71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2025
House Bill 3605
Sponsored by Representative GARDNER (at the request of
International Brotherhood of Electrical Workers)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Makes certain reconstruction or renovation of privately owned
property leased by public agency subject to payment of prevailing
wage rate.
A BILL FOR AN ACT
Relating to prevailing wage rate on public works; creating new
provisions; and amending ORS 279.348, 279.350 and 279.356.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 279.348 is amended to read:
279.348. As used in ORS 279.348 to 279.380, unless the context
requires otherwise:
{ - (1) 'Prevailing rate of wage' means the rate of hourly
wage, including all fringe benefits under subsection (4) of this
section, paid in the locality to the majority of workers employed
on projects of similar character in the same trade or occupation,
as determined by the Commissioner of the Bureau of Labor and
Industries. In making such determinations, the commissioner shall
rely on an independent wage survey to be conducted once each
year. However, if it appears to the commissioner that the data
derived from the survey alone are insufficient to establish the
rate, the commissioner also shall consider additional information
such as collective bargaining agreements, other independent wage
surveys and the prevailing wage rates determined by appropriate
federal agencies or agencies of adjoining states. If there is not
a majority in the same trade or occupation paid at the same rate,
the average rate of hourly wage, including all fringe benefits
under subsection (4) of this section, paid in the locality to
workers in the same trade or occupation shall be the prevailing
rate. If the wage paid by any contractor or subcontractor to
workers on any public work is based on some period of time other
than an hour, the hourly wage shall be mathematically determined
by the number of hours worked in that period of time. - }
{ + (1) 'Fringe benefits' means the amount of:
(a) The rate of contribution irrevocably made by a contractor
or subcontractor to a trustee or to a third person pursuant to a
plan, fund or program; and
(b) The rate of costs to the contractor or subcontractor which
may be reasonably anticipated in providing benefits to workers
pursuant to an enforceable commitment to carry out a financially
responsible plan or program which is committed in writing to the
workers affected, for medical or hospital care, pensions on
retirement or death, compensation for injuries or illness
resulting from occupational activity, or insurance to provide any
of the foregoing, for unemployment benefits, life insurance,
disability and sickness insurance or accident insurance, for
vacation and holiday pay, for defraying costs of apprenticeship
or other similar programs or for other bona fide fringe benefits,
but only where the contractor or subcontractor is not required by
other federal, state or local law to provide any of such
benefits. + }
(2) 'Locality' means the following district in which the public
work, or the major portion thereof, is to be performed:
(a) District 1, composed of Clatsop, Columbia and Tillamook
Counties;
(b) District 2, composed of Clackamas, Multnomah and Washington
Counties;
(c) District 3, composed of Marion, Polk and Yamhill Counties;
(d) District 4, composed of Benton, Lincoln and Linn Counties;
(e) District 5, composed of Lane County;
(f) District 6, composed of Douglas County;
(g) District 7, composed of Coos and Curry Counties;
(h) District 8, composed of Jackson and Josephine Counties;
(i) District 9, composed of Hood River, Sherman and Wasco
Counties;
(j) District 10, composed of Crook, Deschutes and Jefferson
Counties;
(k) District 11, composed of Klamath and Lake Counties;
(L) District 12, composed of Gilliam, Grant, Morrow, Umatilla
and Wheeler Counties;
(m) District 13, composed of Baker, Union and Wallowa Counties;
and
(n) District 14, composed of Harney and Malheur Counties.
{ + (3) 'Prevailing rate of wage' means the rate of hourly
wage, including all fringe benefits under subsection (1) of this
section, paid in the locality to the majority of workers employed
on projects of similar character in the same trade or occupation,
as determined by the Commissioner of the Bureau of Labor and
Industries. In making such determinations, the commissioner shall
rely on an independent wage survey to be conducted once each
year. However, if it appears to the commissioner that the data
derived from the survey alone are insufficient to establish the
rate, the commissioner also shall consider additional information
such as collective bargaining agreements, other independent wage
surveys and the prevailing wage rates determined by appropriate
federal agencies or agencies of adjoining states. If there is not
a majority in the same trade or occupation paid at the same rate,
the average rate of hourly wage, including all fringe benefits
under subsection (1) of this section, paid in the locality to
workers in the same trade or occupation shall be the prevailing
rate. If the wage paid by any contractor or subcontractor to
workers on any public work is based on some period of time other
than an hour, the hourly wage shall be mathematically determined
by the number of hours worked in that period of time.
(4) 'Public agency' means the State of Oregon or any political
subdivision thereof or any county, city, district, authority,
public corporation or entity and any of their instrumentalities
organized and existing under law or charter. + }
{ - (3) - } { + (5) + } 'Public works' includes, but is not
limited to { - , - } { + :
(a) + } Roads, highways, buildings, structures and improvements
of all types, the construction, reconstruction, major renovation
or painting of which is carried on or contracted for by any
public agency to serve the public interest { - but does not
include - } { + ; and
(b) + } The reconstruction or renovation of privately owned
property { - which - } { + that + } is leased by a public
agency { + when the reconstruction or renovation is performed at
the direction of the public agency + }.
