75th OREGON LEGISLATIVE ASSEMBLY--2009 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 3737
Senate Bill 972
Sponsored by Senator ROSENBAUM, Representative HOLVEY;
Representatives BUCKLEY, DEMBROW, WITT
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.
Prohibits public agencies from entering into public works
contracts for which contract price exceeds $750,000 unless public
agency verifies that every employer under contract is approved
apprenticeship training agent. Provides exception if local joint
committee or apprenticeship training program does not exist in
state.
Requires contractor and subcontractor that are parties to
contract for which contract price exceeds $750,000 to employ
apprentices for at least 15 percent of total hours worked on
project. Allows Bureau of Labor and Industries to adjust
percentage in certain circumstances.
Requires Bureau of Labor and Industries to develop, adopt and
revise plan to increase diversity among workers employed on
public works projects, including workers who are apprentices.
Requires advisory committee to evaluate periodically minimum
percentage set for number of hours to be worked by apprentices on
public works projects and to assist Commissioner of Bureau of
Labor and Industries in administration of Act.
Requires specifications and contracts for public works for
which contract price exceeds $750,000 to state that contractors
and subcontractors must be approved training agents and that
minimum percentage of total hours worked on public works project
must be performed by apprentices.
Requires contractor or contractor's surety to provide certified
statements concerning employment of apprentices on public works
projects.
Provides for civil penalty of not more than $5,000 per
violation of provision of Act plus additional civil penalty in
amount equal to $20 multiplied by number of hours required to be
worked, but not worked, by apprentices.
Directs moneys collected from additional civil penalty into
State Apprenticeship and Training Education Fund and continuously
appropriates moneys to State Apprenticeship and Training Council
for specified purposes.
A BILL FOR AN ACT
Relating to apprenticeship; creating new provisions; amending ORS
279C.800, 279C.807, 279C.820, 279C.827, 279C.830, 279C.840,
279C.845, 279C.850 and 279C.865; and appropriating money.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2009 Act is added to and made
a part of ORS 660.002 to 660.210. + }
SECTION 2. { + (1) Except as provided in subsection (2) of
this section, a public agency may not enter into a contract for
public works, as defined in ORS 279C.800, for which the contract
price exceeds $750,000 unless the public agency has verified that
every employer under the contract, including the contractor and
any subcontractor, is an approved training agent that is approved
by a local joint committee under ORS 660.137.
(2) A public agency may enter into a contract described in
subsection (1) of this section even if an employer under the
contract is not an approved training agent if the employer is not
an approved training agent because a local joint committee or
program for the apprenticeable occupations used by the employer
does not exist in this state. This subsection does not require an
employer to start a local joint committee or become an approved
training agent if a committee or program does not exist in this
state.
(3) If a local joint committee for an apprenticeable occupation
used by an employer does not exist in the county in which the
employer is located, the State Director of Apprenticeship and
Training may extend the jurisdiction of a local joint committee
in an adjoining county to the county in which the employer is
located. The director's action is subject to ratification by the
State Apprenticeship and Training Council. + }
SECTION 3. { + Section 4 of this 2009 Act is added to and made
a part of ORS 279C.800 to 279C.870. + }
SECTION 4. { + (1) A contractor or subcontractor that is a
party to a contract for public works for which the contract price
exceeds $750,000 shall employ apprentices participating in
programs of apprenticeship and training under ORS 660.002 to
660.210 for at least 15 percent of the total hours worked on the
public works project by workers in apprenticeable occupations.
Either the contractor or the subcontractor may meet the
requirement set forth in this subsection, except that the
subcontractor shall independently meet the requirement in
performing work on any subcontract for which the subcontract
price exceeds $750,000.
(2) If a contractor or subcontractor subject to subsection (1)
of this section is unable at any time after the execution of the
contract to meet the requirement set forth in subsection (1) of
this section because too few apprentices are available to the
contractor or subcontractor, the contractor shall notify the
Commissioner of the Bureau of Labor and Industries and the public
agency that awarded the contract for public works. In the
notification the contractor shall document the contractor's or
subcontractor's efforts to locate and employ suitable apprentices
in sufficient detail to enable the commissioner to verify that
the contractor or subcontractor is unable to meet the requirement
set forth in subsection (1) of this section because too few
apprentices are available to the contractor or subcontractor.
