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House File 161 - IntroducedA Bill ForAn Act 1requiring the payment of local prevailing wage rates to
2persons working on public improvements for public bodies,
3providing remedies and penalties, and including effective
4date provisions.
5BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. Section 84A.5, subsection 4, Code 2021, is
2amended to read as follows:
34. The division of labor services is responsible for the
4administration of the laws of this state under chapters 88,
588A, 88B, 89, 89A, 89B, 90A, 91, 91A, 91C, 91D, 91E, 91F, 92,
6and 94A, and sections 73A.21 and 85.68. The executive head of
7the division is the labor commissioner, appointed pursuant to
8section 91.2.
9 Sec. 2. Section 91.4, subsection 2, Code 2021, is amended
10to read as follows:
112. The director of the department of workforce development,
12in consultation with the labor commissioner, shall, at the
13time provided by law, make an annual report to the governor
14setting forth in appropriate form the business and expense of
15the division of labor services for the preceding year, the
16number of remedial actions taken under chapter 89A, the number
17of disputes or violations processed by the division and the
18disposition of the disputes or violations, and other matters
19pertaining to the division which are of public interest,
20together with recommendations for change or amendment of the
21laws in this chapter and chapters 88, 88A, 88B, 89, 89A, 89B,
2290A, 91A, 91C, 91D, 91E, 91F, 92, and 94A, and section 85.68,
23and the recommendations, if any, shall be transmitted by the
24governor to the first general assembly in session after the
25report is filed.
26 Sec. 3. NEW SECTION. 91F.1 Short title.
27This chapter shall be known and may be cited as the “Public
28Improvement Quality Protection Act”.
29 Sec. 4. NEW SECTION. 91F.2 Public policy.
30It is in the public interest that public improvements
31are completed by the best means and highest quality of labor
32reasonably available, and that workers working on public
33improvements be compensated according to the real value of the
34services they perform. It is the policy of this state that the
35wages of workers working on public improvements should be at
-1-1least equal to the prevailing wage rates paid for similar work
2by responsible contractors in the community as a whole in order
3to accomplish all of the following:
41. Protect workers and their contractors and subcontractors
5from the effects of serious and unfair competition resulting
6from wage levels detrimental to efficiency and well-being.
72. Ensure that contractors compete with one another
8on the basis of the ability to perform work competently
9and efficiently while maintaining community-established
10compensation standards.
113. Recognize that local participation in public
12improvements and family wage income and benefits are essential
13to the protection of community standards.
144. Encourage training and education of workers to industry
15skills standards.
165. Encourage contractors and subcontractors to use funds
17allocated for employee fringe benefits for the actual purchase
18of those benefits.
19 Sec. 5. NEW SECTION. 91F.3 Definitions.
20As used in this chapter, unless the context otherwise
21requires:
221. “Commissioner” means the labor commissioner appointed
23pursuant to section 91.2.
242. “Contractor” or “subcontractor” means a person who
25undertakes, offers to undertake, purports to have the capacity
26to undertake, or submits a bid, individually or through others,
27to engage in a public improvement.
283. “Custom fabrication” means the fabrication of plumbing,
29heating, cooling, ventilation, architectural systems,
30structural systems, exhaust duct systems, or mechanical
31insulation.
324. “Division” means the division of labor of the department
33of workforce development.
345. a. “Fringe benefits” means the following for the
35provision or purchase of any of the benefits enumerated in
-2-1paragraph “b”:
2(1) The contribution irrevocably made by a contractor or
3subcontractor to a trustee or to a third person pursuant to a
4plan, fund, or program.
5(2) The costs to the contractor or subcontractor which
6may be reasonably anticipated in providing benefits to
7workers pursuant to an enforceable commitment to carry out a
8financially responsible plan or program, given in writing to
9the workers affected.
10b. (1) Medical or hospital care.
11(2) Pensions or annuities on retirement or death.
12(3) Supplemental unemployment benefits.
13(4) Life insurance.
14(5) Disability and sickness insurance.
15(6) Accident insurance for nonwork-related accidents.
16(7) Vacation or holiday pay.
17(8) Defraying costs of apprenticeship programs approved by
18and registered with the United States department of labor’s
19office of apprenticeship.
206. “Interested party” means any of the following:
21a. A contractor who submits a bid for the purpose of
22securing the award of a contract for a public improvement.
23b. A subcontractor of a contractor mentioned in a bid
24referred to in paragraph “a”.
25c. A worker employed by a contractor or subcontractor
26described in either paragraph “a” or “b”.
27d. A labor organization that represents workers engaged
28in the same craft or classification as workers employed by a
29contractor or subcontractor described in either paragraph “a”
30or “b” and that exists, in whole or in part, for the purpose
31of negotiating with employers concerning the wages, hours, or
32terms and conditions of employment of employees.
33e. A joint labor-management committee established pursuant
34to the federal Labor Management Cooperation Act of 1978, 29
35U.S.C.§175a.
-3- 17. “Locality” means a county of this state.
28. “Maintenance work” means the repair of existing public
3improvements when the size, type, or extent of the public
4improvement is not changed or increased.
59. “Prevailing wage rate” means the hourly wage plus
6fringe benefits that the commissioner determines prevails in
7accordance with this chapter, including all of the following:
8a. Apprentice ratios and the prevailing apprentice pay
9levels for each craft, classification, or type of worker which
10the commissioner determines prevails in accordance with section
1191F.5.
12b. A prevailing rate for overtime pay for work in excess
13of the normal prevailing workday and for weekend overtime pay
14for each craft, classification, or type of worker, including
15apprentices.
16c. Holiday pay for holidays that prevail in the locality in
17which the work is being performed.
1810. “Public body” means the state and any of its political
19subdivisions, including but not limited to a county, city,
20township, school district, state board of regents, and public
21utility. For the purposes of this chapter, “public utility”
22includes municipally owned utilities and municipally owned
23waterworks.
2411. a. “Public improvement” means any of the following that
25meets the criteria set out in paragraphs “b” and “c”:
26(1) Construction, alteration, reconstruction, repair,
27rehabilitation, refinishing, refurbishing, remodeling,
28renovation, custom fabricating, maintenance, landscaping,
29improving, moving, wrecking, painting, decorating, or
30demolishing of, or adding to or subtracting from any building,
31structure, highway, road, street, bridge, alley, sewer, ditch,
32sewage disposal plant, waterworks, parking facility, railroad,
33excavation or other structure, project, development, or
34improvement, or any part thereof undertaken by a public body,
35including any of the following related activities:
-4- 1(a) The erection of scaffolding or other structures or
2works.
3(b) The maintenance, repair, assembly, or disassembly of
4equipment.
5(c) The testing of materials.
6(d) The hauling of refuse from a site to an outside disposal
7location.
8(e) The cleaning of grounds or structures.
9(f) The addition to or fabrication into any structure,
10project, development, or improvement of any material or article
11of merchandise undertaken by a public body.
12(2) The preparation and removal of roadway construction
13zones, lane closures, flagging, or traffic diversions
14undertaken by a public body.
15(3) The installation, repair, maintenance, or calibration
16of monitoring equipment for underground storage tanks
17undertaken by a public body.
18(4) Work that is performed on any property or premises
19dedicated exclusively or nearly so to the completion of a
20public improvement, and transportation of supplies, material,
21and equipment to or from the property or premises undertaken
22by a public body.
23b. Work on the public improvement is performed under public
24supervision or direction, and the work is financed wholly or
25in part from public funds, or if at the time of commencement
26of the public improvement all of the following conditions with
27respect to the public improvement are met:
28(1) Not less than fifty-five percent of the structure is
29leased by a public body, or is subject to an agreement to be
30subsequently leased by a public body.
31(2) The portion of the structure that is leased or subject
32to an agreement to be subsequently leased by a public body
33measures more than twenty thousand square feet.
34c. The public improvement has an estimated total cost that
35exceeds twenty-five thousand dollars.
-5- 112. “Worker” means an individual who performs any
2labor or service for a contractor or subcontractor on a
3public improvement but does not include an individual when
4transporting a seller, supplier, manufacturer, or processor of
5materials or equipment. The individual is deemed an employee
6of a contractor or subcontractor unless all of the following
7apply:
8a. The individual provides labor or services free from the
9direction or control over the means and manner of providing the
10labor or services, subject only to the right of the person for
11whom the labor or services are provided to specify the desired
12results.
13b. The individual providing the labor or services is
14responsible for obtaining business registrations or licenses
15required by state law or local ordinance to provide the labor
16or services.
17c. The individual providing the labor or services furnishes
18the tools and equipment necessary to provide the labor or
19services.
20d. The individual providing the labor or services has the
21authority to hire and fire employees to perform the labor or
22services.
23e. Payment for the labor or services is made upon
24completion of the performance of specific portions of a public
25improvement, or is made on the basis of a periodic retainer.
26f. The individual providing the labor or services represents
27to the public that the labor or services are to be provided
28by an independently established business. An individual is
29engaged in an independently established business when four or
30more of the following circumstances exist:
31(1) Labor or services are primarily performed at a location
32separate from the individual’s residence or in a specified
33portion of the residence that is set aside for performing labor
34or services.
35(2) Commercial advertising or business cards are purchased
-6-1by the individual, or the individual is a member of a trade or
2professional association.
3(3) Telephone or electronic mail listings used by the
4individual for the labor or services are different from the
5individual’s personal listings.
6(4) Labor or services are performed only pursuant to a
7written contract.
8(5) Labor or services are performed for two or more persons
9or entities within a period of one year.
10(6) The individual assumes financial responsibility
11for errors and omissions in the performance of the labor or
12services as evidenced by insurance, performance bonds, and
13warranties relating to the labor or services provided.
14 Sec. 6. NEW SECTION. 91F.4 Administration — rules.
151. The commissioner and the division shall administer this
16chapter.
172. The commissioner shall adopt rules pursuant to chapter
1817A to administer this chapter.
19 Sec. 7. NEW SECTION. 91F.5 Determination of prevailing
20wages.
211. The commissioner shall determine annually, and publish
22pursuant to subsection 2, on the first business day of
23July, the prevailing wage rates by locality for each craft,
24classification, or type of worker needed to perform work on
25public improvements. The rates shall be conclusive for one
26year from the date of publication unless superseded within the
27one year by a later publication of the commissioner, or for a
28longer period as provided in subsection 5.
292. The commissioner shall announce all prevailing wage rate
30determinations by locality and give notice by posting them
31on the portion of the department of workforce development’s
32internet site related to the division. A printed version of
33the prevailing wage rates for the state shall be available to
34the public upon request to the division.
353. The public body awarding any contract for a public
-7-1improvement, or otherwise undertaking any public improvement,
2shall obtain from the internet site the prevailing wage rate
3in the locality in which work on the public improvement is
4to be performed for each craft, classification, or type of
5worker needed to perform work on the public improvement.
6After a public improvement contract is awarded, or a public
7improvement is otherwise undertaken, the prevailing wage
8rate published by the commissioner and stated in the public
9body’s public improvement procurement documents shall remain
10in effect throughout the duration of the public improvement
11unless superseded by a later determination and publication by
12the commissioner, or unless multiyear prevailing wage rates
13have been published by the commissioner at the time the public
14improvement procurement documents were released.
