New Laws Affecting Contractors

Transcription

1 New Laws Affecting Contractors Changes for 2018 Presenters Lisa V. Ryan Partner Cook Brown LLP. Lisa s prior work as a consultant on labor and employment issues for the California Legislature gives her a unique insight into the law. In 2017, Lisa presented at the Continuing Education of California Bar s Employment Law Practice 2016 Year in Review, an annual forum where lawyers analyze and discuss key employment law developments and cases. Richard Markuson WECA Lobbyist Pacific Advocacy Group. Richard was a committee consultant for the State Legislature before founding PAG 10 years ago to represent merit shop contractors. 1

2 Todays agenda New Laws Affecting Contractors Two year bills New Laws Affecting Contractors Labor Law Skilled and Trained Workforce Public Works Private Works Design Build Contractor Law PLAs 2

3 Labor Law Changes Summary of significant changes new restrictions on the ability of employers to examine the work history of applicants, new restrictions on employers compliance with federal law enforcement and new mandatory leave requirements. AB 168 Salary History AB 450 Immigrant Workers AB 1008 Criminal history SB 63 Parental leave AB 168 (Eggman D) Salary History Prohibits all employers from seeking salary history information about an applicant for employment and requires an employer to provide the pay scale for a position to an applicant upon request. Employers should revisit their recruitment processes, including applications, and retrain hiring personnel, to prepare for compliance. Employers also should bear in mind that, even where consideration of salary history is permissible, prior salary cannot, by itself, justify a disparity in compensation between workers of the opposite sex who are performing substantially similar work. 3

4 AB 450 (Chiu D) Immigrant Workers Prohibits an employer from providing access to a federal government immigration enforcement agent to any non public areas of a place of labor if the agent does not have a warrant or granting voluntary consent to an immigration enforcement agent to access, review, or obtain the employer s employee records without a subpoena or judicial warrant Requires employer to Post a notice at the worksite in the language the employer normally uses to communicate employment related information to employees, within 72 hours of receiving an NOI Prohibits an employer from re verifying the employment eligibility of a current employee at a time or in a manner not required by federal law AB 1008 (McCarty D) Criminal history Prohibits an employer with 5 or more employees from inquiring about or considering a job applicant's conviction history prior to a conditional offer of employment, and sets requirements regarding the consideration of conviction histories in employment decisions. Once a conditional offer of employment offer has been made, and the criminal history obtained, AB 1008 provides that the employer cannot deny an applicant a position solely or in part because of conviction history until the employer performs an individualized assessment which must justify denying the applicant the position by linking relevant conviction history with specific job duties of the position sought. The assessment would have to consider: The nature and gravity of the offense and conduct; The time that has passed since the offense or conduct and completion of the sentence; and The nature of the job held or sought. AB 1008 provides that the employer may, but is not required to, commit the results of this individualized assessment to writing. 4

5 SB 63 (Jackson D) Parental leave Requires employers of 20 or more within 75 miles, to grant an employee up to 12 weeks of job protected leave to bond with a new child within 1 year of the child s birth, adoption or foster care placement. The employer must maintain and pay for the employee s group health coverage during the duration of the leave. This is in addition to the Paid Family Leave (PFL) program and Pregnancy Disability Leave (PDL). Employer may recover health care costs if employee does not return Skilled and Trained Workforce Summary New mandates to use Skilled and Trained Workforce, changes to the graduation requirements, new penalty for failure to comply. AB 55 Hazardous materials management: stationary sources AB 73 Housing sustainability districts AB 591 County boards of education AB 805 County of San Diego: transportation agencies AB 1424 University of California: Best Value Construction Contracting Program SB 418 Skilled and Trained Workforce 5

6 AB 55 (Thurmond D) Hazardous materials management: stationary sources Requires refineries who claim an exemption to skilled and trained workforce requirements, to file with the administering agency a complete copy of the contract and a second copy of the contract that has been redacted only to the extent necessary to protect sensitive information and that includes the identity of the contractor, the scope of the work covered by the contracts, the date of execution of the contract, and the term of the contract. Also requires the redacted copy to be a public record Require a worker to have completed, within the prior 3 calendar years, at least 20 hours of this approved advanced safety training to qualify as a skilled journeyperson for purposes of performing covered work on or after July 1, 2018 AB 73 (Chiu D) Housing sustainability districts Allows a city or county to create a housing sustainability district to complete upfront zoning and environmental review in order to receive incentive payments for development projects that are consistent with the district's ordinance. Creates new requirements based upon the location and size of project. Exempts very small projects Creates a $10,000 per month penalty for failure to report workforce and $200 per day for failure to employ skilled workers (does not apply if PLA in place). 6

7 AB 591 (O'Donnell D) County boards of education Clarifies existing law, that county boards of education using leaseleaseback and lease to own contracting methods must comply with all of the requirements currently placed on school districts using these methods, including competitive selections, bidder prequalification, and ensuring the entity and its subcontractors have a skilled and trained workforce AB 805 (Gonzalez Fletcher D) County of San Diego: transportation agencies Prohibit the Metropolitan Transit System (MTS), San Diego Association of Governments (SANDAG), and North County Transit District (NCTD) Board from entering into a construction contract over $1 million, with any entity, unless the entity provides to the Board an enforceable commitment that the entity and its subcontractors at every tier will use a skilled and trained workforce to perform all work on the project or contract that falls within an apprenticeship occupation in the building and construction trades. Provides that this prohibition does not apply if there is a PLA. 7