(3) If the commissioner verifies the information contained in
the notification provided under subsection (2) of this section,
the commissioner may adjust the minimum percentage required under
subsection (1) of this section to reflect the number of
apprentices available to the contractor or subcontractor for work
on the affected public works contract. The parties to the
contract may execute an amendment to the contract that reflects
the adjusted minimum percentage.
(4) Every contractor or subcontractor engaged on a project for
which there is a contract for public works shall post notices of
the requirement set forth in subsection (1) of this section in
conspicuous and accessible places in or about the project,
preferably in the same places as the notice required under ORS
279C.840 (4). The notice shall describe the requirement and shall
contain information about how to report a violation of the
requirement to the commissioner and where to obtain further
information.
(5) Except as provided in subsections (2) and (3) of this
section, a person may not take any action to circumvent the
requirement set forth in subsection (1) of this section,
including, but not limited to, structuring the work performed on
a project so as to avoid employing workers in apprenticeable
occupations. + }
SECTION 5. ORS 279C.800 is amended to read:
279C.800. As used in ORS 279C.800 to 279C.870, unless the
context requires otherwise:
{ + (1) 'Apprentice' has the meaning given that term in ORS
660.010.
(2) 'Apprenticeable occupation' has the meaning given that term
in ORS 660.010.
(3) 'Apprenticeship agreement' has the meaning given that term
in ORS 660.010. + }
{ - (1) - } { + (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 under a plan,
fund or program; and
(b) The rate of costs to the contractor or subcontractor that
may be reasonably anticipated in providing benefits to workers
pursuant to an enforceable commitment to carry out a financially
responsible plan or program that 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 when the contractor or subcontractor is not required by
other federal, state or local law to provide any of these
benefits.
{ - (2) - } { + (5) + } 'Housing' has the meaning given
that term in ORS 456.055.
{ - (3) - } { + (6) + } 'Locality' means the following
district in which the public works, 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.
{ - (4) - } { + (7) + } 'Prevailing rate of wage' means the
rate of hourly wage, including all fringe benefits, 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.
{ - (5) - } { + (8) + } 'Public agency' means the State of
Oregon or any political subdivision thereof or any county, city,
district, authority, public corporation or entity and any
instrumentality thereof organized and existing under law or
charter.
{ - (6)(a) - } { + (9)(a) + } '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;
(B) A project for the construction, reconstruction, major
renovation or painting of a privately owned road, highway,
building, structure or improvement of any type that uses funds of
a private entity and $750,000 or more of funds of a public
agency; or
(C) A project for the construction of a privately owned road,
highway, building, structure or improvement of any type that uses
funds of a private entity and in which 25 percent or more of the
square footage of the completed project will be occupied or used
by a public agency.
(b) 'Public works' does not include:
(A) The reconstruction or renovation of privately owned
property that is leased by a public agency; or
(B) The renovation of publicly owned real property that is more
than 75 years old by a private nonprofit entity if:
(i) The real property is leased to the private nonprofit entity
for more than 25 years;
(ii) Funds of a public agency used in the renovation do not
exceed 15 percent of the total cost of the renovation; and
(iii) Contracts for the renovation were advertised or, if not
advertised, were entered into before July 1, 2003, but the
renovation has not been completed on or before July 13, 2007.
SECTION 6. ORS 279C.807 is amended to read:
279C.807. (1) The Bureau of Labor and Industries shall
develop { + , + } { - and - } adopt { + and revise as
necessary + } a plan to increase diversity statewide among
workers employed on projects subject to ORS 279C.800 to
279C.870 { + , including workers who are apprentices
participating in programs of apprenticeship and training under
ORS 660.002 to 660.210 + }. The bureau shall develop the plan
after conducting a statewide public process to solicit proposals
to increase diversity and shall adopt the plan after considering
proposals submitted to the bureau.
(2) The bureau shall report each year to the Legislative
Assembly or to the appropriate legislative interim committee
concerning progress that results from the plan adopted under this
section and may submit recommendations for legislation or other
measures that will improve diversity among workers employed on
projects subject to ORS 279C.800 to 279C.870 { + , including
workers who are apprentices participating in a program of
apprenticeship and training under ORS 660.002 to 660.210 + }. The
bureau shall submit the first report no later than January 1,
2009.
