H-8217

   Amend Senate File 2364, as amended, passed, and reprinted by the Senate, as follows:
   1.  By striking everything after the enacting clause and inserting: 
   <Section 1.  Section 84A.5, subsection 4, Code 2020, is amended to read as follows:
   4.  The division of labor services is responsible for the administration of the laws of this state under chapters 88, 88A, 88B, 89, 89A, 89B, 90A, 91, 91A, 91C, 91D, 91E, 91F, 92, and 94A, and sections 73A.21 and 85.68. The executive head of the division is the labor commissioner, appointed pursuant to section 91.2.
   Sec. 2.  Section 91.4, subsection 2, Code 2020, is amended to read as follows:
   2.  The director of the department of workforce development, in consultation with the labor commissioner, shall, at the time provided by law, make an annual report to the governor setting forth in appropriate form the business and expense of the division of labor services for the preceding year, the number of remedial actions taken under chapter 89A, the number of disputes or violations processed by the division and the disposition of the disputes or violations, and other matters pertaining to the division which are of public interest, together with recommendations for change or amendment of the laws in this chapter and chapters 88, 88A, 88B, 89, 89A, 89B, 90A, 91A, 91C, 91D, 91E, 91F, 92, and 94A, and section 85.68, and the recommendations, if any, shall be transmitted by the governor to the first general assembly in session after the report is filed.
   Sec. 3.  NEW SECTION.  91F.1  Short title.  
   This chapter shall be known and may be cited as the “Public Improvement Quality Protection Act”.
   Sec. 4.  NEW SECTION.  91F.2  Public policy.  
   It is in the public interest that public improvements are completed by the best means and highest quality of labor reasonably available, and that workers working on public improvements be compensated according to the real value of the services they perform. It is the policy of this state that the wages of workers working on public improvements should be at least equal to the prevailing wage rates paid for similar work by responsible contractors in the community as a whole in order to accomplish all of the following:
   1.  Protect workers and their contractors and subcontractors from the effects of serious and unfair competition resulting from wage levels detrimental to efficiency and well-being.
   2.  Ensure that contractors compete with one another on the basis of the ability to perform work competently and efficiently while maintaining community-established compensation standards.
   3.  Recognize that local participation in public improvements and family wage income and benefits are essential to the protection of community standards.
   4.  Encourage training and education of workers to industry skills standards.
   5.  Encourage contractors and subcontractors to use funds allocated for employee fringe benefits for the actual purchase of those benefits.
   Sec. 5.  NEW SECTION.  91F.3  Definitions.  
   As used in this chapter, unless the context otherwise requires:
   1.  “Commissioner” means the labor commissioner appointed pursuant to section 91.2.
   2.  “Contractor” or “subcontractor” means a person who undertakes, offers to undertake, purports to have the capacity to undertake, or submits a bid, individually or through others, to engage in a public improvement.
   3.  “Custom fabrication” means the fabrication of plumbing, heating, cooling, ventilation, architectural systems, structural systems, exhaust duct systems, or mechanical insulation.
   4.  “Division” means the division of labor of the department of workforce development.
   5.  a.  “Fringe benefits” means the following for the provision or purchase of any of the benefits enumerated in paragraph “b”:
   (1)  The contribution irrevocably made by a contractor or subcontractor to a trustee or to a third person pursuant to a plan, fund, or program.
   (2)  The 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, given in writing to the workers affected.
   b.  (1)  Medical or hospital care.
   (2)  Pensions or annuities on retirement or death.
   (3)  Supplemental unemployment benefits.
   (4)  Life insurance.
   (5)  Disability and sickness insurance.
   (6)  Accident insurance for nonwork-related accidents.
   (7)  Vacation or holiday pay.
   (8)  Defraying costs of apprenticeship programs approved by and registered with the United States department of labor’s office of apprenticeship.
   6.  “Interested party” means any of the following:
   a.  A contractor who submits a bid for the purpose of securing the award of a contract for a public improvement.
   b.  A subcontractor of a contractor mentioned in a bid referred to in paragraph “a”.
   c.  A worker employed by a contractor or subcontractor described in either paragraph “a” or “b”.
   d.  A labor organization that represents workers engaged in the same craft or classification as workers employed by a contractor or subcontractor described in either paragraph “a” or “b” and that exists, in whole or in part, for the purpose of negotiating with employers concerning the wages, hours, or terms and conditions of employment of employees.
   e.  A joint labor-management committee established pursuant to the federal Labor Management Cooperation Act of 1978, 29 U.S.C. §175a.
   7.  “Locality” means a county of this state.
