HB 0716

This bill establishes minimum wage determinations for the construction of public works.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Chapter; Minimum Wages of Employees in Public Works. Amend RSA by inserting after chapter 280 the following new chapter:

280-A:1 Regulation By Labor Commissioner of Contracts. The advertised specifications for every contract for the construction of public works by the state of New Hampshire, or by a county, municipality, or district established by law which requires or involves the employment of mechanics, teamsters, chauffeurs, and laborers shall contain a provision stating the minimum wages to be paid various classes of said employees which shall be based upon wages that will be determined by the labor commissioner to be prevailing for the corresponding classes of mechanics, teamsters, chauffeurs, and laborers employed on projects of a character similar to the contract work in the city, town, village, or other civil subdivision in which the work is to be performed and every contract based upon these specifications shall contain a stipulation that the contractor or subcontractor shall pay hourly wages which are no less than the various rates so established during the life of the contract. This section shall also apply to regular employees of the state when such employees are employed in the construction, addition to, or alteration of said works for which special appropriations are provided. Payments by employers to health, welfare, pension, and/or other plans under collective bargaining agreements or understandings between organized labor and employers shall be included for the purpose of establishing prevailing wage rates as herein prescribed.

280-A:2 Determination of Wages. The commissioner shall prepare, for the use of such public officials or public bodies whose duty it shall be to cause public works to be constructed, a list of the several classifications usually used on various types of public works upon which mechanics, teamsters, chauffeurs, and laborers are employed. The commissioner may revise such classifications from time to time. At least 10 days before asking for bids the authorized officials or agency prescribing specifications shall request the labor commissioner to determine the minimum wage rates as provided in RSA 280-A:1. The labor commissioner shall immediately determine the minimum wage rates to be paid in said area, and shall so notify any organization of employees or employers who shall have previously requested that such determined rates shall be furnished them. The labor commissioner shall also immediately furnish the determined minimum wage rates to any mayor, manager, or chairman of selectmen, in the area where such public works is to be constructed. In advertising or calling for bids for said works, when the awarding official, or pubic body, incorporates said schedule in the advertisement or call for bids by an appropriate reference thereto, the official or pubic body shall also furnish a copy of said schedule, without cost, to any person requesting the same. Any person engaged in the construction of said works shall cause a legible copy of said schedule to be kept posted in a conspicuous place at the site of said works during the life of the contract. The aforesaid rates of wages in the schedule of wage rates shall include payments by employers to health, welfare, pension, or other plans as provided in RSA 280-A:1, and such payments shall be considered as payments to persons under this section performing work as herein provided. An employer who provides payment of comparable benefits to its employees, other than as defined in RSA 280-A:1, may be given credit for same against determined wage rates by application to and authorization of the labor commissioner. Any employer engaged in the construction of such works who does not make payments to health, welfare, pension, or other plans, or other comparable benefits recognized by the commissioner, where such payments are included in said determined rates of wages, shall pay the amounts of said payments directly to each employee in said construction.

280-A:3 Notice of Right To Appeal From Determination. At the same time the commissioner notifies any organization of employees or employers and the mayor, manager, or chairman of selectmen of the minimum wage rate, as provided in RSA 280-A:2, the commissioner shall notify them of the provisions of RSA 280-A:4 relative to an appeal from the determination of the wage rate.

280-A:4 Appeal. Within 15 days after such wage rates shall be determined in accordance with the provisions of RSA 280-A:1 and RSA 280-A:2, such rates may be appealed by an association of employees or employers, any 2 citizens of the state, or any public awarding agency, such appeal to be heard before a board of 5, constituted as follows: the governor and council shall appoint 4 members who are knowledgeable in matters concerning the construction industry for a term of 2 years each. Organized employers and organized employees in the construction industry shall be represented on said board by one member each. The fifth member of said board shall be appointed by the first 4 members, and in case all 4 cannot all agree on the fifth member within 30 days after their own appointment, said fifth member shall be appointed by the governor and council. The 5 members of the appeal tribunal shall be paid a fee of $20 per day for each day of actual attendance of called meetings of the appeal tribunal and shall also be reimbursed for necessary travel and other necessary expenses. If while an appeal is pending any member of the appeal board, by reason of illness, absence from the state or otherwise, is unable to perform his or her duties, the governor shall appoint a person to act in his or her stead with respect to that appeal then pending. Upon the filing of an appeal hereunder, the appeal board shall fix a time and place for a public hearing thereon to be held not later than 7 days after filing of the appeal, Saturdays, Sundays, and holidays excepted; and the labor commissioner shall give written notice thereof to any public awarding agencies concerned, and to all interested associations and organizations of employers and employees in the construction industry deemed by the commissioner to be affected by the appeal. Within 48 hours after adjournment of the hearing, the board shall submit its decision in writing to the labor commissioner who shall forward copies thereof to all parties deemed by the commissioner to be interested in the appeal and affected thereby.

280-A:5 Records and Adjustments. Every contractor, subcontractor, or public body engaged in said public works to which the preceding sections apply, shall keep true and accurate registers of all mechanics, teamsters, chauffeurs, and laborers employed thereon, showing the name, address, and occupation classification of each employee on said works, and the hours worked by, and the wages paid to each such employee, and shall furnish to the commissioner, upon request, a true statement of the same. Such records shall be kept in such manner as the commissioner shall prescribe, and shall be open to inspection by any authorized representative of the department of labor at any reasonable time and as often as may be necessary. The commissioner is hereby authorized to make necessary adjustments, after checking such records, to bring the wages of the employees to the minimums established by the commissioner under RSA 280-A:2. Whoever shall willfully pay less than said rates of wages to an employee on said works shall forfeit to the commissioner a sum equal to twice the difference between the determined rates and the wages actually paid to said employees, said sum to be recovered by the commissioner in an action of contract for the benefit of the employee.

280-A:6 Anti-Kickbacks and Penalties. Whoever, for himself or herself, or as representative, agent, or officer of another, shall withhold, take, or receive for his or her own use or the use of any other person, as a rebate, refund, or gratuity, or in any other guise, any part or portion of the wages paid to any employee for work done or services rendered on said public works; and whoever, either by himself or herself or as an agent, superintendent, or foreman for another, violates any provision of the preceding sections, shall be guilty of a misdemeanor if a natural person or guilty of a felony if any other person. Whoever shall have been convicted of a second violation of any of said provisions shall be prohibited from contracting directly or indirectly, with the state, municipalities, or a district established by law, for the construction of any public works, or from performing any work on the same as contractor, or subcontractor for a period of 2 years from the date of said conviction.

280-A:7 Applicability of Chapter. When applicable, the provisions of this chapter and wage determinations hereunder shall apply only to the same extent and in the same manner as the Davis-Bacon Act, 40 U. S. C. sec 276a et seq., as it presently exists or is later amended or otherwise affected by executive order.

The Departments of Labor, Transportation, and Employment Security are unable to determine the fiscal impact of this bill on state, county and local expenditures in FY 2002 and each year thereafter. There will be no fiscal impact on state, county and local revenue.

The Department of Labor states it is not possible for the Department to calculate the fiscal impact of this bill, as they do not have basic information on the number of projects that would be involved or their scope. At a minimum, the Department would have to expend funds to hire staff for the purpose of gathering the information on the wage rates for the covered classes and keeping the data current.

The Department of Transportation states the Department has no way to determine the fiscal impact of this bill on Public Works contracts. The Department does not track salaries paid under their current contracts that do not have federal funds. There is no way to determine what salaries would be established by the Labor Department.

The Department of Employment Security is unable to determine the fiscal impact of this bill without extensive study.