154. a. In determining the annual prevailing wage rate
16for any craft, classification, or type of worker, the
17commissioner shall ascertain and consider the applicable
18wage rates and fringe benefits established by collective
19bargaining agreements, the prevailing wage rate determinations
20that may exist for federal public improvements within the
21locality, and other data obtained by the department during any
22prevailing wage rate survey of contractors who participate in
23an apprenticeship program approved by and registered with the
24United States department of labor’s office of apprenticeship,
25who provide health insurance and retirement benefits for their
26workers, and who are registered with the division. Based
27upon these considerations, the commissioner shall calculate
28the prevailing wage rates based on the wage rate plus fringe
29benefits most often occurring for each craft, classification,
30or other type of worker within each locality.
31b. The minimum annual prevailing wage rate determination
32established by the department shall not be lower than the
33prevailing wage rate determination that may exist for federal
34public improvements within the locality and in the nearest
35labor market area.
-8- 1c. None of the fringe benefits enumerated in this chapter
2may be considered in the determination of prevailing wage
3rates if the contractor or subcontractor is required by other
4federal, state, or local law to provide such fringe benefits.
55. If the commissioner determines that the prevailing
6wage rate for any craft, classification, or type of worker
7is the rate established by a collective bargaining agreement
8applicable in the locality, the commissioner may adopt that
9rate by reference and that determination shall be effective
10for the life of the agreement or until the commissioner adopts
11another rate.
126. a. At any time within fifteen days after the division
13has published on the department of workforce development’s
14internet site the annual prevailing wage rates for each
15classification, craft, or other type of worker in the locality,
16any interested person affected may object to the determination
17or the part of the determination as the interested person
18may deem objectionable by filing a written notice with the
19commissioner by restricted certified mail as defined in
20section 618.15. When objecting to a prevailing wage rate
21determination, the interested person shall submit, as a
22part of the written notice, the prevailing wage rate the
23interested person believes to be the correct prevailing wage
24rate determination, stating the specific grounds to support
25that position. Upon receipt of the notice of objection, the
26commissioner shall reconsider the determination and shall
27affirm or modify the determination and reply in writing by
28restricted certified mail to the interested person within
29fifteen days from the date of the receipt of the notice of
30objection. Any modification to the prevailing wage rate
31determination shall be effective on the date the modification
32is published by the commissioner.
33b. If the commissioner declines to modify the determination,
34within ten days upon receiving receipt of the commissioner’s
35decision, the interested person affected may submit in writing
-9-1the objection to the division by restricted certified mail,
2stating the specified grounds of the objection. The department
3of inspections and appeals shall be notified of the objection
4and set a date for a hearing before an administrative law judge
5on the objection, after giving notice by restricted certified
6mail to the interested person and the division at least ten
7days before the date of the hearing of the time and place of
8the hearing. The hearing shall be held within forty-five days
9after the objection is filed, and shall not be postponed or
10reset for a later date except upon the consent, in writing, of
11the interested person and the division.
127. The party requesting a hearing shall have the burden of
13establishing that the annual prevailing wage rate determination
14for that locality was not determined in accordance with this
15chapter. If the party requesting a hearing under this section
16objects to the commissioner’s failure to include a craft,
17classification, or type of worker within the annual prevailing
18wage rate determination in the locality, the objector shall
19have the burden of establishing that there is no existing
20prevailing wage rate classification for the particular craft,
21classification, or type of worker in any of the localities
22under consideration.
238. The administrative law judge may in the administrative
24law judge’s discretion hear each written objection filed
25separately or consolidate for hearing any one or more written
26objections filed with the division. At the hearing, the
27division shall introduce into evidence the investigation it
28instituted which formed the basis of its determination, and the
29division or any interested objectors may introduce evidence
30that is material to the determination. The administrative
31law judge shall rule upon each written objection and make a
32final determination, as the administrative law judge believes
33the evidence warrants, and promptly serve a copy of the final
34determination by personal service or restricted certified mail
35on all parties to the proceedings. The administrative law
-10-1judge shall render a final determination within thirty days
2after the conclusion of the hearing.
39. If proceedings to review judicially the final
4determination of the administrative law judge are not
5instituted as provided in this section, the determination
6shall be final and binding. The provisions of section 17A.19
7shall apply to and govern all proceedings. Appeals from all
8final orders and judgments entered by the court in review of
9the final determination of the administrative law judge may be
10taken by any party to the action. In all reviews or appeals
11under this chapter, the attorney general shall represent the
12division and defend its determination.
1310. This section does not give reason or provide cause for
14an injunction to halt or delay any public improvement.
15 Sec. 8. NEW SECTION. 91F.6 Payment of prevailing wages
16required.
171. Contractors and subcontractors engaged in a public
18improvement shall pay not less than the current specified
19prevailing wage rates to all of their workers engaged in the
20public improvement. However, this chapter does not prohibit
21the payment of more than the prevailing wage rate to any
22workers engaged in a public improvement.
232. All contractors and subcontractors required to pay the
24prevailing wage rate under this chapter shall pay the wages
25in legal tender, without any deduction for food, sleeping
26accommodations, transportation, use of tools or safety
27equipment, vehicle or equipment rental, or any other thing of
28any kind or description.
29 Sec. 9. NEW SECTION. 91F.7 Requirements for public
30improvements.
311. The public body awarding a contract for a public
32improvement or otherwise undertaking a public improvement shall
33specify in the call for bids for the contract that this chapter
34applies to the public improvement.
352. If a public improvement requires the payment of
-11-1prevailing wage rates, the public body shall require the
2contractor to execute a written instrument that not less
3than the prevailing wage rate shall be paid to all workers
4performing work on the public improvement. The written
5instrument shall also contain a provision that if it is found
6that any of the contractor’s workers engaged in the public
7improvement have been paid at a wage rate less than the
8prevailing wage rate required by this chapter, the public body
9may terminate the contractor’s right to proceed with the work
10and the contractor and its sureties shall be liable to the
11public body for any excess costs occasioned by the failure to
12pay the prevailing wage rate. The written instrument shall
13have attached a list of the specified prevailing wage rates
14for all crafts, classifications, or types of workers in the
15locality for each worker needed to be included in the contract
16for the public improvement.
173. If a contract is let for a public improvement requiring
18the payment of prevailing wage rates, the public body
19awarding the contract shall cause to be inserted in the public
20improvement specifications and contract a stipulation that
21not less than the prevailing wage rate shall be paid to all
22workers performing work under the contract. The contract
23shall also contain a provision to the effect that if it is
24found that any of the contractor’s workers engaged in the
25public improvement have been paid at a wage rate less than the
26prevailing wage rate required by this chapter, the public body
27may terminate the contractor’s right to proceed with the work
28and the contractor and its sureties shall be liable to the
29public body for any excess costs occasioned by the failure to
30pay the prevailing wage rate. All bid specifications shall
31list the specified prevailing wage rates for all crafts,
32classifications, or types of workers in the locality for each
33worker needed to be included in the contract.
344. If a public improvement requires the payment of
35prevailing wage rates, the contractor shall require any
-12-1subcontractors engaged by the contractor on the public
2improvement to execute a written instrument that not less
3than the prevailing wage rates shall be paid to all workers
4performing work on the public improvement. The written
5instrument shall also contain a provision that if it is
6found that any of the subcontractor’s workers engaged in the
7public improvement have been paid at a wage rate less than the
8prevailing wage rate required by this chapter, the public body
9may terminate the subcontractor’s right to proceed with the
10work and the subcontractor and its sureties shall be liable to
11the public body for any excess costs occasioned by the failure
12to pay the prevailing wage rate. The written instrument shall
13have attached a list of the specified prevailing wage rates
14for all crafts, classifications, or types of workers in the
15locality for each worker needed to be included in the contract.
165. If a subcontract is let for a public improvement
17requiring the payment of the prevailing wage rate, the
18contractor to whom the contract is awarded shall insert
19into the subcontract and into the public improvement project
20specifications for each subcontract a written stipulation that
21not less than the prevailing wage rate shall be paid to all
22workers performing work under the subcontract. A subcontractor
23shall insert into each lower-tiered subcontract a stipulation
24that not less than the prevailing wage rate shall be paid
25to all workers performing work under the subcontract. The
26subcontract shall also contain a provision that if it is
27found that any of the subcontractor’s workers engaged in the
28public improvement have been paid at a wage rate less than the
29prevailing wage rate required by this chapter, the public body
30may terminate the subcontractor’s right to proceed with the
31work and the subcontractor and its sureties shall be liable to
32the public body for any excess costs occasioned by the failure
33to pay the prevailing wage rate. All bid specifications shall
34list the specified prevailing wage rates for all crafts,
35classifications, or types of workers in the locality for each
-13-1worker needed to be included in the subcontract.
26. A contractor or subcontractor engaging in a public
3improvement shall submit a performance bond in an amount
4determined by the public body which bond shall include a
5provision that will guarantee the payment of the prevailing
6wage rates as required by the contract.
77. Before final payment is made by or on behalf of a public
8body of any sum or sums due on a public improvement, the
9treasurer of the public body or other officer or person charged
10with the custody and disbursement of the funds of the public
11body shall require the contractor and subcontractor to file a
12written statement with the public body, in a form satisfactory
13to the division, certifying to the amounts then due and owing
14from the contractor and subcontractor to any and all workers
15for wages due on account of the public improvement, setting
16forth the names of the persons whose wages are unpaid and
17the amount due to each respectively. The statement shall be
18verified by the oath of the contractor or subcontractor, as the
19case may be, that the contractor or subcontractor has read the
20statement certified by the contractor or subcontractor, knows
21the contents, and that the statement is true in accordance with
22the contractor’s or subcontractor’s own knowledge. However,
23this chapter shall not impair the right of a contractor to
24receive final payment from a public body because of the failure
25of a subcontractor to comply with provisions of this chapter.
26The treasurer of the public body or other officer or person
27charged with the custody and disbursement of the funds of the
28public body shall withhold the amount, if any, listed on the
29verified statement filed pursuant to this section for the
30benefit of the worker whose wages are unpaid as shown by the
31verified statement filed by the contractor or subcontractor,
32and the public body shall pay directly to any worker the amount
33shown by the statement to be due to the worker for the wages.
34Payment shall discharge the obligation of the contractor or
35subcontractor to the person receiving the payment to the extent
-14-1of the amount of the payment.
28. The public body awarding a contract for a public
3improvement or otherwise undertaking a public improvement shall
4notify the commissioner in writing, on a form prescribed by
5the commissioner, if a contract subject to the provisions of
6this chapter has been awarded. The public body shall file
7the notification with the commissioner within thirty days
8after the contract is awarded or before commencement of the
9public improvement, and shall include a list of all first-tier
10subcontractors.
11 Sec. 10. NEW SECTION. 91F.8 Federal public improvements
12— not applicable.
13The provisions of this chapter shall not be applicable
14to public improvements financed entirely by federal funds
15which require a prevailing wage rate determination by the
16United States department of labor. However, unless a federal
17provision applies, if a public improvement is financed in part
18by a public body and in part by federal funds, the higher of the
19prevailing wage rates shall prevail for the public improvement.