   8.  “Maintenance work” means the repair of existing public improvements when the size, type, or extent of the public improvement is not changed or increased.
   9.  “Prevailing wage rate” means the hourly wage plus fringe benefits that the commissioner determines prevails in accordance with this chapter, including all of the following:
   a.  Apprentice ratios and the prevailing apprentice pay levels for each craft, classification, or type of worker which the commissioner determines prevails in accordance with section 91F.5.
   b.  A prevailing rate for overtime pay for work in excess of the normal prevailing workday and for weekend overtime pay for each craft, classification, or type of worker, including apprentices.
   c.  Holiday pay for holidays that prevail in the locality in which the work is being performed.
   10.  “Public body” means the state and any of its political subdivisions, including but not limited to a county, city, township, school district, state board of regents, and public utility. For the purposes of this chapter, “public utility” includes municipally owned utilities and municipally owned waterworks.
   11.  a.  “Public improvement” means any of the following that meets the criteria set out in paragraphs “b” and “c”:
   (1)  Construction, alteration, reconstruction, repair, rehabilitation, refinishing, refurbishing, remodeling, renovation, custom fabricating, maintenance, landscaping, improving, moving, wrecking, painting, decorating, or demolishing of, or adding to or subtracting from any building, structure, highway, road, street, bridge, alley, sewer, ditch, sewage disposal plant, waterworks, parking facility, railroad, excavation or other structure, project, development, or improvement, or any part thereof undertaken by a public body, including any of the following related activities:
   (a)  The erection of scaffolding or other structures or works.
   (b)  The maintenance, repair, assembly, or disassembly of equipment.
   (c)  The testing of materials.
   (d)  The hauling of refuse from a site to an outside disposal location.
   (e)  The cleaning of grounds or structures.
   (f)  The addition to or fabrication into any structure, project, development, or improvement of any material or article of merchandise undertaken by a public body.
   (2)  The preparation and removal of roadway construction zones, lane closures, flagging, or traffic diversions undertaken by a public body.
   (3)  The installation, repair, maintenance, or calibration of monitoring equipment for underground storage tanks undertaken by a public body.
   (4)  Work that is performed on any property or premises dedicated exclusively or nearly so to the completion of a public improvement, and transportation of supplies, material, and equipment to or from the property or premises undertaken by a public body.
   b.  Work on the public improvement is performed under public supervision or direction, and the work is financed wholly or in part from public funds, or if at the time of commencement of the public improvement all of the following conditions with respect to the public improvement are met:
   (1)  Not less than fifty-five percent of the structure is leased by a public body, or is subject to an agreement to be subsequently leased by a public body.
   (2)  The portion of the structure that is leased or subject to an agreement to be subsequently leased by a public body measures more than twenty thousand square feet.
   c.  The public improvement has an estimated total cost that exceeds twenty-five thousand dollars.
   12.  “Worker” means an individual who performs any labor or service for a contractor or subcontractor on a public improvement but does not include an individual when transporting a seller, supplier, manufacturer, or processor of materials or equipment. The individual is deemed an employee of a contractor or subcontractor unless all of the following apply:
   a.  The individual provides labor or services free from the direction or control over the means and manner of providing the labor or services, subject only to the right of the person for whom the labor or services are provided to specify the desired results.
   b.  The individual providing the labor or services is responsible for obtaining business registrations or licenses required by state law or local ordinance to provide the labor or services.
   c.  The individual providing the labor or services furnishes the tools and equipment necessary to provide the labor or services.
   d.  The individual providing the labor or services has the authority to hire and fire employees to perform the labor or services.
   e.  Payment for the labor or services is made upon completion of the performance of specific portions of a public improvement, or is made on the basis of a periodic retainer.
   f.  The individual providing the labor or services represents to the public that the labor or services are to be provided by an independently established business. An individual is engaged in an independently established business when four or more of the following circumstances exist:
   (1)  Labor or services are primarily performed at a location separate from the individual’s residence or in a specified portion of the residence that is set aside for performing labor or services.
   (2)  Commercial advertising or business cards are purchased by the individual, or the individual is a member of a trade or professional association.
   (3)  Telephone or electronic mail listings used by the individual for the labor or services are different from the individual’s personal listings.
   (4)  Labor or services are performed only pursuant to a written contract.
   (5)  Labor or services are performed for two or more persons or entities within a period of one year.
   (6)  The individual assumes financial responsibility for errors and omissions in the performance of the labor or services as evidenced by insurance, performance bonds, and warranties relating to the labor or services provided.
   Sec. 6.  NEW SECTION.  91F.4  Administration —— rules.
