Report Title:

Prevailing Wages; Applicability; Public Work Projects; Civil Actions

Description:

Provides for the manner in which the prevailing wages for laborers and mechanics on public work projects are to be established. Allows individuals to bring suit against violators for noncompliance and the Director of Labor and Industrial Relations for failure to perform nondiscretionary duties. Expands the definition of public works to include certain private construction contracts. (HB1214 HD2)

HOUSE OF REPRESENTATIVES

H.B. NO.

1214

TWENTY-THIRD LEGISLATURE, 2005

H.D. 2

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to prevailing wages.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Section 104-2, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

"(a) This chapter shall apply to every contract in excess of $2,000 for construction of a public work project [to which] undertaken by authority of a governmental contracting agency [is a party]; provided that this chapter shall not apply to experimental and demonstration housing developed pursuant to section 46-15 or housing developed pursuant to chapter 201G if the cost of the project is less than $500,000 and the eligible bidder or eligible developer is a private nonprofit corporation.

For the purposes of this subsection:

"Contract" includes but is not limited to any agreement, purchase order, or voucher in excess of $2,000 for construction of a public work project.

"Governmental contracting agency" includes any person or entity that causes either directly or indirectly the building or development of a public work.

"Party" includes eligible bidders for and eligible developers of any public work and any housing under chapter 201G; provided that this subsection shall not apply to any housing developed under section 46-15 or chapter 201G if the entire cost of the project is less than $500,000 and the eligible bidder or eligible developer is a private nonprofit corporation.

"Public work" means any project, including development of any housing pursuant to section 46-15 or chapter 201G, and development, construction, renovation, and maintenance related to refurbishment of any real or personal property, where the funds or resources required to undertake the project are to any extent derived either directly or indirectly from public revenues of the State or any county, or from the sale of securities or bonds whose interest or dividends are exempt from state or federal taxes[.], including a project that is subsidized through the receipt of a state tax credit or a project that is undertaken through the use of state or county land.

"Public work" also means a construction contract between private persons if:

(1) More than twenty-five per cent of the assignable square feet of the property is leased for use by the State, any county, or any agency of the State or county, whether or not the property is privately owned; and

(2) The lease agreement is entered into prior to the construction contract becoming effective; or

(3) Construction work is performed according to plans, specifications, or criteria established by the State, any county, or any agency of the State or county.

(b) Every laborer and mechanic performing work on the job site for the construction of any public work project shall be paid no less than prevailing wages; provided that:

(1) The prevailing wages shall be [not less than the wages that the director of labor and industrial relations, under the rules, shall have determined to be the prevailing wages for corresponding classes of laborers and mechanics on projects of similar character in the State;] established by the director of labor and industrial relations as the sum of the basic hourly rate and the cost to an employer of providing a laborer or mechanic with fringe benefits. In making prevailing wage determinations, the following shall apply:

(A) The director shall make separate findings of:

(i) The basic hourly rate; and

(ii) The rate of contribution or cost of fringe benefits paid by the employer when the payment of the fringe benefits by the employer constitutes a prevailing practice. The cost of fringe benefits shall be reflected in the wage rate scheduled as an hourly rate;

and

(B) The rates of wages that the director shall regard as prevailing in each corresponding classification of laborers and mechanics shall be the rate of wages paid to the greatest number of those employed in the state in corresponding classes of laborers or mechanics on projects that are similar to the contract work;

(2) The prevailing wages shall be not less than the wages payable under federal law to corresponding classes of laborers and mechanics employed on public works in the [State] state that are prosecuted under contract or agreement with the government of the United States; and

(3) Notwithstanding the provisions of the original contract, the prevailing wages shall be periodically adjusted during the performance of the contract in an amount equal to the change in the prevailing wage as periodically determined by the director."

SECTION 2. Section 104-28, Hawaii Revised Statutes, is amended to read as follows:

"§104-28 Civil action. (a) Action to recover unpaid wages or overtime compensation may be maintained in any court of competent jurisdiction by any one or more laborers or mechanics for and on behalf of oneself or themselves and others similarly situated.

(b) The court, in its action and in addition to any judgment awarded to the plaintiff or plaintiffs, shall allow reasonable attorney's fee and costs of the action to be paid by the defendant.

(c) It shall be no defense that the laborers and mechanics accepted or agreed to accept less than the required rate of wages or overtime compensation or voluntarily made refunds.

(d) When a written request is filed by any laborer or mechanic with the director claiming unpaid wages or overtime compensation under this chapter, the director, after receiving an assignment from the laborer or mechanic, may bring an action in any court of competent jurisdiction to recover the amount of the claim. The consent of any laborer or mechanic to the bringing of such action by the director, unless the action is dismissed without prejudice on motion of the director, shall constitute a waiver by the laborer or mechanic of any right of action the laborer or mechanic may have under subsection (a). Any amount recovered by the director before suit and accepted by the laborer or mechanic as payment in full shall constitute a waiver of any rights under this chapter.

(e) Any laborer or mechanic may commence a civil action on the laborer's or mechanic's own behalf:

(1) Against any person who is alleged to be in violation of any permit, rule, requirement, prohibition, or order that has become effective pursuant to this chapter; or

(2) Against the director where there is alleged a failure of the director to perform any act or duty under this chapter that is not discretionary with the director.

(f) No action may be commenced under subsection (e)(1):

(1) Prior to sixty days after the plaintiff has given notice of the violation to:

(A) The director; and

(B) To any alleged violator of such permit, rule, requirement, prohibition, or order;

or

(2) If the State has commenced and is diligently prosecuting a civil or criminal action in court to require compliance with such permit, rule, requirement, prohibition, or order.

(g) No action may be commenced under subsection (e)(2) prior to sixty days after the plaintiff has given notice to the director that the plaintiff will commence such action. Notice in this subsection shall be given in such manner as the director shall prescribe by rule."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect on July 1, 2010.