{ - (4) 'Fringe benefits' means the amount of: - }
{ - (a) The rate of contribution irrevocably made by a
contractor or subcontractor to a trustee or to a third person
pursuant to a plan, fund or program; and - }
{ - (b) The rate of costs to the contractor or subcontractor
which may be reasonably anticipated in providing benefits to
workers pursuant to an enforceable commitment to carry out a
financially responsible plan or program which is committed in
writing to the workers affected, for medical or hospital care,
pensions on retirement or death, compensation for injuries or
illness resulting from occupational activity, or insurance to
provide any of the foregoing, for unemployment benefits, life
insurance, disability and sickness insurance or accident
insurance, for vacation and holiday pay, for defraying costs of
apprenticeship or other similar programs or for other bona fide
fringe benefits, but only where the contractor or subcontractor
is not required by other federal, state or local law to provide
any of such benefits. - }
{ - (5) 'Public agency' means the State of Oregon or any
political subdivision thereof or any county, city, district,
authority, public corporation or entity and any of their
instrumentalities organized and existing under law or
charter. - }
SECTION 2. ORS 279.350 is amended to read:
279.350. (1) The hourly rate of wage to be paid by any
contractor or subcontractor to workers upon all public works
shall be not less than the prevailing rate of wage for an hour's
work in the same trade or occupation in the locality where such
labor is performed. The obligation of a contractor or
subcontractor to pay the prevailing rate of wage may be
discharged by making the payments in cash, by the making of
contributions of a type referred to in ORS 279.348
{ - (4)(a) - } { + (1)(a) + }, or by the assumption of an
enforceable commitment to bear the costs of a plan or program of
a type referred to in ORS 279.348 { - (4)(b) - } { +
(1)(b) + }, or any combination thereof, where the aggregate of
any such payments, contributions and costs is not less than the
prevailing rate of wage.
(2) After a contract for a public works is executed with any
contractor or work is commenced upon any public works, the amount
of the prevailing rate of wage shall not be subject to attack in
any legal proceeding by any contractor or subcontractor in
connection with that contract.
(3) It shall not be a defense in any legal proceeding that the
prevailing rate of wage is less than the amount required to be in
the specifications of a contract for public works, or that there
was an agreement between the employee and the employer to work at
less than the wage rates required to be paid under this section.
(4) Every contractor or subcontractor engaged on a project for
which there is a contract for a public work shall keep the
prevailing wage rates for that project posted in a conspicuous
and accessible place in or about the project. Contractors and
subcontractors shall be furnished copies of these wage rates by
the commissioner without charge.
(5) Every contractor or subcontractor engaged on a project for
which there is a contract for a public work to which the
prevailing wage requirements apply that also provides for or
contributes to a health and welfare plan or a pension plan, or
both, for its employees on the project shall post notice
describing such plans in a conspicuous and accessible place in or
about the project. The notice preferably shall be posted in the
same place as the notice required under subsection (4) of this
section. In addition to the description of the plans, the notice
shall contain information on how and where to make claims and
where to obtain further information.
(6)(a) Except as provided in paragraph (c) of this subsection,
no person other than the contractor or subcontractor shall pay or
contribute any portion of the prevailing rate of wage paid by the
contractor or subcontractor to workers employed in the
performance of a public works contract.
(b) For the purpose of this subsection, the prevailing rate of
wage is the prevailing rate of wage specified in the contract.
(c) This subsection is not intended to prohibit payments to a
worker who is enrolled in any government-subsidized training or
retraining program.
(7) No person shall take any action that circumvents the
payment of the prevailing rate of wage to workers employed on a
public works contract, including, but not limited to, reducing an
employee's regular rate of pay on any project not subject to ORS
279.348 to 279.380 in a manner that has the effect of offsetting
the prevailing wage on a public works project.
SECTION 3. ORS 279.356 is amended to read:
279.356. (1) Any contractor or subcontractor or contractor's or
subcontractor's surety who violates the provisions of ORS 279.350
shall be liable to the workers affected in the amount of their
unpaid minimum wages, including all fringe benefits under ORS
279.348 { - (4) - } , and in an additional amount equal to said
unpaid wages as liquidated damages.
(2) Actions to enforce liability to workers under subsection
(1) of this section may be brought as actions on contractors'
bonds as provided for in ORS 279.536.
(3) If the public agency fails to include a provision that the
contractor and any subcontractor shall comply with ORS 279.350 in
the advertisement for bids, the request for bids, the contract
specifications, the accepted bid or elsewhere in the contract
documents, the liability of the public agency for unpaid minimum
wages, as described in subsection (1) of this section, shall be
joint and several with any contractor or subcontractor that had
notice of the requirement to comply with ORS 279.350. The
Commissioner of the Bureau of Labor and Industries may enforce
the provisions of this subsection by a civil action under ORS
279.355 (4), by a civil action on an assigned wage claim under
ORS 652.330, or by an administrative proceeding on an assigned
wage claim under ORS 652.332.
SECTION 4. { + The amendments to ORS 279.348 by section 1 of
this 2001 Act apply only to contracts for public works entered
into on or after the effective date of this 2001 Act. + }
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