20 Sec. 11. NEW SECTION. 91F.9 Records required.
211. While participating in a public improvement, the
22contractor and each subcontractor shall do all of the
23following:
24a. Make and keep, for a period of not less than three years,
25accurate records of all workers employed by the contractor or
26subcontractor on the public improvement. The records shall
27include each worker’s name, address, telephone number when
28available, social security number, trade classification, the
29hourly wages paid in each pay period, the number of hours
30worked each day, and the starting and ending times of work each
31day.
32b. Submit weekly a certified payroll to the public body
33in charge of the public improvement. The certified payroll
34shall consist of a complete copy of the records identified in
35paragraph “a”. The certified payroll shall be accompanied by a
-15-1statement signed by the contractor or subcontractor which avers
2that the records are true and accurate and the hourly wages
3paid to each worker are not less than the prevailing wage rate
4required by this chapter.
52. The public body in charge of the public improvement
6shall keep the records submitted in accordance with subsection
71, paragraph “b”, for a period of not less than three years.
8The records shall be considered public records and be made
9available in accordance with chapter 22. Personal information
10submitted in accordance with subsection 1, paragraph “a”,
11including names, addresses, social security numbers, telephone
12numbers, and other identifying information shall remain
13confidential and shall not be made public.
143. The contractor and each subcontractor shall make
15available for inspection the records identified in subsection
161, paragraph “a”, to the public body in charge of the public
17improvement, its officers and agents, and to the division.
184. For the purpose of verifying the accuracy of the records
19submitted pursuant to this section, the contractor and each
20subcontractor shall make its workers available at the site of
21the public improvement for interview by the public body in
22charge of the public improvement, its officers and agents, and
23the division.
245. Contractors and subcontractors performing work on public
25improvements subject to this chapter shall post the prevailing
26wage rates for each craft, classification, or type of workers
27involved in the public improvement in a prominent and easily
28accessible place at the site of the public improvement or at
29the place or places used by the contractor or subcontractor to
30pay workers their wages.
31 Sec. 12. NEW SECTION. 91F.10 Powers of commissioner.
32The commissioner shall do all of the following:
331. Inquire diligently about any complaint of a violation of
34this chapter, institute actions for penalties prescribed, and
35enforce generally the provisions of this chapter.
-16- 12. Sue for injunctive relief against the awarding of a
2contract, the undertaking of a public improvement, or the
3continuation of a public improvement when the prevailing wage
4rate requirements of this chapter have not been met.
53. Investigate and ascertain the wages of workers engaged in
6any public improvement in this state.
74. a. Enter and inspect the place of business or employment
8of a contractor, subcontractor, or workers employed on a public
9improvement in this state, for the purpose of examining and
10inspecting books, registers, payrolls, and other records of a
11contractor or subcontractor that in any way relate to or have a
12bearing upon the question of wages, hours, and other conditions
13of employment of workers covered under this chapter.
14b. Copy the books, registers, payrolls, and other
15records as the commissioner or the commissioner’s authorized
16representative deems necessary or appropriate.
17c. Question the workers for the purpose of ascertaining
18whether the provisions of this chapter have been and are being
19complied with.
20d. Administer oaths, take or cause to be taken depositions
21of witnesses, and require by subpoena the attendance and
22testimony of witnesses and the production of all books,
23registers, payrolls, and other evidence relative to the matter
24under investigation or hearing.
255. Require from a contractor or subcontractor full and
26correct statements in writing, including sworn statements,
27with respect to wages, hours, names, addresses, and other
28information pertaining to its workers and their employment,
29as the commissioner or the commissioner’s authorized
30representative may deem necessary or appropriate.
316. Require a contractor or subcontractor to file, within
32ten days of receipt of a request, any records enumerated in
33subsection 4, sworn as to their validity and accuracy as
34required by subsection 5. If the contractor or subcontractor
35fails to provide the requested records within ten days, the
-17-1commissioner may direct, within fifteen days after the end
2of the ten-day period, that the fiscal or financial officer
3charged with the custody and disbursements of the funds of the
4public body, which contracted for construction of the public
5improvement or undertook the public improvement, to immediately
6withhold from payment to the contractor or subcontractor
7up to twenty-five percent of the amount to be paid to the
8contractor or subcontractor under the terms of the contract
9or written instrument under which the public improvement is
10being performed. The amount withheld shall be immediately
11released upon receipt by the public body of a notice from
12the commissioner indicating that the request for records as
13required by this section has been satisfied.
147. If a contractor or subcontractor fails to provide
15requested records in accordance with subsection 6 within ten
16days, direct, within fifteen days after the end of the ten-day
17period, the fiscal or financial officer charged with the
18custody and disbursements of the funds of the public body,
19which contracted for construction of the public improvement or
20undertook the public improvement, to pay directly to workers
21employed by the contractor or subcontractor from the amount
22withheld from the contractor or subcontractor pursuant to
23subsection 6 any prevailing wage rates found to be due and
24payable to the workers.
258. Contract with a person registered as a public accountant
26under chapter 542 to conduct an audit of a contractor,
27subcontractor, or public body.
28 Sec. 13. NEW SECTION. 91F.11 Notice of violations.
291. For purposes of this section:
30a. “Accurate records” means the payroll records required
31to be submitted to the public body in charge of the public
32improvement by section 91F.9. “Accurate records” also means the
33hourly rate of contribution and costs paid for fringe benefits
34and whether the contributions and costs of the fringe benefits
35were paid into a fund or paid directly to the worker.
-18- 1b. “Decision” means a determination by the division that a
2single violation of this chapter has occurred, warranting the
3commissioner to issue a notice of violation to a contractor or
4subcontractor.
5c. “Notice of second violation” is a formal written notice
6issued by the division advising a contractor or subcontractor
7that a second or subsequent violation has occurred within three
8years from the date of the notice of a first violation.
9d. “Notice of violation” means a formal written notice
10issued by the division to a contractor or subcontractor
11that the division has made a decision that the contractor or
12subcontractor has violated this chapter.
13e. “Violation” means that a contractor or subcontractor has
14done one of the following:
15(1) Failed or refused to pay the prevailing wage rate to one
16or more workers as required by this chapter.
17(2) Failed to keep accurate records as required by this
18chapter.
19(3) Failed to produce for the division accurate records or
20produced records not in compliance with this chapter.
21(4) Refused to submit records or testimony to the division
22in response to a subpoena issued in accordance with this
23chapter.
24(5) Refused to comply with the certified payroll provision
25of section 91F.9.
26(6) Refused the division access, at any reasonable hour at
27a location within the state, to inspect the contractor’s or
28subcontractor’s records as required by this chapter.
29(7) Failed to insert into each subcontract or lower-tiered
30subcontract and into the public improvement specifications
31for each subcontract or lower-tiered subcontract or provide a
32written instrument if no contract exists, a written stipulation
33that not less than the prevailing wage rate be paid as required
34by this chapter, and a statement that if it is found that a
35subcontractor’s workers engaged in the public improvement have
-19-1been paid at a rate of wages less than the prevailing wage rate
2required to be paid by the contract, the public body shall
3terminate the subcontractor’s right to proceed with the work.
4(8) Failed to obtain a bond in the proper amount that
5guarantees the payment of the prevailing wage rates required in
6the contract.
7(9) Failed to post the prevailing wage rates as required by
8this chapter.
92. After receipt of a complaint or on the division’s
10initiative, the commissioner shall review the investigative
11file to determine whether a violation has occurred for
12which the contractor or subcontractor must be given notice.
13All information and observations made during an audit or
14investigation shall be considered and shall constitute the
15basis for the division’s decision that this chapter has
16been violated and that a notice of violation is required
17to be issued. The notice of violation shall identify the
18specific violation and the amount of moneys estimated due the
19division and in controversy based on reasons contained in the
20investigative file.
213. In making a decision that a contractor or subcontractor
22has failed to allow the commissioner access to accurate
23records, the commissioner shall rely on the information
24contained in the investigative file, the certified payroll
25records submitted to the public body in charge of the public
26improvement or any other information, and shall assess a
27separate violation for each day worked by each worker on the
28public improvement. Each decision of a separate violation
29shall be listed in the notice of violation.
304. In determining that this chapter has been violated and
31that the issuance of a notice of violation is required, the
32commissioner shall base the decision on one or any combination
33of the following reasons:
34a. The severity of the violation, which includes the
35following:
-20- 1(1) The amount of wages that are determined to be underpaid
2pursuant to this chapter.
3(2) The activity or conduct complained of that violates the
4requirements of this chapter and was not merely a technical,
5nonsubstantive error. Examples of a technical error include
6but are not limited to a mathematical error, bookkeeping error,
7transposition of numbers, or computer or programming error.
8b. The nature and duration of the present violation and the
9prior history of the contractor or subcontractor related to
10this history. The prior history considered shall not exceed
11seven years before the date of the notice of violation.
12c. Whether the contractor or subcontractor submitted
13certified payroll records with the public body in charge of the
14public improvement; whether the contractor or subcontractor
15has kept payroll records and accurate records for three years;
16and whether the contractor or subcontractor produced certified
17payroll records in accordance with section 91F.9.
18d. Whether the contractor or subcontractor has violated any
19other provision of this chapter.
205. The notices of the first, second, and subsequent
21violations shall be sent by restricted certified mail,
22addressed to the last known address of the contractor or
23subcontractor involved. The notices shall contain a reference
24to the specific provisions of this chapter alleged to have been
25violated, identify the particular public improvement involved,
26identify the conduct complained of, and identify whether the
27notice is a notice of a first, second, or subsequent violation,
28and include a contractor’s or subcontractor’s statement of
29liabilities.
30 Sec. 14. NEW SECTION. 91F.12 Violations — remedies and
31penalties.
321. If the commissioner determines that a public body has
33divided a public improvement into more than one contract for
34the purpose of avoiding compliance with this chapter, the
35commissioner shall issue an order compelling compliance. In
-21-1making a determination whether a public body has divided a
2public improvement into more than one contract for the purpose
3of avoiding compliance with this chapter, the commissioner
4shall consider all of the following:
5a. The physical separation of the public improvement
6structures or work.
7b. The timing of the work on the public improvement phases
8or structures.
9c. The continuity of public improvement contractors and
10subcontractors working on public improvement parts or phases.
11d. The manner in which the public body and the contractor
12and subcontractors administer and implement work on the public
13improvement.
142. A worker employed by the contractor or subcontractor who
15is paid less than the specified prevailing wage rate under this
16chapter shall have a private right of action for the difference
17between the amount so paid and the specified prevailing wage
18rate, together with costs and reasonable attorney fees as shall
19be allowed by the court.
203. The contractor or subcontractor shall additionally be
21liable to the division for fifty percent of the amount of
22underpayments and shall be additionally liable to the worker
23for punitive damages in an amount equal to five percent of the
24liability to the division for underpayments for each month
25following the date of payment during which underpayments remain
26unpaid, together with costs and reasonable attorney fees as
27shall be allowed by the court.