SECTION 7. ORS 279C.820 is amended to read:
279C.820. (1) The Commissioner of the Bureau of Labor and
Industries shall appoint an advisory committee to assist the
commissioner in the administration of ORS 279C.800 to 279C.870.
(2) The advisory committee must include equal representation of
members from management and labor in the building and
construction industry who perform work on public works contracts
and such other interested parties as the commissioner shall
appoint.
{ + (3) The advisory committee, at least once each year,
shall evaluate the minimum percentage set forth in section 4 of
this 2009 Act and make recommendations to the commissioner
concerning needed adjustments in the minimum percentage. The
advisory committee shall base the recommendations on actual or
projected increases or decreases in the availability of
apprentices in apprenticeable occupations used by employers in
public works projects.
(4) The advisory committee shall consult with the State
Apprenticeship and Training Council when necessary to:
(a) Determine the current and projected availability of
apprentices in apprenticeable occupations used by employers in
public works projects; and
(b) Make recommendations to the commissioner or otherwise
assist the commissioner in the administration of the provisions
of ORS 279C.800 to 279C.870 related to apprenticeship
requirements in public works contracts. + }
SECTION 8. ORS 279C.827 is amended to read:
279C.827. (1)(a) A public agency may not divide a public works
project into more than one contract for the purpose of avoiding
compliance with ORS 279C.800 to 279C.870.
(b) When the Commissioner of the Bureau of Labor and Industries
determines that a public agency has divided a public works
project into more than one contract for the purpose of avoiding
compliance with ORS 279C.800 to 279C.870, the commissioner shall
issue an order compelling compliance.
(c) In making determinations under this subsection, the
commissioner shall consider:
(A) The physical separation of the project structures;
(B) The timing of the work on project phases or structures;
(C) The continuity of project contractors and subcontractors
working on project parts or phases;
(D) The manner in which the public agency and the contractors
administer and implement the project;
(E) Whether a single public works project includes several
types of improvements or structures; and
(F) Whether the combined improvements or structures have an
overall purpose or function.
(2) If a project is a public works of the type described in ORS
279C.800 { - (6)(a)(B) or (C) - } { + (9)(a)(B) or (C) + },
the commissioner shall divide the project, if appropriate, after
applying the considerations set forth in subsection (1)(c) of
this section to separate the parts of the project that include
funds of a public agency or that will be occupied or used by a
public agency from the parts of the project that do not include
funds of a public agency and that will not be occupied or used by
a public agency. If the commissioner divides the project, any
part of the project that does not include funds of a public
agency and that will not be occupied or used by a public agency
is not subject to ORS 279C.800 to 279C.870.
(3) If a project includes parts that are owned by a public
agency and parts that are owned by a private entity, the
commissioner shall divide the project, if appropriate, after
applying the considerations set forth in subsections (1)(c) and
(2) of this section to separate the parts of the project that are
public works from the parts of the project that are not public
works. If the commissioner divides the project, parts of the
project that are not public works are not subject to ORS 279C.800
to 279C.870.
SECTION 9. ORS 279C.830 is amended to read:
279C.830. (1)(a) Except as provided in paragraph (d) of this
subsection, the specifications for every contract for public
works shall contain a provision stating the existing state
prevailing rate of wage and, if applicable, the federal
prevailing rate of wage required under the Davis-Bacon Act (40
U.S.C. 3141 et seq.) that may be paid to workers in each trade
or occupation required for the public works employed in the
performance of the contract either by the contractor or
subcontractor or other person doing or contracting to do the
whole or any part of the work contemplated by the contract. When
the prevailing rates of wage are available electronically or are
accessible on the Internet, the rates may be incorporated into
the specifications by referring to the electronically accessible
or Internet-accessible rates and by providing adequate
information about how to access the rates.
(b) If a public agency is required under paragraph (a) of this
subsection to include the state and federal prevailing rates of
wage in the specifications, the public agency also shall include
in the specifications information showing which prevailing rate
of wage is higher for workers in each trade or occupation in each
locality, as determined by the Commissioner of the Bureau of
Labor and Industries under ORS 279C.815 (2)(c).
(c) Every contract and subcontract shall contain a provision
that the workers shall be paid not less than the specified
minimum hourly rate of wage in accordance with ORS 279C.838 and
279C.840.