   1.  The commissioner and the division shall administer this chapter.
   2.  The commissioner shall adopt rules pursuant to chapter 17A to administer this chapter.
   Sec. 7.  NEW SECTION.  91F.5  Determination of prevailing wages.
   1.  The commissioner shall determine annually and publish, on the first business day of July, the prevailing wage rates by locality for each craft, classification, or type of worker needed to perform work on public improvements. The rates shall be conclusive for one year from the date of publication unless superseded within the one year by a later publication of the commissioner, or for a longer period as provided in subsection 5.
   2.  The commissioner shall announce all prevailing wage rate determinations by locality and give notice by posting them on the portion of the department of workforce development’s internet site related to the division. A printed version of the prevailing wage rates for the state shall be available to the public upon request to the division.
   3.  The public body awarding any contract for a public improvement, or otherwise undertaking any public improvement, shall obtain from the internet site the prevailing wage rate in the locality in which work on the public improvement is to be performed for each craft, classification, or type of worker needed to perform work on the public improvement. After a public improvement contract is awarded, or a public improvement is otherwise undertaken, the prevailing wage rate published by the commissioner and stated in the public body’s public improvement procurement documents shall remain in effect throughout the duration of the public improvement unless superseded by a later determination and publication by the commissioner, or unless multiyear prevailing wage rates have been published by the commissioner at the time the public improvement procurement documents were released.
   4.  a.  In determining the annual prevailing wage rate for any craft, classification, or type of worker, the commissioner shall ascertain and consider the applicable wage rates and fringe benefits established by collective bargaining agreements, the prevailing wage rate determinations that may exist for federal public improvements within the locality, and other data obtained by the department during any prevailing wage rate survey of contractors who participate in an apprenticeship program approved by and registered with the United States department of labor’s office of apprenticeship, who provide health insurance and retirement benefits for their workers, and who are registered with the division. Based upon these considerations, the commissioner shall calculate the prevailing wage rates based on the wage rate plus fringe benefits most often occurring for each craft, classification, or other type of worker within each locality.
   b.  The minimum annual prevailing wage rate determination established by the department shall not be lower than the prevailing wage rate determination that may exist for federal public improvements within the locality and in the nearest labor market area.
   c.  None of the fringe benefits enumerated in this chapter may be considered in the determination of prevailing wage rates if the contractor or subcontractor is required by other federal, state, or local law to provide such fringe benefits.
   5.  If the commissioner determines that the prevailing wage rate for any craft, classification, or type of worker is the rate established by a collective bargaining agreement applicable in the locality, the commissioner may adopt that rate by reference and that determination shall be effective for the life of the agreement or until the commissioner adopts another rate.
   6.  a.  At any time within fifteen days after the division has published on the department of workforce development’s internet site the annual prevailing wage rates for each classification, craft, or other type of worker in the locality, any interested person affected may object to the determination or the part of the determination as the interested person may deem objectionable by filing a written notice with the commissioner by restricted certified mail as defined in section 618.15. When objecting to a prevailing wage rate determination, the interested person shall submit, as a part of the written notice, the prevailing wage rate the interested person believes to be the correct prevailing wage rate determination, stating the specific grounds to support that position. Upon receipt of the notice of objection, the commissioner shall reconsider the determination and shall affirm or modify the determination and reply in writing by restricted certified mail to the interested person within fifteen days from the date of the receipt of the notice of objection. Any modification to the prevailing wage rate determination shall be effective on the date the modification is published by the commissioner.
   b.  If the commissioner declines to modify the determination, within ten days upon receiving receipt of the commissioner’s decision, the interested person affected may submit in writing the objection to the division by restricted certified mail, stating the specified grounds of the objection. The department of inspections and appeals shall be notified of the objection and set a date for a hearing before an administrative law judge on the objection, after giving notice by restricted certified mail to the interested person and the division at least ten days before the date of the hearing of the time and place of the hearing. The hearing shall be held within forty-five days after the objection is filed, and shall not be postponed or reset for a later date except upon the consent, in writing, of the interested person and the division.
   7.  The party requesting a hearing shall have the burden of establishing that the annual prevailing wage rate determination for that locality was not determined in accordance with this chapter. If the party requesting a hearing under this section objects to the commissioner’s failure to include a craft, classification, or type of worker within the annual prevailing wage rate determination in the locality, the objector shall have the burden of establishing that there is no existing prevailing wage rate classification for the particular craft, classification, or type of worker in any of the localities under consideration.