284. If a second or subsequent action to recover underpayments
29is brought against a contractor or subcontractor within a
30three-year period and the contractor or subcontractor is
31found liable for underpayments to a worker, the contractor or
32subcontractor shall be liable to the division for seventy-five
33percent of the amount of underpayments payable as a result of
34the second or subsequent action, additionally liable to the
35worker for ten percent of the amount of the liability to the
-22-1division for underpayments for each month following the date
2of payment during which the underpayments remain unpaid, and
3further liable to the worker for triple the difference between
4the amount so paid to the worker and the specified prevailing
5wage rate required, together with costs and reasonable attorney
6fees as shall be allowed by the court. The three-year period
7begins to run from the date the contractor or subcontractor is
8determined liable for the first violation.
95. The commissioner and any interested party shall also
10have a right of action on behalf of a worker who has a right of
11action under this chapter. An action brought to recover the
12same shall be deemed to be a suit for wages, and all judgments
13entered in the action shall have the same force and effect as
14other judgments for wages. At the request of a worker employed
15by a contractor or subcontractor who is paid less than the
16prevailing wage rate required by this chapter, the commissioner
17may take an assignment of the wage claim in trust for the
18assigning worker and may bring any legal action necessary to
19collect the claim, and the contractor or subcontractor shall
20be required to pay the expenses of the division incurred in
21collecting the claim.
226. In circumstances where a worker may not be available to
23receive a payment or judgment, the payment due the worker shall
24revert to the division after one year elapses from the time
25payment was attempted to be made or judgment was rendered.
267. a. It is a violation of this chapter to do any of the
27following:
28(1) To request or demand, either before or after the worker
29is engaged in a public improvement, that a worker pay back,
30return, donate, contribute, or give any part or all of the
31worker’s wages, salary, or thing of value, to any person, upon
32the statement, representation, or understanding that failure to
33comply with the request or demand will prevent the worker from
34procuring or retaining employment.
35(2) To directly or indirectly pay, request, or authorize any
-23-1other person to violate this chapter.
2b. This subsection does not apply to an agent or
3representative of a duly constituted labor organization acting
4in the collection of dues or assessments of the organization.
58. In addition to other penalties provided under this
6chapter, whoever induces a worker working on a public
7improvement subject to this chapter to give up or forego
8any part of the prevailing wage rates to which the worker
9is entitled under this chapter by threat not to employ
10or by threat of dismissal from employment is guilty of a
11serious misdemeanor. An agreement between the worker and the
12contractor or subcontractor to work for less than the specified
13prevailing wage rate shall not be a defense to criminal
14prosecution.
159. a. A contract shall not be awarded by a public
16body to a contractor or subcontractor who, on two separate
17occasions within a three-year period, has been determined
18to have violated this chapter, or to any firm, corporation,
19partnership, or association in which the contractor or
20subcontractor has any interest until five years have elapsed
21from the date on which a final determination is rendered
22finding the contractor or subcontractor in violation of this
23chapter.
24b. For the purposes of this subsection, “any interest” means
25an interest in the entity bidding or performing work on the
26public improvement, whether as an owner, partner, officer,
27manager, employee, agent, consultant, or representative. “Any
28interest” includes but is not limited to all instances where the
29barred contractor or subcontractor receives payments, whether
30cash or any other form of compensation, from any entity bidding
31or performing work on the public improvement, or enters into
32a contract with the entity bidding or performing work on the
33public improvement for services performed or to be performed
34under contract that have been or will be assigned or sublet,
35or for vehicles, tools, equipment, or supplies that have been
-24-1or will be sold, rented, or leased during the period from the
2initiation of the barring proceedings until the end of the term
3of the barring period. “Any interest” does not include shares
4held in a publicly traded corporation if the shares were not
5received as compensation after the barring of an entity bidding
6or performing work on a public improvement.
710. If the division determines that a contractor or
8subcontractor has violated this chapter on two separate
9occasions within a three-year period, the division shall list
10on the department of workforce development’s internet site and
11keep on record the name of the contractor or subcontractor and
12give notice by restricted certified mail of the list to any
13public body requesting the list.
1411. Upon a determination that a contractor or subcontractor
15has violated this chapter on two separate occasions within a
16three-year period, the division shall notify the violating
17contractor or subcontractor by restricted certified mail. The
18contractor or subcontractor has ten working days to request of
19the division a hearing before an administrative law judge on
20the alleged violation. Failure to respond within ten working
21days shall result in automatic and immediate barring of the
22violator from work as provided in subsection 9 and placement
23and publication of the violator’s name on the department of
24workforce development’s internet site as provided in subsection
2510. If the contractor or subcontractor requests a hearing
26within ten working days by restricted certified mail, the
27department of inspections and appeals shall set a hearing
28before an administrative law judge on the alleged violation.
29The hearing shall take place no later than forty-five calendar
30days after the receipt by the division of the request for a
31hearing. An action by an administrative law judge constitutes
32final agency action and is subject to judicial review under
33section 17A.19.
3412. The attorney general shall prosecute the cases
35identified in this section upon complaint by the commissioner
-25-1or by any interested person. In any proceeding brought
2pursuant to this section, the commissioner shall be represented
3by the attorney general.
413. This section does not give reason or provide cause for
5an injunction to halt or delay any public improvement.
6 Sec. 15. NEW SECTION. 91F.13 Apprentices.
7This chapter shall not prevent the employment of apprentices
8upon public improvements. However, an apprentice employed
9on a public improvement must be registered with the United
10States department of labor’s office of apprenticeship under
11an apprenticeship program registered with that office, paid
12the proper wages specified in the standards of apprenticeship,
13and engaged only in the trade to which the apprentice is
14registered. If the apprentice is employed on a public
15improvement in a trade to which the apprentice is not
16registered with the United States department of labor’s office
17of apprenticeship, the apprentice shall be treated as any other
18worker under this chapter.
19 Sec. 16. IMPLEMENTATION OF ACT. Section 25B.2, subsection
203, shall not apply to this Act.
21 Sec. 17. EFFECTIVE DATE. This Act takes effect January 1,
222022.
23EXPLANATION
24The inclusion of this explanation does not constitute agreement with
25the explanation’s substance by the members of the general assembly.
26This bill requires a contractor to pay workers the same
27hourly wage plus fringe benefits for a public improvement
28costing more than $25,000 as prevails in the locality of the
29public improvement. The bill allows the per-hour wage rate to
30be based on what is normally paid in the area by contractors
31for similar projects, and to be adjusted on a yearly basis by
32the department of workforce development.
33The wage rates that the workers must be paid shall also
34include benefits such as medical care, life insurance, overtime
35pay, and vacation and holiday pay. The bill applies to any
-26-1public improvement that receives money from a public body and
2includes most types of public improvements from construction to
3road maintenance to painting to hauling.
4The labor commissioner determines the wage rates for
5specific geographical areas and for specific crafts,
6classifications, and types of workers. This information must
7be posted on the department of workforce development’s internet
8site. In determining what the wage rate for a worker is, the
9commissioner may consult collective bargaining agreements, wage
10rate determinations for federal projects in the same area, and
11other information the department may receive from contractors
12who participate in an apprenticeship program approved by the
13federal office of apprenticeship.
14Any person affected by the wage rates has 15 days after the
15department of workforce development has posted the wage rates
16on its internet site to object in writing, stating the specific
17reason for the objection, to the labor commissioner. The
18commissioner must reconsider the determination being objected
19to, and either affirm or modify it within 15 days of receiving
20the objection.
21If the commissioner declines to modify the determination,
22within 10 days, the person affected may submit an objection in
23writing to the division of labor services, stating the specific
24reasons for the objection. A hearing must be set by the
25department of inspections and appeals before an administrative
26law judge within 45 days after the objection is filed. The
27person who filed the objection must show the administrative
28law judge that the wage rate was somehow made in error. The
29division is required to show how it determined the wage
30rate. The administrative law judge must make a decision about
31the wage rate within 30 days and it is considered a final
32determination.
33The bill requires that contractors and subcontractors not
34pay the workers less than the established wage rate but does
35not prohibit them from paying the workers more than the wage
-27-1rate. The wage rate must be paid without any deductions
2such as for food, sleeping quarters, use of tools, or safety
3equipment.
4The bill also requires the public body to monitor the
5contractors and subcontractors to ensure that the wage rate
6is paid. A call for bids must state that the wage rate must
7be included in the bids for the public improvement. All
8bids shall list the specific wage rates for each craft,
9classification, and type of worker needed for the public
10improvement. All contractors and subcontractors are required
11to sign a contract that states they will pay workers the wage
12rate determined by the division. If the contractors and
13subcontractors are found to not be paying the wage rate, the
14contract states that the contractor’s or subcontractor’s right
15to work on the public improvement and get paid for work already
16done may be terminated.
17Before the contractor or subcontractor receives the final
18payment for the public improvement, the public body overseeing
19the public improvement must certify the payments include proper
20amounts due the workers, and the contractor or subcontractor
21must swear under oath that the records are accurate.
22The bill does not apply to public improvement projects
23funded by the federal government that require federal
24prevailing wage rates. However, unless a federal provision
25applies, if a public improvement project is financed by both a
26state public body and the federal government, then the higher
27of the applicable wage rates shall be paid to the workers.
28The bill also requires that contractors and subcontractors
29keep detailed records for at least three years about the
30workers, the rates paid, and the hours worked for each
31public improvement. The records are public records and must
32be available for inspection. However, workers’ personal
33information is not available to the public for inspection.
34During the public improvement, a contractor or subcontractor
35must present a certified weekly payroll to demonstrate that
-28-1the correct and full wage rate is being paid to workers. The
2contractors and subcontractors must make all workers available
3on-site to officials for interviews so that the records’
4accuracy can be checked. Contractors and subcontractors must
5also post the wage rates for each craft, classification, and
6type of worker in a public place where workers can see the
7posting or at the place where they receive their wages.
8The commissioner is given specific powers for investigation,
9enforcement, and penalization. The commissioner may sue to
10prevent a contractor or subcontractor from being awarded
11a contract for a public improvement when the wage rate
12requirements have not been met. The commissioner is given the
13power to withhold payments if a contractor or subcontractor
14does not produce records upon request and to pay the workers
15directly if the contractor or subcontractor continues to refuse
16to provide records.
17After receiving a complaint, the commissioner shall
18investigate whether there has been a violation. If the
19commissioner determines there has been a violation, the
20contractor or subcontractor must be given notice of that
21violation. The notice is a formal written statement from the
22department of workforce development that states the specific
23violation and the amount of money due as a penalty.
24If a public body has divided up a public improvement to
25avoid having to pay the wage rate, the commissioner shall order
26compliance. A worker who is paid less than the wage rate set by
27this law can sue for the difference in payment and collect the
28difference along with costs and attorney fees in court.
29The contractor or subcontractor shall also have to pay the
30division 50 percent of the amount of underpayment and is liable
31to the worker for punitive damages of up to 5 percent of the
32underpayments for each month the underpayment remains unpaid
33plus costs and attorney fees.