(d) A public works project described in ORS 279C.800
{ - (6)(a)(B) or (C) - } { + (9)(a)(B) or (C) + } is subject
to the existing state prevailing rate of wage or, if applicable,
the federal prevailing rate of wage required under the
Davis-Bacon Act that is in effect at the time a public agency
enters into an agreement with a private entity for the project.
After that time, the specifications for any contract for the
public works shall include the applicable prevailing rate of
wage.
(2) The specifications for every contract for public works
between a public agency and a contractor shall contain a
provision stating that a fee is required to be paid to the
Commissioner of the Bureau of Labor and Industries as provided in
ORS 279C.825 (1). The contract shall contain a provision that the
fee shall be paid to the commissioner under the administrative
rule of the commissioner.
(3) The specifications for every contract for public works
shall contain a provision stating that the contractor and every
subcontractor must have a public works bond filed with the
Construction Contractors Board before starting work on the
project, unless exempt under ORS 279C.836 (4), (7), (8) or (9).
Every contract awarded by a contracting agency shall contain a
provision requiring the contractor:
(a) To have a public works bond filed with the Construction
Contractors Board before starting work on the project, unless
exempt under ORS 279C.836 (4), (7), (8) or (9).
(b) To include in every subcontract a provision requiring the
subcontractor to have a public works bond filed with the
Construction Contractors Board before starting work on the
project, unless exempt under ORS 279C.836 (4), (7), (8) or (9).
{ + (4)(a) The specifications for every contract for public
works for which the contract price exceeds $750,000 shall contain
a provision stating that the contractor and every subcontractor
must be an approved training agent that is approved by a local
joint committee under ORS 660.137, if a committee or program of
apprenticeship and training for the apprenticeable occupations
used by the contractor or subcontractor exists in this state.
(b) For a contract between a public agency and a contractor for
which the contract price exceeds $750,000, the specifications
required by paragraph (a) of this subsection also shall contain a
provision stating the minimum percentage of the total hours
worked on the public works project by workers in apprenticeable
occupations that must be performed by apprentices participating
in programs of apprenticeship and training under ORS 660.002 to
660.210. The minimum percentage set forth in the specifications
may not be less than the minimum percentage set forth in section
4 of this 2009 Act. The workers may be employed by the contractor
or any subcontractor on the public works project, except that a
subcontractor shall independently meet the minimum percentage
requirement in performing work on any subcontract for which the
subcontract price exceeds $750,000.
(c) A contract or subcontract for public works for which the
contract price exceeds $750,000 shall contain a provision stating
that the contractor and every subcontractor must be an approved
training agent that is approved by a local joint committee under
ORS 660.137, if a committee or program of apprenticeship and
training for the apprenticeable occupations used by the
contractor or subcontractor exists in this state.
(d) A contract described in paragraph (c) of this subsection
between a public agency and a contractor and any subcontract
between a contractor and a subcontractor for which the
subcontract price exceeds $750,000 also shall contain a provision
stating the minimum percentage of the total hours worked on the
public works project by workers in apprenticeable occupations
that must be performed by apprentices participating in programs
of apprenticeship and training under ORS 660.002 to 660.210. The
minimum percentage set forth in the contract or subcontract may
not be less than the minimum percentage set forth in section 4 of
this 2009 Act. The apprentices may be employed by the contractor
or any subcontractor on the public works project, except that a
subcontractor shall independently meet the minimum percentage
requirement in performing work on any subcontract for which the
subcontract price exceeds $750,000. + }
SECTION 10. ORS 279C.840 is amended to read:
279C.840. (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 the
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 279C.800
{ - (1)(a) - } { + (4)(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 279C.800 { - (1)(b) - } { +
(4)(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 public works is executed with any
contractor or work is commenced upon any public works, the amount
of the prevailing rate of wage is not subject to attack in any
legal proceeding by any contractor or subcontractor in connection
with that contract.
(3) It is not 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 works shall keep the
prevailing rates of wage for that project posted in a conspicuous
and accessible place in or about the project. The Commissioner of
the Bureau of Labor and Industries shall furnish without charge
copies of the prevailing rates of wage to contractors and
subcontractors.