   8.  The administrative law judge may in the administrative law judge’s discretion hear each written objection filed separately or consolidate for hearing any one or more written objections filed with the division. At the hearing, the division shall introduce into evidence the investigation it instituted which formed the basis of its determination, and the division or any interested objectors may introduce evidence that is material to the determination. The administrative law judge shall rule upon each written objection and make a final determination, as the administrative law judge believes the evidence warrants, and promptly serve a copy of the final determination by personal service or restricted certified mail on all parties to the proceedings. The administrative law judge shall render a final determination within thirty days after the conclusion of the hearing.
   9.  If proceedings to review judicially the final determination of the administrative law judge are not instituted as provided in this section, the determination shall be final and binding. The provisions of section 17A.19 shall apply to and govern all proceedings. Appeals from all final orders and judgments entered by the court in review of the final determination of the administrative law judge may be taken by any party to the action. In all reviews or appeals under this chapter, the attorney general shall represent the division and defend its determination.
   10.  This section does not give reason or provide cause for an injunction to halt or delay any public improvement.
   Sec. 8.  NEW SECTION.  91F.6  Payment of prevailing wages required.
   1.  Contractors and subcontractors engaged in a public improvement shall pay not less than the current specified prevailing wage rates to all of their workers engaged in the public improvement. However, this chapter does not prohibit the payment of more than the prevailing wage rate to any workers engaged in a public improvement.
   2.  All contractors and subcontractors required to pay the prevailing wage rate under this chapter shall pay the wages in legal tender, without any deduction for food, sleeping accommodations, transportation, use of tools or safety equipment, vehicle or equipment rental, or any other thing of any kind or description.
   Sec. 9.  NEW SECTION.  91F.7  Requirements for public improvements.
   1.  The public body awarding a contract for a public improvement or otherwise undertaking a public improvement shall specify in the call for bids for the contract that this chapter applies to the public improvement.
   2.  If a public improvement requires the payment of prevailing wage rates, the public body shall require the contractor to execute a written instrument that not less than the prevailing wage rate shall be paid to all workers performing work on the public improvement. The written instrument shall also contain a provision that if it is found that any of the contractor’s workers engaged in the public improvement have been paid at a wage rate less than the prevailing wage rate required by this chapter, the public body may terminate the contractor’s right to proceed with the work and the contractor and its sureties shall be liable to the public body for any excess costs occasioned by the failure to pay the prevailing wage rate. The written instrument shall have attached a list of the specified prevailing wage rates for all crafts, classifications, or types of workers in the locality for each worker needed to be included in the contract for the public improvement.
   3.  If a contract is let for a public improvement requiring the payment of prevailing wage rates, the public body awarding the contract shall cause to be inserted in the public improvement specifications and contract a stipulation that not less than the prevailing wage rate shall be paid to all workers performing work under the contract. The contract shall also contain a provision to the effect that if it is found that any of the contractor’s workers engaged in the public improvement have been paid at a wage rate less than the prevailing wage rate required by this chapter, the public body may terminate the contractor’s right to proceed with the work and the contractor and its sureties shall be liable to the public body for any excess costs occasioned by the failure to pay the prevailing wage rate. All bid specifications shall list the specified prevailing wage rates for all crafts, classifications, or types of workers in the locality for each worker needed to be included in the contract.
   4.  If a public improvement requires the payment of prevailing wage rates, the contractor shall require any subcontractors engaged by the contractor on the public improvement to execute a written instrument that not less than the prevailing wage rates shall be paid to all workers performing work on the public improvement. The written instrument shall also contain a provision that if it is found that any of the subcontractor’s workers engaged in the public improvement have been paid at a wage rate less than the prevailing wage rate required by this chapter, the public body may terminate the subcontractor’s right to proceed with the work and the subcontractor and its sureties shall be liable to the public body for any excess costs occasioned by the failure to pay the prevailing wage rate. The written instrument shall have attached a list of the specified prevailing wage rates for all crafts, classifications, or types of workers in the locality for each worker needed to be included in the contract.
   5.  If a subcontract is let for a public improvement requiring the payment of the prevailing wage rate, the contractor to whom the contract is awarded shall insert into the subcontract and into the public improvement project specifications for each subcontract a written stipulation that not less than the prevailing wage rate shall be paid to all workers performing work under the subcontract. A subcontractor shall insert into each lower-tiered subcontract a stipulation that not less than the prevailing wage rate shall be paid to all workers performing work under the subcontract. The subcontract shall also contain a provision that if it is found that any of the subcontractor’s workers engaged in the public improvement have been paid at a wage rate less than the prevailing wage rate required by this chapter, the public body may terminate the subcontractor’s right to proceed with the work and the subcontractor and its sureties shall be liable to the public body for any excess costs occasioned by the failure to pay the prevailing wage rate. All bid specifications shall list the specified prevailing wage rates for all crafts, classifications, or types of workers in the locality for each worker needed to be included in the subcontract.