34If a second or subsequent action for underpaying a worker
35is brought against a contractor or subcontractor within a
-29-1three-year period and the contractor or subcontractor is
2liable, the contractor or subcontractor shall pay the division
375 percent of the amount of underpayment, is liable to the
4worker for 10 percent of the penalty for underpayments for each
5month following it that the underpayment remains unpaid, and
6is liable to the worker for triple the difference between the
7amount paid to the worker and the amount due under the wage
8rate set by the commissioner plus costs and attorney fees.
9The commissioner or any interested party has a right of
10action on behalf of any individual who has a right of action
11under the bill. The commissioner may file a lawsuit in trust
12for a worker who assigns the claim and then bring legal action
13to collect the claim. The contractor shall be required to pay
14the expenses for collection of the claim.
15The bill prohibits a person from requesting or demanding
16that a worker pay back, return, donate, contribute, or give
17any part or all of the worker’s wages, salary, or thing of
18value, to any person who asserts that failure to comply with
19the request or demand will prevent the worker from procuring
20or retaining employment. The bill prohibits a person from
21paying, requesting, or authorizing any other person to violate
22the requirements of the bill. However, these provisions do
23not apply to authorized labor organization representatives
24collecting dues or assessments.
25In addition to other penalties under the bill, anyone who
26attempts to get a worker to give up any part of compensation
27on a public improvement by threat not to hire or by threat of
28firing is guilty of a serious misdemeanor. Any agreement to
29work for less than the determined wage rate is not a defense to
30criminal prosecution. A serious misdemeanor is punishable by
31confinement for no more than one year and a fine of at least
32$315 but not more than $1,875.
33If a contractor or subcontractor has violated the bill twice
34within a three-year period, the contractor or subcontractor
35or any company or group associated with the contractor or
-30-1subcontractor shall not be given any public improvement work
2for five years. The department of workforce development
3shall keep a list on its internet site of contractors and
4subcontractors who have violated the bill twice within a
5three-year period and notify public bodies by restricted
6certified mail.
7A contractor or subcontractor who has been notified of
8the second violation has 10 days to request a hearing before
9an administrative law judge. A hearing must be held within
1045 days of the request. If no hearing is requested, the
11contractor is barred from receiving public improvement work and
12its name and information is posted on the department’s internet
13site.
14Apprentices employed on a public improvement project must
15be registered with the federal office of apprenticeship.
16Apprentices must receive the wages set out in the standards of
17apprenticeship and do only the work specified in the trade to
18which they are apprenticed. An apprentice not registered with
19the federal program shall be paid the wage rate the same as any
20other worker.
21The bill may include a state mandate as defined in Code
22section 25B.3. The bill makes inapplicable Code section 25B.2,
23subsection 3, which would relieve a political subdivision from
24complying with a state mandate if funding for the cost of
25the state mandate is not provided or specified. Therefore,
26political subdivisions are required to comply with any state
27mandate included in the bill.
28The bill takes effect January 1, 2022.
-31-je/rn
2persons working on public improvements for public bodies,
3providing remedies and penalties, and including effective
4date provisions.
5BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. Section 84A.5, subsection 4, Code 2021, is
2amended to read as follows:
34. The division of labor services is responsible for the
4administration of the laws of this state under chapters 88,
588A, 88B, 89, 89A, 89B, 90A, 91, 91A, 91C, 91D, 91E, 91F, 92,
6and 94A, and sections 73A.21 and 85.68. The executive head of
7the division is the labor commissioner, appointed pursuant to
8section 91.2.
9 Sec. 2. Section 91.4, subsection 2, Code 2021, is amended
10to read as follows:
112. The director of the department of workforce development,
12in consultation with the labor commissioner, shall, at the
13time provided by law, make an annual report to the governor
14setting forth in appropriate form the business and expense of
15the division of labor services for the preceding year, the
16number of remedial actions taken under chapter 89A, the number
17of disputes or violations processed by the division and the
18disposition of the disputes or violations, and other matters
19pertaining to the division which are of public interest,
20together with recommendations for change or amendment of the
21laws in this chapter and chapters 88, 88A, 88B, 89, 89A, 89B,
2290A, 91A, 91C, 91D, 91E, 91F, 92, and 94A, and section 85.68,
23and the recommendations, if any, shall be transmitted by the
24governor to the first general assembly in session after the
25report is filed.
26 Sec. 3. NEW SECTION. 91F.1 Short title.
27This chapter shall be known and may be cited as the “Public
28Improvement Quality Protection Act”.
29 Sec. 4. NEW SECTION. 91F.2 Public policy.
30It is in the public interest that public improvements
31are completed by the best means and highest quality of labor
32reasonably available, and that workers working on public
33improvements be compensated according to the real value of the
34services they perform. It is the policy of this state that the
35wages of workers working on public improvements should be at
-1-1least equal to the prevailing wage rates paid for similar work
2by responsible contractors in the community as a whole in order
3to accomplish all of the following:
41. Protect workers and their contractors and subcontractors
5from the effects of serious and unfair competition resulting
6from wage levels detrimental to efficiency and well-being.
72. Ensure that contractors compete with one another
8on the basis of the ability to perform work competently
9and efficiently while maintaining community-established
10compensation standards.
113. Recognize that local participation in public
12improvements and family wage income and benefits are essential
13to the protection of community standards.
144. Encourage training and education of workers to industry
15skills standards.
165. Encourage contractors and subcontractors to use funds
17allocated for employee fringe benefits for the actual purchase
18of those benefits.
19 Sec. 5. NEW SECTION. 91F.3 Definitions.
20As used in this chapter, unless the context otherwise
21requires:
221. “Commissioner” means the labor commissioner appointed
23pursuant to section 91.2.
242. “Contractor” or “subcontractor” means a person who
25undertakes, offers to undertake, purports to have the capacity
26to undertake, or submits a bid, individually or through others,
27to engage in a public improvement.
283. “Custom fabrication” means the fabrication of plumbing,
29heating, cooling, ventilation, architectural systems,
30structural systems, exhaust duct systems, or mechanical
31insulation.
324. “Division” means the division of labor of the department
33of workforce development.
345. a. “Fringe benefits” means the following for the
35provision or purchase of any of the benefits enumerated in
-2-1paragraph “b”:
2(1) The contribution irrevocably made by a contractor or
3subcontractor to a trustee or to a third person pursuant to a
4plan, fund, or program.
5(2) The costs to the contractor or subcontractor which
6may be reasonably anticipated in providing benefits to
7workers pursuant to an enforceable commitment to carry out a
8financially responsible plan or program, given in writing to
9the workers affected.
10b. (1) Medical or hospital care.
11(2) Pensions or annuities on retirement or death.
12(3) Supplemental unemployment benefits.
13(4) Life insurance.
14(5) Disability and sickness insurance.
15(6) Accident insurance for nonwork-related accidents.
16(7) Vacation or holiday pay.
17(8) Defraying costs of apprenticeship programs approved by
18and registered with the United States department of labor’s
19office of apprenticeship.
206. “Interested party” means any of the following:
21a. A contractor who submits a bid for the purpose of
22securing the award of a contract for a public improvement.
23b. A subcontractor of a contractor mentioned in a bid
24referred to in paragraph “a”.
25c. A worker employed by a contractor or subcontractor
26described in either paragraph “a” or “b”.
27d. A labor organization that represents workers engaged
28in the same craft or classification as workers employed by a
29contractor or subcontractor described in either paragraph “a”
30or “b” and that exists, in whole or in part, for the purpose
31of negotiating with employers concerning the wages, hours, or
32terms and conditions of employment of employees.
33e. A joint labor-management committee established pursuant
34to the federal Labor Management Cooperation Act of 1978, 29
35U.S.C.§175a.
-3- 17. “Locality” means a county of this state.
28. “Maintenance work” means the repair of existing public
3improvements when the size, type, or extent of the public
4improvement is not changed or increased.
59. “Prevailing wage rate” means the hourly wage plus
6fringe benefits that the commissioner determines prevails in
7accordance with this chapter, including all of the following:
8a. Apprentice ratios and the prevailing apprentice pay
9levels for each craft, classification, or type of worker which
10the commissioner determines prevails in accordance with section
1191F.5.
12b. A prevailing rate for overtime pay for work in excess
13of the normal prevailing workday and for weekend overtime pay
14for each craft, classification, or type of worker, including
15apprentices.
16c. Holiday pay for holidays that prevail in the locality in
17which the work is being performed.
1810. “Public body” means the state and any of its political
19subdivisions, including but not limited to a county, city,
20township, school district, state board of regents, and public
21utility. For the purposes of this chapter, “public utility”
22includes municipally owned utilities and municipally owned
23waterworks.
2411. a. “Public improvement” means any of the following that
25meets the criteria set out in paragraphs “b” and “c”:
26(1) Construction, alteration, reconstruction, repair,
27rehabilitation, refinishing, refurbishing, remodeling,
28renovation, custom fabricating, maintenance, landscaping,
29improving, moving, wrecking, painting, decorating, or
30demolishing of, or adding to or subtracting from any building,
31structure, highway, road, street, bridge, alley, sewer, ditch,
32sewage disposal plant, waterworks, parking facility, railroad,
33excavation or other structure, project, development, or
34improvement, or any part thereof undertaken by a public body,
35including any of the following related activities:
-4- 1(a) The erection of scaffolding or other structures or
2works.
3(b) The maintenance, repair, assembly, or disassembly of
4equipment.
5(c) The testing of materials.
6(d) The hauling of refuse from a site to an outside disposal
7location.
8(e) The cleaning of grounds or structures.
9(f) The addition to or fabrication into any structure,
10project, development, or improvement of any material or article
11of merchandise undertaken by a public body.
12(2) The preparation and removal of roadway construction
13zones, lane closures, flagging, or traffic diversions
14undertaken by a public body.
15(3) The installation, repair, maintenance, or calibration
16of monitoring equipment for underground storage tanks
17undertaken by a public body.
18(4) Work that is performed on any property or premises
19dedicated exclusively or nearly so to the completion of a
20public improvement, and transportation of supplies, material,
21and equipment to or from the property or premises undertaken
22by a public body.
23b. Work on the public improvement is performed under public
24supervision or direction, and the work is financed wholly or
25in part from public funds, or if at the time of commencement
26of the public improvement all of the following conditions with
27respect to the public improvement are met:
28(1) Not less than fifty-five percent of the structure is
29leased by a public body, or is subject to an agreement to be
30subsequently leased by a public body.
31(2) The portion of the structure that is leased or subject
32to an agreement to be subsequently leased by a public body
33measures more than twenty thousand square feet.
34c. The public improvement has an estimated total cost that
35exceeds twenty-five thousand dollars.
-5- 112. “Worker” means an individual who performs any
2labor or service for a contractor or subcontractor on a
3public improvement but does not include an individual when
4transporting a seller, supplier, manufacturer, or processor of
5materials or equipment. The individual is deemed an employee
6of a contractor or subcontractor unless all of the following
7apply:
8a. The individual provides labor or services free from the
9direction or control over the means and manner of providing the
10labor or services, subject only to the right of the person for
11whom the labor or services are provided to specify the desired
12results.
13b. The individual providing the labor or services is
14responsible for obtaining business registrations or licenses
15required by state law or local ordinance to provide the labor
16or services.
