subdivision on whose behalf the contract is made or awarded, not more than  an amount not exceeding  one hundred dollars ($100) for each full calendar day of noncompliance. The amount of this penalty may be reduced by the Labor Commissioner  Chief  if the amount of the penalty would be disproportionate to the severity of the violation. A contractor or subcontractor that knowingly commits a second or subsequent violation of Section 1777.5, except as provided for in paragraph (2),  within a three-year period, if where  the noncompliance results in apprenticeship training not being provided as required by this chapter, shall forfeit as a civil penalty the sum of not more than three hundred dollars ($300) for each full calendar day of noncompliance. Notwithstanding Section 1727, upon receipt of a determination that a civil penalty has been imposed by the Chief, the awarding body shall withhold the amount of the civil penalty from contract progress payments then due or to become due. 
(2) Where the violation is for failing to employ an apprentice, in addition to the penalties set forth in paragraph (1), a contractor or subcontractor shall also forfeit as a civil penalty an amount not exceeding the sum determined as follows:
(A) First, calculate the total journeyman hours worked in each craft on the project that could have been performed by an apprentice.
(B) Multiply the hours for each craft by the ratio of apprentice hours required by Section 1777.5.
(C) Deduct the actual number of apprentice hours worked by state-registered apprentices, as defined by Section 3077, of the same craft on the project for that employer.
(D) Multiply the resulting difference by the total hourly wage rate for the final period apprentice in that craft, according to the wage determination applicable to the specified project.
(2) (3)  In lieu of the penalty penalties  provided for in this subdivision, the Labor Commissioner  Chief  may, for a first-time violation and with the concurrence of an apprenticeship program described in subdivision (d) of Section 1777.5,  (d),  order the contractor or subcontractor to provide apprentice employment equivalent to the work hours that would have been provided for apprentices during the period of noncompliance.
(b) The Labor Commissioner shall consider, in setting the amount of a monetary penalty, all of the following circumstances: In the event a contractor or subcontractor is determined by the Chief to have knowingly committed a serious violation of any provision of Section 1777.5, the Chief may also deny to the contractor or subcontractor, and to its responsible officers, the right to bid on or be awarded or perform work as a subcontractor on any public works contract for a period of up to one year for the first violation and for a period of up to three years for a second or subsequent violation. Each period of debarment shall run from the date the determination of noncompliance by the Chief becomes a final order of the Administrator of Apprenticeship. 
(1) Whether the violation was intentional.
(2) Whether the party has committed other violations of Section 1777.5.
(3) Whether, upon notice of the violation, the party took steps to voluntarily remedy the violation.
(4) Whether, and to what extent, the violation resulted in lost training opportunities for apprentices.
(5) Whether, and to what extent, the violation otherwise harmed apprentices or apprenticeship programs.
(c) (1) The Labor Commissioner or his or her designee shall issue a civil wage and penalty assessment, in accordance with the provisions of Section 1741, upon determination of penalties assessed under subdivisions (a) and (b). Review of a civil wage and penalty assessment issued under this subdivision may be requested in accordance with the provisions of Section 1742. The regulations of the Director of Industrial Relations, which govern proceedings  An affected contractor, subcontractor, or responsible officer may obtain a review of the determination of the Chief imposing the debarment or civil penalty by transmitting a written request to the office of the Administrator within 30 days after service of the determination of debarment or civil penalty. A copy of this report shall also be served on the Chief. If the Administrator does not receive a timely request  for review of civil wage and penalty assessments and the withholding of contract payments under Article 1 (commencing with Section 1720) and Article 2 (commencing with Section 1770), shall apply. the determination of debarment or civil penalty made by the Chief, the order shall become the final order of the Administrator. 
(2) Within 20 days of the timely receipt of a request for review, the Chief shall provide the contractor, subcontractor, or responsible officer the opportunity to review any evidence the Chief may offer at the hearing. The Chief shall also promptly disclose any nonprivileged documents obtained after the 20-day time limit at a time set forth for exchange of evidence by the Administrator.
(3) Within 90 days of the timely receipt of a request for review, a hearing shall be commenced before the Administrator or an impartial hearing officer designated by the Administrator and possessing the qualifications of an administrative law judge pursuant to subdivision (b) of Section 11502 of the Government Code. The affected contractor, subcontractor, or responsible officer shall have the burden of providing evidence of compliance with Section 1777.5.