   6.  A contractor or subcontractor engaging in a public improvement shall submit a performance bond in an amount determined by the public body which bond shall include a provision that will guarantee the payment of the prevailing wage rates as required by the contract.
   7.  Before final payment is made by or on behalf of a public body of any sum or sums due on a public improvement, the treasurer of the public body or other officer or person charged with the custody and disbursement of the funds of the public body shall require the contractor and subcontractor to file a written statement with the public body, in a form satisfactory to the division, certifying to the amounts then due and owing from the contractor and subcontractor to any and all workers for wages due on account of the public improvement, setting forth the names of the persons whose wages are unpaid and the amount due to each respectively. The statement shall be verified by the oath of the contractor or subcontractor, as the case may be, that the contractor or subcontractor has read the statement certified by the contractor or subcontractor, knows the contents, and that the statement is true in accordance with the contractor’s or subcontractor’s own knowledge. However, this chapter shall not impair the right of a contractor to receive final payment from a public body because of the failure of a subcontractor to comply with provisions of this chapter. The treasurer of the public body or other officer or person charged with the custody and disbursement of the funds of the public body shall withhold the amount, if any, listed on the verified statement filed pursuant to this section for the benefit of the worker whose wages are unpaid as shown by the verified statement filed by the contractor or subcontractor, and the public body shall pay directly to any worker the amount shown by the statement to be due to the worker for the wages. Payment shall discharge the obligation of the contractor or subcontractor to the person receiving the payment to the extent of the amount of the payment.
   8.  The public body awarding a contract for a public improvement or otherwise undertaking a public improvement shall notify the commissioner in writing, on a form prescribed by the commissioner, if a contract subject to the provisions of this chapter has been awarded. The public body shall file the notification with the commissioner within thirty days after the contract is awarded or before commencement of the public improvement, and shall include a list of all first-tier subcontractors.
   Sec. 10.  NEW SECTION.  91F.8  Federal public improvements —— not applicable.
   The provisions of this chapter shall not be applicable to public improvements financed entirely by federal funds which require a prevailing wage rate determination by the United States department of labor. However, unless a federal provision applies, if a public improvement is financed in part by a public body and in part by federal funds, the higher of the prevailing wage rates shall prevail for the public improvement.
   Sec. 11.  NEW SECTION.  91F.9  Records required.
   1.  While participating in a public improvement, the contractor and each subcontractor shall do all of the following:
   a.  Make and keep, for a period of not less than three years, accurate records of all workers employed by the contractor or subcontractor on the public improvement. The records shall include each worker’s name, address, telephone number when available, social security number, trade classification, the hourly wages paid in each pay period, the number of hours worked each day, and the starting and ending times of work each day.
   b.  Submit weekly a certified payroll to the public body in charge of the public improvement. The certified payroll shall consist of a complete copy of the records identified in paragraph “a”. The certified payroll shall be accompanied by a statement signed by the contractor or subcontractor which avers that the records are true and accurate and the hourly wages paid to each worker are not less than the prevailing wage rate required by this chapter.
   2.  The public body in charge of the public improvement shall keep the records submitted in accordance with subsection 1, paragraph “b”, for a period of not less than three years. The records shall be considered public records and be made available in accordance with chapter 22. Personal information submitted in accordance with subsection 1, paragraph “a”, including names, addresses, social security numbers, telephone numbers, and other identifying information shall remain confidential and shall not be made public.
   3.  The contractor and each subcontractor shall make available for inspection the records identified in subsection 1, paragraph “a”, to the public body in charge of the public improvement, its officers and agents, and to the division.
   4.  For the purpose of verifying the accuracy of the records submitted pursuant to this section, the contractor and each subcontractor shall make its workers available at the site of the public improvement for interview by the public body in charge of the public improvement, its officers and agents, and the division.
   5.  Contractors and subcontractors performing work on public improvements subject to this chapter shall post the prevailing wage rates for each craft, classification, or type of workers involved in the public improvement in a prominent and easily accessible place at the site of the public improvement or at the place or places used by the contractor or subcontractor to pay workers their wages.
   Sec. 12.  NEW SECTION.  91F.10  Powers of commissioner.
   The commissioner shall do all of the following:
   1.  Inquire diligently about any complaint of a violation of this chapter, institute actions for penalties prescribed, and enforce generally the provisions of this chapter.
   2.  Sue for injunctive relief against the awarding of a contract, the undertaking of a public improvement, or the continuation of a public improvement when the prevailing wage rate requirements of this chapter have not been met.