8 AB 1424 (Levine D) University of California: Best Value Construction Contracting Program Makes permanent the authority for the University of California (UC) to use best value contracting for construction projects; and, when using best value contracting, requires contractors and all subcontractors to conform with the skilled and trained workforce requirements applicable to alternative construction delivery methods authorized in statute for use by other state or local government entities Exempts projects pursuant to a PLA SB 418 (Hernandez D) Skilled and Trained Workforce Revises the existing definition of skilled and trained workforce to specify that on or after January 1, 2018, the 40, 50 and 60 percentage graduation rate of skilled journeypersons required for work in specified contracts shall not apply to work performed in the following occupations: acoustical installer, bricklayer, carpenter, cement mason, drywall installer or lather, marble mason, finisher, or setter, modular furniture or systems installer, operating engineer, pile driver, plasterer, roofer or waterproofer, stone mason, surveyor, teamster, terrazzo worker or finisher, and tile layer, setter, or finisher. 8

9 Public Works Summary new reporting mandate for products used in state construction; new posting requirement for progress payments; expansion of PW coverage. AB 262 Buy Clean California Act AB 1223 Contractor Payments AB 1066 Public works: definition AB 262 (Bonta D) Buy Clean California Act Requires the Department of General Services (DGS) to establish standards used in the bid process related to greenhouse gas (GHG) emissions when certain eligible materials are used in state public works projects. Eligible materials subject to requirements in this bill restricted to carbon steel rebar, flat glass, mineral wool board insulation, and structural steel. 9

10 AB 1223 (Caballero D) Contractor Payments Requires state agencies that maintain an Internet Web site to post information about construction contract payments valued at $25,000 or more on their Internet Web sites within 10 days of making the payment. Does not apply to local agencies AB 1066 (Aguiar Curry D) Public works definition Expands the coverage of prevailing wage to include specific types of tree removal work. Clarifies that successor agencies to redevelopment agencies are subject to prevailing wage requirements. 10

11 Private Works AB 1701 (Thurmond D) Contractor liability for Wages & Benefits Holds general contractors and subcontractors jointly liable for unpaid wages, including fringe benefits. Bill does not require a worker or third party to exhaust his or her options before moving on to the general contractor, nor does this measure require the worker or third party to secure a judgment against the subcontractor in order to pursue a joint liability action. DLSE is authorized to bring an action to enforce this liability. A third party owed fringe or other benefits, or a joint labor management cooperation committee is authorized to bring a civil action to enforce the liability against a direct contractor. It requires a subcontractor, upon request from the direct contractor, to provide information regarding the subcontractor s and third party s work on the project and provides that the direct contractor can withhold disputed sums upon the subcontractor s failure to provide the requested information. Design/Build AB 851 Local agency contracts AB 994 Health Care Districts AB 1523 San Bernardino County Transportation Authority SB 622 Golden Gate Bridge, Highway and Transportation District SB 793 Design build and best value construction contracting 11

12 AB 851 (Caballero D) Local agency contracts Extends the sunset date on the authority of counties to use CMaR contracting, extends CMaR contracting authority to the City of San Diego for specified projects, and allows the Santa Clara Valley Water District to use the design build procurement method for specified types of projects Requires the use a skilled and trained workforce unless a PLA AB 994 (Muratsuchi D) Health Care Districts Allows the Beach Cities Health District (BCHD) to use design build contracting for construction of buildings. 12

13 AB 1523 (Obernolte R) San Bernardino County Transportation Authority Authorize the SBCTA to use the design build contracting process for local agencies to award a contract for the construction of the Mt. Vernon Avenue Viaduct project in the City of San Bernardino. SB 622 (Wiener D) Golden Gate Bridge, Highway and Transportation District Makes various changes to the bidding threshold requirements for the Golden Gate Bridge, Highway, and Transportation District and; Permits the District to use informal bidding for contracts for vessel repair, maintenance, and alteration that does not exceed $1 million. NO PLA or Skilled and Trained Workforce mandate 13

14 SB 793 (Hill D) Design build and best value construction contracting Allows specified special districts to use design build contracting for construction of buildings or other facilities in those districts, and expands a pilot program that allows seven counties to use best value contracting for specified projects until January 1, Contractor Law AB 1278 Judgment debtor prohibition SB 486 CSLB Letter of Admonishment AB 1070 Solar Energy Contracts 14

15 AB 1278 (Low D) Judgment debtor prohibition Clarifies that, if a judgment is entered against a licensed contractor, the licensee's qualifying person or personnel of record at the time of the activities on which the judgment is based is prohibited from serving on another license as a qualifying individual or other personnel of record, rather than just the licensee's qualifying person or personnel of record at the time the judgement is entered and makes other clarifying changes. SB 486 (Monning D) CSLB Letter of Admonishment Authorizes the Contractors State License Board (CSLB) to issue letters of admonishment to an applicant, licensee, or registrant rather than issuing a citation, and it sets specific conditions for issuing letters. 15

16 AB 1070 (Gonzalez Fletcher D) Solar Energy Contracts Requires the CSLB in collaboration with the Public Utilities Commission to develop and make available a"solar energy system disclosure document" for solar energy customers which shall be printed in boldface 16 point type and include the following types of primary information: The total cost and payments for the system, including financing costs. Information on how and to whom customers may provide complaints. The consumer s right to a cooling off period of three days pursuant to Section 7159 of the Business and Professions Code. PLAs AB 618 (Low D) Job order contracting: community college districts Authorizes job order contracting for community college districts until January 1, Restricts job order contracting to school community college that have entered into project labor agreement(s) (PLA) that will apply to all public works undertaken by the school regardless of what contracting procedure is used to award that work. 16

17 2 year bills AB 5 (Gonzalez Fletcher D) Opportunity to Work Act Creates the Opportunity to Work Act, which requires an employer with 10 or more employees to offer additional hours of work to an existing nonexempt employee before hiring an additional employee or subcontractor Location: Assembly Appropriations 17