(4) Within 45 days of the conclusion of the hearing, the Administrator shall issue a written decision affirming, modifying, or dismissing the determination of debarment or civil penalty. The decision shall contain a statement of the factual and legal basis for the decision and an order. This decision shall be served on all parties and the awarding body pursuant to Section 1013 of the Code of Civil Procedure by first-class mail at the last known address of the party that the party has filed with the Administrator. Within 15 days of issuance of the decision, the Administrator may reconsider or modify the decision to correct an error, except that a clerical error may be corrected at any time.
(5) An affected contractor, subcontractor, or responsible officer who has timely requested review and obtained a decision under paragraph (4) may obtain review of the decision of the Administrator by filing a petition for a writ of mandate to the appropriate superior court pursuant to Section 1094.5 of the Code of Civil Procedure within 45 days after service of the final decision. If no timely petition for a writ of mandate is filed, the decision shall become the final order of the Administrator. The decision of the Administrator shall be affirmed unless the petitioner shows that the Administrator abused his or her discretion. If the petitioner claims that the findings are not supported by the evidence, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in light of the entire record.
(2) (6)  For purposes of this section, a determination issued pursuant to subdivision (a) or (b) includes a determination that has been approved by the Labor Commissioner and issued by an  The Chief may certify a copy of the final order of the Administrator and file it with the clerk of the superior court in any county in which the affected contractor or subcontractor has property or has or had a place of business. The clerk, immediately upon the filing, shall enter judgment for the state against the person assessed in the amount shown on the certified order. A judgment entered pursuant to this section shall bear the same rate of interest and shall have the same effect as other judgments and be given the same preference allowed by the law on other judgments rendered for claims for taxes. The clerk shall not charge for the service performed by him or her pursuant to this section. An  awarding body that has been authorized to assist the director in the enforcement of Section 1777.5 pursuant to subdivision (p) of that section. The Labor Commissioner may intervene in any proceeding for review of a determination issued by an awarding body. If the involvement of the Labor Commissioner in a labor compliance program enforcement action is limited to a review of the determination and the matter is resolved without litigation by or against the Labor Commissioner or the department, the awarding body shall enforce any applicable penalties, as specified in this section, and shall deposit any penalties and forfeitures collected in the General Fund. withheld funds in response to a determination by the Chief imposing a penalty under this section shall, upon receipt of a certified copy of a final order of the Administrator, promptly transmit the withheld funds, up to the amount of the certified order, to the Administrator. 
(d) The determination of the Labor Commissioner as to the amount of the penalty imposed under subdivisions (a) and (b) shall be reviewable only for an abuse of discretion.
(e) (d)  If a subcontractor is found to have violated Section 1777.5, the prime contractor of the project is not liable for any penalties under subdivision (a) (a),  unless the prime contractor had knowledge of the subcontractor’s failure to comply with the provisions of Section 1777.5 or unless the prime contractor fails to comply with any of the following requirements:
(1) The contract executed between the contractor and the subcontractor for or  the performance of work on the public works project shall include a copy of the provisions of Sections 1771, 1775, 1776, 1777.5, 1813, and 1815.
(2) The contractor shall continually monitor a subcontractor’s use of apprentices required to be employed on the public works project pursuant to subdivision (d) of Section 1777.5, including, but not limited to, periodic review of the certified payroll of the subcontractor.
(3) Upon becoming aware of a failure of the subcontractor to employ the required number of apprentices, the contractor shall take corrective action, including, but not limited to, retaining funds due to  the subcontractor for work performed on the public works project until the failure is corrected.
(4) Prior to making the final payment to the subcontractor for work performed on the public works project, the contractor shall obtain a declaration signed under penalty of perjury from the subcontractor that the subcontractor has employed the required number of apprentices on the public works project.
(e) Any funds withheld by the awarding body pursuant to this section shall be deposited in the General Fund if the awarding body is a state entity, or in the equivalent fund of an awarding body if the awarding body is an entity other than the state.
(f) The Division of Labor Standards Enforcement shall notify the contractor on a public works project within 15 days of the receipt by the division of a complaint that a subcontractor on that public works project knowingly violated Section 1777.5. Chief shall consider, in setting the amount of a monetary penalty, in determining whether a violation is serious, and in determining whether and for how long a party should be debarred for violating this section, all of the following circumstances: 
(1) Whether the violation was intentional.
(2) Whether the party has committed other violations of Section 1777.5.
(3) Whether, upon notice of the violation, the party took steps to voluntarily remedy the violation.
(4) Whether, and to what extent, the violation resulted in lost training opportunities for apprentices.