   3.  Investigate and ascertain the wages of workers engaged in any public improvement in this state.
   4.  a.  Enter and inspect the place of business or employment of a contractor, subcontractor, or workers employed on a public improvement in this state, for the purpose of examining and inspecting books, registers, payrolls, and other records of a contractor or subcontractor that in any way relate to or have a bearing upon the question of wages, hours, and other conditions of employment of workers covered under this chapter.
   b.  Copy the books, registers, payrolls, and other records as the commissioner or the commissioner’s authorized representative deems necessary or appropriate.
   c.  Question the workers for the purpose of ascertaining whether the provisions of this chapter have been and are being complied with.
   d.  Administer oaths, take or cause to be taken depositions of witnesses, and require by subpoena the attendance and testimony of witnesses and the production of all books, registers, payrolls, and other evidence relative to the matter under investigation or hearing.
   5.  Require from a contractor or subcontractor full and correct statements in writing, including sworn statements, with respect to wages, hours, names, addresses, and other information pertaining to its workers and their employment, as the commissioner or the commissioner’s authorized representative may deem necessary or appropriate.
   6.  Require a contractor or subcontractor to file, within ten days of receipt of a request, any records enumerated in subsection 4, sworn as to their validity and accuracy as required by subsection 5. If the contractor or subcontractor fails to provide the requested records within ten days, the commissioner may direct, within fifteen days after the end of the ten-day period, that the fiscal or financial officer charged with the custody and disbursements of the funds of the public body, which contracted for construction of the public improvement or undertook the public improvement, to immediately withhold from payment to the contractor or subcontractor up to twenty-five percent of the amount to be paid to the contractor or subcontractor under the terms of the contract or written instrument under which the public improvement is being performed. The amount withheld shall be immediately released upon receipt by the public body of a notice from the commissioner indicating that the request for records as required by this section has been satisfied.
   7.  If a contractor or subcontractor fails to provide requested records in accordance with subsection 6 within ten days, direct, within fifteen days after the end of the ten-day period, the fiscal or financial officer charged with the custody and disbursements of the funds of the public body, which contracted for construction of the public improvement or undertook the public improvement, to pay directly to workers employed by the contractor or subcontractor from the amount withheld from the contractor or subcontractor pursuant to subsection 6 any prevailing wage rates found to be due and payable to the workers.
   8.  Contract with a person registered as a public accountant under chapter 542 to conduct an audit of a contractor, subcontractor, or public body.
   Sec. 13.  NEW SECTION.  91F.11  Notice of violations.
   1.  For purposes of this section:
   a.  “Accurate records” means the payroll records required to be submitted to the public body in charge of the public improvement by section 91F.9. “Accurate records” also means the hourly rate of contribution and costs paid for fringe benefits and whether the contributions and costs of the fringe benefits were paid into a fund or paid directly to the worker.
   b.  “Decision” means a determination by the division that a single violation of this chapter has occurred, warranting the commissioner to issue a notice of violation to a contractor or subcontractor.
   c.  “Notice of second violation” is a formal written notice issued by the division advising a contractor or subcontractor that a second or subsequent violation has occurred within three years from the date of the notice of a first violation.
   d.  “Notice of violation” means a formal written notice issued by the division to a contractor or subcontractor that the division has made a decision that the contractor or subcontractor has violated this chapter.
   e.  “Violation” means that a contractor or subcontractor has done one of the following:
   (1)  Failed or refused to pay the prevailing wage rate to one or more workers as required by this chapter.
   (2)  Failed to keep accurate records as required by this chapter.
   (3)  Failed to produce for the division accurate records or produced records not in compliance with this chapter.
   (4)  Refused to submit records or testimony to the division in response to a subpoena issued in accordance with this chapter.
   (5)  Refused to comply with the certified payroll provision of section 91F.9.
   (6)  Refused the division access, at any reasonable hour at a location within the state, to inspect the contractor’s or subcontractor’s records as required by this chapter.
   (7)  Failed to insert into each subcontract or lower-tiered subcontract and into the public improvement specifications for each subcontract or lower-tiered subcontract or provide a written instrument if no contract exists, a written stipulation that not less than the prevailing wage rate be paid as required by this chapter, and a statement that if it is found that a subcontractor’s workers engaged in the public improvement have been paid at a rate of wages less than the prevailing wage rate required to be paid by the contract, the public body shall terminate the subcontractor’s right to proceed with the work.
   (8)  Failed to obtain a bond in the proper amount that guarantees the payment of the prevailing wage rates required in the contract.
   (9)  Failed to post the prevailing wage rates as required by this chapter.