(5) Every contractor or subcontractor engaged on a project for
which there is a contract for a public works to which the
prevailing wage requirements apply that also provides or
contributes to a health and welfare plan or a pension plan, or
both, for the contractor or subcontractor's employees on the
project shall post a notice describing the plan 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 plan, 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 may 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) A person may not 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
279C.800 to 279C.870 in a manner that has the effect of
offsetting the prevailing rate of wage on a public works project.
SECTION 11. ORS 279C.845 is amended to read:
279C.845. (1) The contractor or the contractor's surety and
every subcontractor or the subcontractor's surety shall file
certified statements with the public agency in writing, on a form
prescribed by the Commissioner of the Bureau of Labor and
Industries, certifying:
(a) The hourly rate of wage paid each worker whom the
contractor or the subcontractor has employed upon the public
works; and
(b) That no worker employed upon the public works has been paid
less than the prevailing rate of wage or less than the minimum
hourly rate of wage specified in the contract.
(2) The certified statement shall be verified by the oath of
the contractor or the contractor's surety or subcontractor or the
subcontractor's surety that the contractor or subcontractor has
read the certified statement and knows the contents thereof and
that the same is true to the contractor or subcontractor's
knowledge.
(3) The certified statements shall set out accurately and
completely the payroll records for the prior week, including the
name and address of each worker, the worker's correct
classification, { + the worker's apprenticeship agreement
registration number, if any, + } rate of pay, daily and weekly
number of hours worked, deductions made and actual wages paid.
{ + (4) In addition to the certified statements required by
subsection (1) of this section, the contractor or the
contractor's surety and every subcontractor or the
subcontractor's surety shall file certified apprenticeship
utilization statements with the public agency, in writing and on
a form prescribed by the commissioner, that show the weekly
cumulative total of hours worked on the public works project by
apprentices participating in programs of apprenticeship and
training under ORS 660.002 to 660.210. The statements required by
this subsection shall be verified as provided in subsection (2)
of this section. + }
{ - (4) - } { + (5) + } The contractor or subcontractor
shall deliver or mail each certified statement required by
{ - subsection (1) - } { + subsections (1) and (4) + } of this
section to the public agency. Certified statements for each week
during which the contractor or subcontractor employs a worker
upon the public works shall be submitted once a month, by the
fifth business day of the following month. Information submitted
on certified statements may be used only to ensure compliance
with the provisions of ORS 279C.800 to 279C.870.
{ - (5) - } { + (6) + } Each contractor or subcontractor
shall preserve the certified statements for a period of three
years from the date of completion of the contract.
{ - (6) - } { + (7) + } Certified statements received by a
public agency are public records subject to the provisions of ORS
192.410 to 192.505.
{ - (7) - } { + (8) + } Notwithstanding ORS 279C.555 or
279C.570 (7), if a contractor is required to file certified
statements under this section, the public agency shall retain 25
percent of any amount earned by the contractor on the public
works until the contractor has filed with the public agency
certified statements as required by this section. The public
agency shall pay the contractor the amount retained under this
subsection within 14 days after the contractor files the
certified statements as required by this section, regardless of
whether a subcontractor has failed to file certified statements
as required by this section. The public agency is not required to
verify the truth of the contents of certified statements filed by
the contractor under this section.
{ - (8) - } { + (9) + } Notwithstanding ORS 279C.555, the
contractor shall retain 25 percent of any amount earned by a
first-tier subcontractor on a public works until the
subcontractor has filed with the public agency certified
statements as required by this section. The contractor shall
verify that the first-tier subcontractor has filed the certified
statements before the contractor may pay the subcontractor any
amount retained under this subsection. The contractor shall pay
the first-tier subcontractor the amount retained under this
subsection within 14 days after the subcontractor files the
certified statements as required by this section. Neither the
public agency nor the contractor is required to verify the truth
of the contents of certified statements filed by a first-tier
subcontractor under this section.