17c. The individual providing the labor or services furnishes
18the tools and equipment necessary to provide the labor or
19services.
20d. The individual providing the labor or services has the
21authority to hire and fire employees to perform the labor or
22services.
23e. Payment for the labor or services is made upon
24completion of the performance of specific portions of a public
25improvement, or is made on the basis of a periodic retainer.
26f. The individual providing the labor or services represents
27to the public that the labor or services are to be provided
28by an independently established business. An individual is
29engaged in an independently established business when four or
30more of the following circumstances exist:
31(1) Labor or services are primarily performed at a location
32separate from the individual’s residence or in a specified
33portion of the residence that is set aside for performing labor
34or services.
35(2) Commercial advertising or business cards are purchased
-6-1by the individual, or the individual is a member of a trade or
2professional association.
3(3) Telephone or electronic mail listings used by the
4individual for the labor or services are different from the
5individual’s personal listings.
6(4) Labor or services are performed only pursuant to a
7written contract.
8(5) Labor or services are performed for two or more persons
9or entities within a period of one year.
10(6) The individual assumes financial responsibility
11for errors and omissions in the performance of the labor or
12services as evidenced by insurance, performance bonds, and
13warranties relating to the labor or services provided.
14 Sec. 6. NEW SECTION. 91F.4 Administration — rules.
151. The commissioner and the division shall administer this
16chapter.
172. The commissioner shall adopt rules pursuant to chapter
1817A to administer this chapter.
19 Sec. 7. NEW SECTION. 91F.5 Determination of prevailing
20wages.
211. The commissioner shall determine annually, and publish
22pursuant to subsection 2, on the first business day of
23July, the prevailing wage rates by locality for each craft,
24classification, or type of worker needed to perform work on
25public improvements. The rates shall be conclusive for one
26year from the date of publication unless superseded within the
27one year by a later publication of the commissioner, or for a
28longer period as provided in subsection 5.
292. The commissioner shall announce all prevailing wage rate
30determinations by locality and give notice by posting them
31on the portion of the department of workforce development’s
32internet site related to the division. A printed version of
33the prevailing wage rates for the state shall be available to
34the public upon request to the division.
353. The public body awarding any contract for a public
-7-1improvement, or otherwise undertaking any public improvement,
2shall obtain from the internet site the prevailing wage rate
3in the locality in which work on the public improvement is
4to be performed for each craft, classification, or type of
5worker needed to perform work on the public improvement.
6After a public improvement contract is awarded, or a public
7improvement is otherwise undertaken, the prevailing wage
8rate published by the commissioner and stated in the public
9body’s public improvement procurement documents shall remain
10in effect throughout the duration of the public improvement
11unless superseded by a later determination and publication by
12the commissioner, or unless multiyear prevailing wage rates
13have been published by the commissioner at the time the public
14improvement procurement documents were released.
154. a. In determining the annual prevailing wage rate
16for any craft, classification, or type of worker, the
17commissioner shall ascertain and consider the applicable
18wage rates and fringe benefits established by collective
19bargaining agreements, the prevailing wage rate determinations
20that may exist for federal public improvements within the
21locality, and other data obtained by the department during any
22prevailing wage rate survey of contractors who participate in
23an apprenticeship program approved by and registered with the
24United States department of labor’s office of apprenticeship,
25who provide health insurance and retirement benefits for their
26workers, and who are registered with the division. Based
27upon these considerations, the commissioner shall calculate
28the prevailing wage rates based on the wage rate plus fringe
29benefits most often occurring for each craft, classification,
30or other type of worker within each locality.
31b. The minimum annual prevailing wage rate determination
32established by the department shall not be lower than the
33prevailing wage rate determination that may exist for federal
34public improvements within the locality and in the nearest
35labor market area.
-8- 1c. None of the fringe benefits enumerated in this chapter
2may be considered in the determination of prevailing wage
3rates if the contractor or subcontractor is required by other
4federal, state, or local law to provide such fringe benefits.
55. If the commissioner determines that the prevailing
6wage rate for any craft, classification, or type of worker
7is the rate established by a collective bargaining agreement
8applicable in the locality, the commissioner may adopt that
9rate by reference and that determination shall be effective
10for the life of the agreement or until the commissioner adopts
11another rate.
126. a. At any time within fifteen days after the division
13has published on the department of workforce development’s
14internet site the annual prevailing wage rates for each
15classification, craft, or other type of worker in the locality,
16any interested person affected may object to the determination
17or the part of the determination as the interested person
18may deem objectionable by filing a written notice with the
19commissioner by restricted certified mail as defined in
20section 618.15. When objecting to a prevailing wage rate
21determination, the interested person shall submit, as a
22part of the written notice, the prevailing wage rate the
23interested person believes to be the correct prevailing wage
24rate determination, stating the specific grounds to support
25that position. Upon receipt of the notice of objection, the
26commissioner shall reconsider the determination and shall
27affirm or modify the determination and reply in writing by
28restricted certified mail to the interested person within
29fifteen days from the date of the receipt of the notice of
30objection. Any modification to the prevailing wage rate
31determination shall be effective on the date the modification
32is published by the commissioner.
33b. If the commissioner declines to modify the determination,
34within ten days upon receiving receipt of the commissioner’s
35decision, the interested person affected may submit in writing
-9-1the objection to the division by restricted certified mail,
2stating the specified grounds of the objection. The department
3of inspections and appeals shall be notified of the objection
4and set a date for a hearing before an administrative law judge
5on the objection, after giving notice by restricted certified
6mail to the interested person and the division at least ten
7days before the date of the hearing of the time and place of
8the hearing. The hearing shall be held within forty-five days
9after the objection is filed, and shall not be postponed or
10reset for a later date except upon the consent, in writing, of
11the interested person and the division.
127. The party requesting a hearing shall have the burden of
13establishing that the annual prevailing wage rate determination
14for that locality was not determined in accordance with this
15chapter. If the party requesting a hearing under this section
16objects to the commissioner’s failure to include a craft,
17classification, or type of worker within the annual prevailing
18wage rate determination in the locality, the objector shall
19have the burden of establishing that there is no existing
20prevailing wage rate classification for the particular craft,
21classification, or type of worker in any of the localities
22under consideration.
238. The administrative law judge may in the administrative
24law judge’s discretion hear each written objection filed
25separately or consolidate for hearing any one or more written
26objections filed with the division. At the hearing, the
27division shall introduce into evidence the investigation it
28instituted which formed the basis of its determination, and the
29division or any interested objectors may introduce evidence
30that is material to the determination. The administrative
31law judge shall rule upon each written objection and make a
32final determination, as the administrative law judge believes
33the evidence warrants, and promptly serve a copy of the final
34determination by personal service or restricted certified mail
35on all parties to the proceedings. The administrative law
-10-1judge shall render a final determination within thirty days
2after the conclusion of the hearing.
39. If proceedings to review judicially the final
4determination of the administrative law judge are not
5instituted as provided in this section, the determination
6shall be final and binding. The provisions of section 17A.19
7shall apply to and govern all proceedings. Appeals from all
8final orders and judgments entered by the court in review of
9the final determination of the administrative law judge may be
10taken by any party to the action. In all reviews or appeals
11under this chapter, the attorney general shall represent the
12division and defend its determination.
1310. This section does not give reason or provide cause for
14an injunction to halt or delay any public improvement.
15 Sec. 8. NEW SECTION. 91F.6 Payment of prevailing wages
16required.
171. Contractors and subcontractors engaged in a public
18improvement shall pay not less than the current specified
19prevailing wage rates to all of their workers engaged in the
20public improvement. However, this chapter does not prohibit
21the payment of more than the prevailing wage rate to any
22workers engaged in a public improvement.
232. All contractors and subcontractors required to pay the
24prevailing wage rate under this chapter shall pay the wages
25in legal tender, without any deduction for food, sleeping
26accommodations, transportation, use of tools or safety
27equipment, vehicle or equipment rental, or any other thing of
28any kind or description.
29 Sec. 9. NEW SECTION. 91F.7 Requirements for public
30improvements.
311. The public body awarding a contract for a public
32improvement or otherwise undertaking a public improvement shall
33specify in the call for bids for the contract that this chapter
34applies to the public improvement.
352. If a public improvement requires the payment of
-11-1prevailing wage rates, the public body shall require the
2contractor to execute a written instrument that not less
3than the prevailing wage rate shall be paid to all workers
4performing work on the public improvement. The written
5instrument shall also contain a provision that if it is found
6that any of the contractor’s workers engaged in the public
7improvement have been paid at a wage rate less than the
8prevailing wage rate required by this chapter, the public body
9may terminate the contractor’s right to proceed with the work
10and the contractor and its sureties shall be liable to the
11public body for any excess costs occasioned by the failure to
12pay the prevailing wage rate. The written instrument shall
13have attached a list of the specified prevailing wage rates
14for all crafts, classifications, or types of workers in the
15locality for each worker needed to be included in the contract
16for the public improvement.
173. If a contract is let for a public improvement requiring
18the payment of prevailing wage rates, the public body
19awarding the contract shall cause to be inserted in the public
20improvement specifications and contract a stipulation that
21not less than the prevailing wage rate shall be paid to all
22workers performing work under the contract. The contract
23shall also contain a provision to the effect that if it is
24found that any of the contractor’s workers engaged in the
25public improvement have been paid at a wage rate less than the
26prevailing wage rate required by this chapter, the public body
27may terminate the contractor’s right to proceed with the work
28and the contractor and its sureties shall be liable to the
29public body for any excess costs occasioned by the failure to
30pay the prevailing wage rate. All bid specifications shall
31list the specified prevailing wage rates for all crafts,
32classifications, or types of workers in the locality for each
33worker needed to be included in the contract.
344. If a public improvement requires the payment of
35prevailing wage rates, the contractor shall require any
-12-1subcontractors engaged by the contractor on the public
2improvement to execute a written instrument that not less
3than the prevailing wage rates shall be paid to all workers
4performing work on the public improvement. The written
5instrument shall also contain a provision that if it is
6found that any of the subcontractor’s workers engaged in the
7public improvement have been paid at a wage rate less than the
8prevailing wage rate required by this chapter, the public body
9may terminate the subcontractor’s right to proceed with the
10work and the subcontractor and its sureties shall be liable to
11the public body for any excess costs occasioned by the failure
12to pay the prevailing wage rate. The written instrument shall
13have attached a list of the specified prevailing wage rates
14for all crafts, classifications, or types of workers in the
15locality for each worker needed to be included in the contract.
165. If a subcontract is let for a public improvement
17requiring the payment of the prevailing wage rate, the
18contractor to whom the contract is awarded shall insert
19into the subcontract and into the public improvement project
20specifications for each subcontract a written stipulation that
21not less than the prevailing wage rate shall be paid to all
22workers performing work under the subcontract. A subcontractor
23shall insert into each lower-tiered subcontract a stipulation
24that not less than the prevailing wage rate shall be paid
25to all workers performing work under the subcontract. The
26subcontract shall also contain a provision that if it is
27found that any of the subcontractor’s workers engaged in the
28public improvement have been paid at a wage rate less than the
29prevailing wage rate required by this chapter, the public body
30may terminate the subcontractor’s right to proceed with the
31work and the subcontractor and its sureties shall be liable to
32the public body for any excess costs occasioned by the failure
33to pay the prevailing wage rate. All bid specifications shall
34list the specified prevailing wage rates for all crafts,
35classifications, or types of workers in the locality for each
-13-1worker needed to be included in the subcontract.