   2.  After receipt of a complaint or on the division’s initiative, the commissioner shall review the investigative file to determine whether a violation has occurred for which the contractor or subcontractor must be given notice. All information and observations made during an audit or investigation shall be considered and shall constitute the basis for the division’s decision that this chapter has been violated and that a notice of violation is required to be issued. The notice of violation shall identify the specific violation and the amount of moneys estimated due the division and in controversy based on reasons contained in the investigative file.
   3.  In making a decision that a contractor or subcontractor has failed to allow the commissioner access to accurate records, the commissioner shall rely on the information contained in the investigative file, the certified payroll records submitted to the public body in charge of the public improvement or any other information, and shall assess a separate violation for each day worked by each worker on the public improvement. Each decision of a separate violation shall be listed in the notice of violation.
   4.  In determining that this chapter has been violated and that the issuance of a notice of violation is required, the commissioner shall base the decision on one or any combination of the following reasons:
   a.  The severity of the violation, which includes the following:
   (1)  The amount of wages that are determined to be underpaid pursuant to this chapter.
   (2)  The activity or conduct complained of that violates the requirements of this chapter and was not merely a technical, nonsubstantive error. Examples of a technical error include but are not limited to a mathematical error, bookkeeping error, transposition of numbers, or computer or programming error.
   b.  The nature and duration of the present violation and the prior history of the contractor or subcontractor related to this history. The prior history considered shall not exceed seven years before the date of the notice of violation.
   c.  Whether the contractor or subcontractor submitted certified payroll records with the public body in charge of the public improvement; whether the contractor or subcontractor has kept payroll records and accurate records for three years; and whether the contractor or subcontractor produced certified payroll records in accordance with section 91F.9.
   d.  Whether the contractor or subcontractor has violated any other provision of this chapter.
   5.  The notices of the first, second, and subsequent violations shall be sent by restricted certified mail, addressed to the last known address of the contractor or subcontractor involved. The notices shall contain a reference to the specific provisions of this chapter alleged to have been violated, identify the particular public improvement involved, identify the conduct complained of, and identify whether the notice is a notice of a first, second, or subsequent violation, and include a contractor’s or subcontractor’s statement of liabilities.
   Sec. 14.  NEW SECTION.  91F.12  Violations —— remedies and penalties.
   1.  If the commissioner determines that a public body has divided a public improvement into more than one contract for the purpose of avoiding compliance with this chapter, the commissioner shall issue an order compelling compliance. In making a determination whether a public body has divided a public improvement into more than one contract for the purpose of avoiding compliance with this chapter, the commissioner shall consider all of the following:
   a.  The physical separation of the public improvement structures or work.
   b.  The timing of the work on the public improvement phases or structures.
   c.  The continuity of public improvement contractors and subcontractors working on public improvement parts or phases.
   d.  The manner in which the public body and the contractor and subcontractors administer and implement work on the public improvement.
   2.  A worker employed by the contractor or subcontractor who is paid less than the specified prevailing wage rate under this chapter shall have a private right of action for the difference between the amount so paid and the specified prevailing wage rate, together with costs and reasonable attorney fees as shall be allowed by the court.
   3.  The contractor or subcontractor shall additionally be liable to the division for fifty percent of the amount of underpayments and shall be additionally liable to the worker for punitive damages in an amount equal to five percent of the liability to the division for underpayments for each month following the date of payment during which underpayments remain unpaid, together with costs and reasonable attorney fees as shall be allowed by the court.
   4.  If a second or subsequent action to recover underpayments is brought against a contractor or subcontractor within a three-year period and the contractor or subcontractor is found liable for underpayments to a worker, the contractor or subcontractor shall be liable to the division for seventy-five percent of the amount of underpayments payable as a result of the second or subsequent action, additionally liable to the worker for ten percent of the amount of the liability to the division for underpayments for each month following the date of payment during which the underpayments remain unpaid, and further liable to the worker for triple the difference between the amount so paid to the worker and the specified prevailing wage rate required, together with costs and reasonable attorney fees as shall be allowed by the court. The three-year period begins to run from the date the contractor or subcontractor is determined liable for the first violation.
   5.  The commissioner and any interested party shall also have a right of action on behalf of a worker who has a right of action under this chapter. An action brought to recover the same shall be deemed to be a suit for wages, and all judgments entered in the action shall have the same force and effect as other judgments for wages. At the request of a worker employed by a contractor or subcontractor who is paid less than the prevailing wage rate required by this chapter, the commissioner may take an assignment of the wage claim in trust for the assigning worker and may bring any legal action necessary to collect the claim, and the contractor or subcontractor shall be required to pay the expenses of the division incurred in collecting the claim.