{ + (10) For purposes of this section, 'certified statement '
includes the certified statements described in subsection (1) of
this section and the certified apprenticeship utilization
statements described in subsection (4) of this section. + }
SECTION 12. ORS 279C.850 is amended to read:
279C.850. (1) At any reasonable time the Commissioner of the
Bureau of Labor and Industries may enter the office or business
establishment of any contractor or subcontractor performing
public works and gather facts and information necessary to
determine whether the { - prevailing rate of wage is actually
being paid by such contractor or subcontractor to workers upon
public works. - } { + contractor or subcontractor is:
(a) Actually paying the prevailing rate of wage to workers upon
public works; and
(b) Meeting the requirement set forth in section 4 of this 2009
Act. + }
(2) Upon request by the commissioner, every contractor or
subcontractor performing work on public works shall make
available to the commissioner for inspection during normal
business hours any payroll or other records in the possession or
under the control of the contractor or subcontractor that are
deemed necessary by the commissioner to determine whether the
prevailing rate of wage is actually being paid by such contractor
or subcontractor to workers upon public works { + and whether
the contractor or subcontractor is meeting the requirement set
forth in section 4 of this 2009 Act + }. The commissioner's
request must be made a reasonable time in advance of the
inspection.
(3) Notwithstanding ORS 192.410 to 192.505, any record obtained
or made by the commissioner under this section is not open to
inspection by the public.
(4) The commissioner may, without necessity of an assignment,
initiate legal proceedings against employers to enjoin future
failures to pay required prevailing rates of wage or overtime pay
and to require the payment of prevailing rates of wage or
overtime pay due employees. The commissioner is entitled to
recover, in addition to other costs, such sum as the court or
judge may determine reasonable as attorney fees. If the
commissioner does not prevail in the action, the commissioner
shall pay all costs and disbursements from the Bureau of Labor
and Industries Account.
SECTION 13. ORS 279C.865 is amended to read:
279C.865. (1) In addition to any other penalty provided by law,
the Commissioner of the Bureau of Labor and Industries may assess
a civil penalty not to exceed $5,000 for each violation of any
provision of ORS 279C.800 to 279C.870 or any rule of the
commissioner adopted thereunder.
{ + (2) In addition to any penalty assessed under subsection
(1) of this section, the commissioner may assess a civil penalty
for violation of the requirement set forth in section 4 of this
2009 Act in an amount equal to $20 multiplied by the number of
hours required under section 4 of this 2009 Act to be performed
by apprentices participating in programs of apprenticeship and
training under ORS 660.002 to 660.210, less an amount equal to
$20 multiplied by the number of hours actually performed by such
apprentices. + }
{ - (2) - } { + (3) + } Civil penalties under this section
shall be imposed as provided in ORS 183.745.
{ - (3) - } { + (4) + } All moneys collected as penalties
under { + subsection (1) of + } this section shall be first
applied toward reimbursement of costs incurred in determining
violations, conducting hearings and assessing and collecting the
penalties. The remainder, if any, of moneys collected as
penalties under { + subsection (1) of + } this section shall be
paid into the State Treasury and credited to the General Fund and
are available for general governmental expenses.
{ + (5) All moneys collected as penalties under subsection
(2) of this section shall be paid into the State Treasury and the
State Treasurer shall deposit the moneys into a fund created
separate and distinct from the General Fund and known as the
State Apprenticeship and Training Education Fund. Interest earned
by the State Apprenticeship and Training Education Fund shall be
credited to the fund. The moneys in the State Apprenticeship and
Training Education Fund are continuously appropriated to the
State Apprenticeship and Training Council for the purpose of:
(a) Making grants on a competitive basis, in consultation with
the Department of Education and the Department of Community
Colleges and Workforce Development and in conformance with a plan
adopted under ORS 279C.807, to programs that directly provide
career technical education for occupations prevalent in the
construction and manufacturing industries; and
(b) Overseeing and monitoring apprenticeship and training
programs, including programs identified in paragraph (a) of this
subsection, for compliance with applicable rules, standards and
laws.
(6) The State Apprenticeship and Training Council may make
grants from the State Apprenticeship and Training Education Fund
described in subsection (5) of this section to:
(a) Apprenticeship and training programs, direct entry programs
and preapprenticeship and youth apprenticeship programs that are
registered with the council;
(b) Public school districts and education service districts; or
(c) Public post-secondary educational institutions. + }
SECTION 14. { + Sections 2 and 4 of this 2009 Act and the
amendments to ORS 279C.800, 279C.807, 279C.820, 279C.827,
279C.830, 279C.840, 279C.845, 279C.850 and 279C.865 by sections 5
to 13 of this 2009 Act apply to public works contracts first
advertised or, if not advertised, first entered into on or after
the effective date of this 2009 Act. + }
----------