26. A contractor or subcontractor engaging in a public
3improvement shall submit a performance bond in an amount
4determined by the public body which bond shall include a
5provision that will guarantee the payment of the prevailing
6wage rates as required by the contract.
77. Before final payment is made by or on behalf of a public
8body of any sum or sums due on a public improvement, the
9treasurer of the public body or other officer or person charged
10with the custody and disbursement of the funds of the public
11body shall require the contractor and subcontractor to file a
12written statement with the public body, in a form satisfactory
13to the division, certifying to the amounts then due and owing
14from the contractor and subcontractor to any and all workers
15for wages due on account of the public improvement, setting
16forth the names of the persons whose wages are unpaid and
17the amount due to each respectively. The statement shall be
18verified by the oath of the contractor or subcontractor, as the
19case may be, that the contractor or subcontractor has read the
20statement certified by the contractor or subcontractor, knows
21the contents, and that the statement is true in accordance with
22the contractor’s or subcontractor’s own knowledge. However,
23this chapter shall not impair the right of a contractor to
24receive final payment from a public body because of the failure
25of a subcontractor to comply with provisions of this chapter.
26The treasurer of the public body or other officer or person
27charged with the custody and disbursement of the funds of the
28public body shall withhold the amount, if any, listed on the
29verified statement filed pursuant to this section for the
30benefit of the worker whose wages are unpaid as shown by the
31verified statement filed by the contractor or subcontractor,
32and the public body shall pay directly to any worker the amount
33shown by the statement to be due to the worker for the wages.
34Payment shall discharge the obligation of the contractor or
35subcontractor to the person receiving the payment to the extent
-14-1of the amount of the payment.
28. The public body awarding a contract for a public
3improvement or otherwise undertaking a public improvement shall
4notify the commissioner in writing, on a form prescribed by
5the commissioner, if a contract subject to the provisions of
6this chapter has been awarded. The public body shall file
7the notification with the commissioner within thirty days
8after the contract is awarded or before commencement of the
9public improvement, and shall include a list of all first-tier
10subcontractors.
11 Sec. 10. NEW SECTION. 91F.8 Federal public improvements
12— not applicable.
13The provisions of this chapter shall not be applicable
14to public improvements financed entirely by federal funds
15which require a prevailing wage rate determination by the
16United States department of labor. However, unless a federal
17provision applies, if a public improvement is financed in part
18by a public body and in part by federal funds, the higher of the
19prevailing wage rates shall prevail for the public improvement.
20 Sec. 11. NEW SECTION. 91F.9 Records required.
211. While participating in a public improvement, the
22contractor and each subcontractor shall do all of the
23following:
24a. Make and keep, for a period of not less than three years,
25accurate records of all workers employed by the contractor or
26subcontractor on the public improvement. The records shall
27include each worker’s name, address, telephone number when
28available, social security number, trade classification, the
29hourly wages paid in each pay period, the number of hours
30worked each day, and the starting and ending times of work each
31day.
32b. Submit weekly a certified payroll to the public body
33in charge of the public improvement. The certified payroll
34shall consist of a complete copy of the records identified in
35paragraph “a”. The certified payroll shall be accompanied by a
-15-1statement signed by the contractor or subcontractor which avers
2that the records are true and accurate and the hourly wages
3paid to each worker are not less than the prevailing wage rate
4required by this chapter.
52. The public body in charge of the public improvement
6shall keep the records submitted in accordance with subsection
71, paragraph “b”, for a period of not less than three years.
8The records shall be considered public records and be made
9available in accordance with chapter 22. Personal information
10submitted in accordance with subsection 1, paragraph “a”,
11including names, addresses, social security numbers, telephone
12numbers, and other identifying information shall remain
13confidential and shall not be made public.
143. The contractor and each subcontractor shall make
15available for inspection the records identified in subsection
161, paragraph “a”, to the public body in charge of the public
17improvement, its officers and agents, and to the division.
184. For the purpose of verifying the accuracy of the records
19submitted pursuant to this section, the contractor and each
20subcontractor shall make its workers available at the site of
21the public improvement for interview by the public body in
22charge of the public improvement, its officers and agents, and
23the division.
245. Contractors and subcontractors performing work on public
25improvements subject to this chapter shall post the prevailing
26wage rates for each craft, classification, or type of workers
27involved in the public improvement in a prominent and easily
28accessible place at the site of the public improvement or at
29the place or places used by the contractor or subcontractor to
30pay workers their wages.
31 Sec. 12. NEW SECTION. 91F.10 Powers of commissioner.
32The commissioner shall do all of the following:
331. Inquire diligently about any complaint of a violation of
34this chapter, institute actions for penalties prescribed, and
35enforce generally the provisions of this chapter.
-16- 12. Sue for injunctive relief against the awarding of a
2contract, the undertaking of a public improvement, or the
3continuation of a public improvement when the prevailing wage
4rate requirements of this chapter have not been met.
53. Investigate and ascertain the wages of workers engaged in
6any public improvement in this state.
74. a. Enter and inspect the place of business or employment
8of a contractor, subcontractor, or workers employed on a public
9improvement in this state, for the purpose of examining and
10inspecting books, registers, payrolls, and other records of a
11contractor or subcontractor that in any way relate to or have a
12bearing upon the question of wages, hours, and other conditions
13of employment of workers covered under this chapter.
14b. Copy the books, registers, payrolls, and other
15records as the commissioner or the commissioner’s authorized
16representative deems necessary or appropriate.
17c. Question the workers for the purpose of ascertaining
18whether the provisions of this chapter have been and are being
19complied with.
20d. Administer oaths, take or cause to be taken depositions
21of witnesses, and require by subpoena the attendance and
22testimony of witnesses and the production of all books,
23registers, payrolls, and other evidence relative to the matter
24under investigation or hearing.
255. Require from a contractor or subcontractor full and
26correct statements in writing, including sworn statements,
27with respect to wages, hours, names, addresses, and other
28information pertaining to its workers and their employment,
29as the commissioner or the commissioner’s authorized
30representative may deem necessary or appropriate.
316. Require a contractor or subcontractor to file, within
32ten days of receipt of a request, any records enumerated in
33subsection 4, sworn as to their validity and accuracy as
34required by subsection 5. If the contractor or subcontractor
35fails to provide the requested records within ten days, the
-17-1commissioner may direct, within fifteen days after the end
2of the ten-day period, that the fiscal or financial officer
3charged with the custody and disbursements of the funds of the
4public body, which contracted for construction of the public
5improvement or undertook the public improvement, to immediately
6withhold from payment to the contractor or subcontractor
7up to twenty-five percent of the amount to be paid to the
8contractor or subcontractor under the terms of the contract
9or written instrument under which the public improvement is
10being performed. The amount withheld shall be immediately
11released upon receipt by the public body of a notice from
12the commissioner indicating that the request for records as
13required by this section has been satisfied.
147. If a contractor or subcontractor fails to provide
15requested records in accordance with subsection 6 within ten
16days, direct, within fifteen days after the end of the ten-day
17period, the fiscal or financial officer charged with the
18custody and disbursements of the funds of the public body,
19which contracted for construction of the public improvement or
20undertook the public improvement, to pay directly to workers
21employed by the contractor or subcontractor from the amount
22withheld from the contractor or subcontractor pursuant to
23subsection 6 any prevailing wage rates found to be due and
24payable to the workers.
258. Contract with a person registered as a public accountant
26under chapter 542 to conduct an audit of a contractor,
27subcontractor, or public body.
28 Sec. 13. NEW SECTION. 91F.11 Notice of violations.
291. For purposes of this section:
30a. “Accurate records” means the payroll records required
31to be submitted to the public body in charge of the public
32improvement by section 91F.9. “Accurate records” also means the
33hourly rate of contribution and costs paid for fringe benefits
34and whether the contributions and costs of the fringe benefits
35were paid into a fund or paid directly to the worker.
-18- 1b. “Decision” means a determination by the division that a
2single violation of this chapter has occurred, warranting the
3commissioner to issue a notice of violation to a contractor or
4subcontractor.
5c. “Notice of second violation” is a formal written notice
6issued by the division advising a contractor or subcontractor
7that a second or subsequent violation has occurred within three
8years from the date of the notice of a first violation.
9d. “Notice of violation” means a formal written notice
10issued by the division to a contractor or subcontractor
11that the division has made a decision that the contractor or
12subcontractor has violated this chapter.
13e. “Violation” means that a contractor or subcontractor has
14done one of the following:
15(1) Failed or refused to pay the prevailing wage rate to one
16or more workers as required by this chapter.
17(2) Failed to keep accurate records as required by this
18chapter.
19(3) Failed to produce for the division accurate records or
20produced records not in compliance with this chapter.
21(4) Refused to submit records or testimony to the division
22in response to a subpoena issued in accordance with this
23chapter.
24(5) Refused to comply with the certified payroll provision
25of section 91F.9.
26(6) Refused the division access, at any reasonable hour at
27a location within the state, to inspect the contractor’s or
28subcontractor’s records as required by this chapter.
29(7) Failed to insert into each subcontract or lower-tiered
30subcontract and into the public improvement specifications
31for each subcontract or lower-tiered subcontract or provide a
32written instrument if no contract exists, a written stipulation
33that not less than the prevailing wage rate be paid as required
34by this chapter, and a statement that if it is found that a
35subcontractor’s workers engaged in the public improvement have
-19-1been paid at a rate of wages less than the prevailing wage rate
2required to be paid by the contract, the public body shall
3terminate the subcontractor’s right to proceed with the work.
4(8) Failed to obtain a bond in the proper amount that
5guarantees the payment of the prevailing wage rates required in
6the contract.
7(9) Failed to post the prevailing wage rates as required by
8this chapter.
92. After receipt of a complaint or on the division’s
10initiative, the commissioner shall review the investigative
11file to determine whether a violation has occurred for
12which the contractor or subcontractor must be given notice.
13All information and observations made during an audit or
14investigation shall be considered and shall constitute the
15basis for the division’s decision that this chapter has
16been violated and that a notice of violation is required
17to be issued. The notice of violation shall identify the
18specific violation and the amount of moneys estimated due the
19division and in controversy based on reasons contained in the
20investigative file.
213. In making a decision that a contractor or subcontractor
22has failed to allow the commissioner access to accurate
23records, the commissioner shall rely on the information
24contained in the investigative file, the certified payroll
25records submitted to the public body in charge of the public
26improvement or any other information, and shall assess a
27separate violation for each day worked by each worker on the
28public improvement. Each decision of a separate violation
29shall be listed in the notice of violation.
304. In determining that this chapter has been violated and
31that the issuance of a notice of violation is required, the
32commissioner shall base the decision on one or any combination
33of the following reasons:
34a. The severity of the violation, which includes the
35following:
-20- 1(1) The amount of wages that are determined to be underpaid
2pursuant to this chapter.