   6.  In circumstances where a worker may not be available to receive a payment or judgment, the payment due the worker shall revert to the division after one year elapses from the time payment was attempted to be made or judgment was rendered.
   7.  a.  It is a violation of this chapter to do any of the following:
   (1)  To request or demand, either before or after the worker is engaged in a public improvement, that a worker pay back, return, donate, contribute, or give any part or all of the worker’s wages, salary, or thing of value, to any person, upon the statement, representation, or understanding that failure to comply with the request or demand will prevent the worker from procuring or retaining employment.
   (2)  To directly or indirectly pay, request, or authorize any other person to violate this chapter.
   b.  This subsection does not apply to an agent or representative of a duly constituted labor organization acting in the collection of dues or assessments of the organization.
   8.  In addition to other penalties provided under this chapter, whoever induces a worker working on a public improvement subject to this chapter to give up or forego any part of the prevailing wage rates to which the worker is entitled under this chapter by threat not to employ or by threat of dismissal from employment is guilty of a serious misdemeanor. An agreement between the worker and the contractor or subcontractor to work for less than the specified prevailing wage rate shall not be a defense to criminal prosecution.
   9.  a.  A contract shall not be awarded by a public body to a contractor or subcontractor who, on two separate occasions within a three-year period, has been determined to have violated this chapter, or to any firm, corporation, partnership, or association in which the contractor or subcontractor has any interest until five years have elapsed from the date on which a final determination is rendered finding the contractor or subcontractor in violation of this chapter.
   b.  For the purposes of this subsection, “any interest” means an interest in the entity bidding or performing work on the public improvement, whether as an owner, partner, officer, manager, employee, agent, consultant, or representative. “Any interest” includes but is not limited to all instances where the barred contractor or subcontractor receives payments, whether cash or any other form of compensation, from any entity bidding or performing work on the public improvement, or enters into a contract with the entity bidding or performing work on the public improvement for services performed or to be performed under contract that have been or will be assigned or sublet, or for vehicles, tools, equipment, or supplies that have been or will be sold, rented, or leased during the period from the initiation of the barring proceedings until the end of the term of the barring period. “Any interest” does not include shares held in a publicly traded corporation if the shares were not received as compensation after the barring of an entity bidding or performing work on a public improvement.
   10.  If the division determines that a contractor or subcontractor has violated this chapter on two separate occasions within a three-year period, the division shall list on the department of workforce development’s internet site and keep on record the name of the contractor or subcontractor and give notice by restricted certified mail of the list to any public body requesting the list.
   11.  Upon a determination that a contractor or subcontractor has violated this chapter on two separate occasions within a three-year period, the division shall notify the violating contractor or subcontractor by restricted certified mail. The contractor or subcontractor has ten working days to request of the division a hearing before an administrative law judge on the alleged violation. Failure to respond within ten working days shall result in automatic and immediate barring of the violator from work as provided in subsection 9 and placement and publication of the violator’s name on the department of workforce development’s internet site as provided in subsection 10. If the contractor or subcontractor requests a hearing within ten working days by restricted certified mail, the department of inspections and appeals shall set a hearing before an administrative law judge on the alleged violation. The 2 shall take place no later than forty-five calendar days after the receipt by the division of the request for a hearing. An action by an administrative law judge constitutes final agency action and is subject to judicial review under section 17A.19.
   12.  The attorney general shall prosecute the cases identified in this section upon complaint by the commissioner or by any interested person. In any proceeding brought pursuant to this section, the commissioner shall be represented by the attorney general.
   13.  This section does not give reason or provide cause for an injunction to halt or delay any public improvement.
   Sec. 15.  NEW SECTION.  91F.13  Apprentices.
   This chapter shall not prevent the employment of apprentices upon public improvements. However, an apprentice employed on a public improvement must be registered with the United States department of labor’s office of apprenticeship under an apprenticeship program registered with that office, paid the proper wages specified in the standards of apprenticeship, and engaged only in the trade to which the apprentice is registered. If the apprentice is employed on a public improvement in a trade to which the apprentice is not registered with the United States department of labor’s office of apprenticeship, the apprentice shall be treated as any other worker under this chapter.
   Sec. 16.  IMPLEMENTATION OF ACT.  Section 25B.2, subsection 3, shall not apply to this Act.
   Sec. 17.  EFFECTIVE DATE.  This Act takes effect January 1, 2021.>
   2.  Title page, by striking lines 1 through 5 and inserting <requiring the payment of local prevailing wage rates to persons working on public improvements for public bodies, providing remedies and penalties, and including effective date provisions.>

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HUNTER of Polk