(5) Whether, and to what extent, the violation otherwise harmed apprentices or apprenticeship programs.
If a party seeks review of a decision by the Chief to impose a monetary penalty or period of debarment, the Administrator shall decide de novo the appropriate penalty, by considering the same factors set forth above.
(g) The interpretation of Section 1777.5 and the substantive requirements of this section applicable to contractors or subcontractors  this section  shall be in accordance with the regulations of the California Apprenticeship Council. The Administrator may adopt regulations to establish guidelines for the imposition of monetary penalties and periods of debarment and may designate precedential decisions under Section 11425.60 of the Government Code. 
(h) The Director of Industrial Relations may adopt regulations to establish guidelines for the imposition of monetary penalties.

SEC. 2.

 Section 3075 of the Labor Code is amended to read:

3075.
 (a)  An apprenticeship program may be administered by a joint apprenticeship committee, unilateral management or labor apprenticeship committee, or an individual employer. Programs may be approved by the chief in any trade in the state or in a city or trade area, whenever the apprentice training needs justify the establishment.  area.  Where a collective bargaining agreement exists, a program shall be jointly sponsored unless either party to the agreement waives its right to representation in writing. Joint apprenticeship committees shall be composed of an equal number of employer and employee representatives.
(b) For purposes of subdivision (a), the apprentice training needs in the building and construction trades and firefighter programs shall be deemed to justify the approval of a new apprenticeship program only if any of the following conditions are met:
(1) There is no existing apprenticeship program approved under this chapter serving the same craft or trade and geographic area.
(2) Existing apprenticeship programs approved under this chapter that serve the same craft or trade and geographic area do not have the capacity, or neglect or refuse, to dispatch sufficient apprentices to qualified employers at a public works site who have requested apprentices and are willing to abide by the applicable apprenticeship standards, as shown by a sustained pattern of unfilled requests.
(3) Existing apprenticeship programs approved under this chapter that serve the same trade and geographic area have been identified by the California Apprenticeship Council as deficient in meeting their obligations under this chapter.
(c) For purposes of subdivision (b), an existing apprenticeship program serves the “same craft or trade” as a proposed apprenticeship program when there would be substantial overlap in the work processes covered by the programs or when graduates of the existing program would be qualified to perform a substantial portion of the work that would be performed by graduates of the new program.
(d) The chief’s decisions regarding applications for new apprenticeship programs in the building and construction trades and firefighters may be appealed by any interested party to the California Apprenticeship Council. For purposes of this section, an application for expansion of an existing program to include an additional occupation shall be considered an application for a “new apprenticeship program.”
(e) The chief’s decisions regarding applications for new apprenticeship programs outside the building and construction trades and firefighters are final and not subject to administrative appeal, except as otherwise provided in this section.
(f) The chief’s decisions regarding applications for new apprenticeship programs shall be posted to the division’s Internet Web site, which shall constitute the only form of notice and service. Appeals to the California Apprenticeship Council under this section must be filed within 30 days after notice of the chief’s decision.
(g) The chief shall not approve a new apprenticeship program that includes a substantial number of work processes covered by a program in the building and construction trades or firefighters, or approve the amendment of apprenticeship standards to include those work processes, unless either of the following applies:
(1) The program is in the building and construction trades or a firefighter program and subject to the rules and regulations of the California Apprenticeship Council.
(2) The California Apprenticeship Council has granted consent to the approval of the program or the amendment to the apprenticeship standards. If no party files an objection with the chief to the approval of the proposed program or amendment alleging overlap of work processes under this subdivision, the chief shall not be required to seek the consent of the California Apprenticeship Council prior to approving the program or amendment.
(h) At least 30 days before approval of a new apprenticeship program, or of an amendment to the apprenticeship standards to include new work processes, the division shall post on its Internet Web site a copy of the proposed apprenticeship standards, which shall constitute the only form of notice and service that an application on the proposed program or amendment is pending. Notwithstanding subdivision (e), the chief’s decision regarding any new apprenticeship program or amendment of the apprenticeship standards to include new work processes may be appealed to the California Apprenticeship Council if notice under this subdivision is not provided.
(i) The division shall create a method on its Internet Web site for members of the public to subscribe to receive email updates when new decisions or proposed apprenticeship standards are posted pursuant to this section.
(j) Only the following programs may dispatch apprentices to projects subject to prevailing wage or skilled and trained workforce requirements:
(1) Programs in the building and construction trades approved before July 1, 2018.
(2) Programs in the building and construction trades approved under the standard in subdivision (b).