3(2) The activity or conduct complained of that violates the
4requirements of this chapter and was not merely a technical,
5nonsubstantive error. Examples of a technical error include
6but are not limited to a mathematical error, bookkeeping error,
7transposition of numbers, or computer or programming error.
8b. The nature and duration of the present violation and the
9prior history of the contractor or subcontractor related to
10this history. The prior history considered shall not exceed
11seven years before the date of the notice of violation.
12c. Whether the contractor or subcontractor submitted
13certified payroll records with the public body in charge of the
14public improvement; whether the contractor or subcontractor
15has kept payroll records and accurate records for three years;
16and whether the contractor or subcontractor produced certified
17payroll records in accordance with section 91F.9.
18d. Whether the contractor or subcontractor has violated any
19other provision of this chapter.
205. The notices of the first, second, and subsequent
21violations shall be sent by restricted certified mail,
22addressed to the last known address of the contractor or
23subcontractor involved. The notices shall contain a reference
24to the specific provisions of this chapter alleged to have been
25violated, identify the particular public improvement involved,
26identify the conduct complained of, and identify whether the
27notice is a notice of a first, second, or subsequent violation,
28and include a contractor’s or subcontractor’s statement of
29liabilities.
30 Sec. 14. NEW SECTION. 91F.12 Violations — remedies and
31penalties.
321. If the commissioner determines that a public body has
33divided a public improvement into more than one contract for
34the purpose of avoiding compliance with this chapter, the
35commissioner shall issue an order compelling compliance. In
-21-1making a determination whether a public body has divided a
2public improvement into more than one contract for the purpose
3of avoiding compliance with this chapter, the commissioner
4shall consider all of the following:
5a. The physical separation of the public improvement
6structures or work.
7b. The timing of the work on the public improvement phases
8or structures.
9c. The continuity of public improvement contractors and
10subcontractors working on public improvement parts or phases.
11d. The manner in which the public body and the contractor
12and subcontractors administer and implement work on the public
13improvement.
142. A worker employed by the contractor or subcontractor who
15is paid less than the specified prevailing wage rate under this
16chapter shall have a private right of action for the difference
17between the amount so paid and the specified prevailing wage
18rate, together with costs and reasonable attorney fees as shall
19be allowed by the court.
203. The contractor or subcontractor shall additionally be
21liable to the division for fifty percent of the amount of
22underpayments and shall be additionally liable to the worker
23for punitive damages in an amount equal to five percent of the
24liability to the division for underpayments for each month
25following the date of payment during which underpayments remain
26unpaid, together with costs and reasonable attorney fees as
27shall be allowed by the court.
284. If a second or subsequent action to recover underpayments
29is brought against a contractor or subcontractor within a
30three-year period and the contractor or subcontractor is
31found liable for underpayments to a worker, the contractor or
32subcontractor shall be liable to the division for seventy-five
33percent of the amount of underpayments payable as a result of
34the second or subsequent action, additionally liable to the
35worker for ten percent of the amount of the liability to the
-22-1division for underpayments for each month following the date
2of payment during which the underpayments remain unpaid, and
3further liable to the worker for triple the difference between
4the amount so paid to the worker and the specified prevailing
5wage rate required, together with costs and reasonable attorney
6fees as shall be allowed by the court. The three-year period
7begins to run from the date the contractor or subcontractor is
8determined liable for the first violation.
95. The commissioner and any interested party shall also
10have a right of action on behalf of a worker who has a right of
11action under this chapter. An action brought to recover the
12same shall be deemed to be a suit for wages, and all judgments
13entered in the action shall have the same force and effect as
14other judgments for wages. At the request of a worker employed
15by a contractor or subcontractor who is paid less than the
16prevailing wage rate required by this chapter, the commissioner
17may take an assignment of the wage claim in trust for the
18assigning worker and may bring any legal action necessary to
19collect the claim, and the contractor or subcontractor shall
20be required to pay the expenses of the division incurred in
21collecting the claim.
226. In circumstances where a worker may not be available to
23receive a payment or judgment, the payment due the worker shall
24revert to the division after one year elapses from the time
25payment was attempted to be made or judgment was rendered.
267. a. It is a violation of this chapter to do any of the
27following:
28(1) To request or demand, either before or after the worker
29is engaged in a public improvement, that a worker pay back,
30return, donate, contribute, or give any part or all of the
31worker’s wages, salary, or thing of value, to any person, upon
32the statement, representation, or understanding that failure to
33comply with the request or demand will prevent the worker from
34procuring or retaining employment.
35(2) To directly or indirectly pay, request, or authorize any
-23-1other person to violate this chapter.
2b. This subsection does not apply to an agent or
3representative of a duly constituted labor organization acting
4in the collection of dues or assessments of the organization.
58. In addition to other penalties provided under this
6chapter, whoever induces a worker working on a public
7improvement subject to this chapter to give up or forego
8any part of the prevailing wage rates to which the worker
9is entitled under this chapter by threat not to employ
10or by threat of dismissal from employment is guilty of a
11serious misdemeanor. An agreement between the worker and the
12contractor or subcontractor to work for less than the specified
13prevailing wage rate shall not be a defense to criminal
14prosecution.
159. a. A contract shall not be awarded by a public
16body to a contractor or subcontractor who, on two separate
17occasions within a three-year period, has been determined
18to have violated this chapter, or to any firm, corporation,
19partnership, or association in which the contractor or
20subcontractor has any interest until five years have elapsed
21from the date on which a final determination is rendered
22finding the contractor or subcontractor in violation of this
23chapter.
24b. For the purposes of this subsection, “any interest” means
25an interest in the entity bidding or performing work on the
26public improvement, whether as an owner, partner, officer,
27manager, employee, agent, consultant, or representative. “Any
28interest” includes but is not limited to all instances where the
29barred contractor or subcontractor receives payments, whether
30cash or any other form of compensation, from any entity bidding
31or performing work on the public improvement, or enters into
32a contract with the entity bidding or performing work on the
33public improvement for services performed or to be performed
34under contract that have been or will be assigned or sublet,
35or for vehicles, tools, equipment, or supplies that have been
-24-1or will be sold, rented, or leased during the period from the
2initiation of the barring proceedings until the end of the term
3of the barring period. “Any interest” does not include shares
4held in a publicly traded corporation if the shares were not
5received as compensation after the barring of an entity bidding
6or performing work on a public improvement.
710. If the division determines that a contractor or
8subcontractor has violated this chapter on two separate
9occasions within a three-year period, the division shall list
10on the department of workforce development’s internet site and
11keep on record the name of the contractor or subcontractor and
12give notice by restricted certified mail of the list to any
13public body requesting the list.
1411. Upon a determination that a contractor or subcontractor
15has violated this chapter on two separate occasions within a
16three-year period, the division shall notify the violating
17contractor or subcontractor by restricted certified mail. The
18contractor or subcontractor has ten working days to request of
19the division a hearing before an administrative law judge on
20the alleged violation. Failure to respond within ten working
21days shall result in automatic and immediate barring of the
22violator from work as provided in subsection 9 and placement
23and publication of the violator’s name on the department of
24workforce development’s internet site as provided in subsection
2510. If the contractor or subcontractor requests a hearing
26within ten working days by restricted certified mail, the
27department of inspections and appeals shall set a hearing
28before an administrative law judge on the alleged violation.
29The hearing shall take place no later than forty-five calendar
30days after the receipt by the division of the request for a
31hearing. An action by an administrative law judge constitutes
32final agency action and is subject to judicial review under
33section 17A.19.
3412. The attorney general shall prosecute the cases
35identified in this section upon complaint by the commissioner
-25-1or by any interested person. In any proceeding brought
2pursuant to this section, the commissioner shall be represented
3by the attorney general.
413. This section does not give reason or provide cause for
5an injunction to halt or delay any public improvement.
6 Sec. 15. NEW SECTION. 91F.13 Apprentices.
7This chapter shall not prevent the employment of apprentices
8upon public improvements. However, an apprentice employed
9on a public improvement must be registered with the United
10States department of labor’s office of apprenticeship under
11an apprenticeship program registered with that office, paid
12the proper wages specified in the standards of apprenticeship,
13and engaged only in the trade to which the apprentice is
14registered. If the apprentice is employed on a public
15improvement in a trade to which the apprentice is not
16registered with the United States department of labor’s office
17of apprenticeship, the apprentice shall be treated as any other
18worker under this chapter.
19 Sec. 16. IMPLEMENTATION OF ACT. Section 25B.2, subsection
203, shall not apply to this Act.
21 Sec. 17. EFFECTIVE DATE. This Act takes effect January 1,
222022.
23EXPLANATION
24The inclusion of this explanation does not constitute agreement with
25the explanation’s substance by the members of the general assembly.
26This bill requires a contractor to pay workers the same
27hourly wage plus fringe benefits for a public improvement
28costing more than $25,000 as prevails in the locality of the
29public improvement. The bill allows the per-hour wage rate to
30be based on what is normally paid in the area by contractors
31for similar projects, and to be adjusted on a yearly basis by
32the department of workforce development.
33The wage rates that the workers must be paid shall also
34include benefits such as medical care, life insurance, overtime
35pay, and vacation and holiday pay. The bill applies to any
-26-1public improvement that receives money from a public body and
2includes most types of public improvements from construction to
3road maintenance to painting to hauling.
4The labor commissioner determines the wage rates for
5specific geographical areas and for specific crafts,
6classifications, and types of workers. This information must
7be posted on the department of workforce development’s internet
8site. In determining what the wage rate for a worker is, the
9commissioner may consult collective bargaining agreements, wage
10rate determinations for federal projects in the same area, and
11other information the department may receive from contractors
12who participate in an apprenticeship program approved by the
13federal office of apprenticeship.
14Any person affected by the wage rates has 15 days after the
15department of workforce development has posted the wage rates
16on its internet site to object in writing, stating the specific
17reason for the objection, to the labor commissioner. The
18commissioner must reconsider the determination being objected
19to, and either affirm or modify it within 15 days of receiving
20the objection.
21If the commissioner declines to modify the determination,
22within 10 days, the person affected may submit an objection in
23writing to the division of labor services, stating the specific
24reasons for the objection. A hearing must be set by the
25department of inspections and appeals before an administrative
26law judge within 45 days after the objection is filed. The
27person who filed the objection must show the administrative
28law judge that the wage rate was somehow made in error. The
29division is required to show how it determined the wage
30rate. The administrative law judge must make a decision about
31the wage rate within 30 days and it is considered a final
32determination.
33The bill requires that contractors and subcontractors not
34pay the workers less than the established wage rate but does
35not prohibit them from paying the workers more than the wage
-27-1rate. The wage rate must be paid without any deductions
2such as for food, sleeping quarters, use of tools, or safety
3equipment.
4The bill also requires the public body to monitor the
5contractors and subcontractors to ensure that the wage rate
6is paid. A call for bids must state that the wage rate must
7be included in the bids for the public improvement. All
8bids shall list the specific wage rates for each craft,
9classification, and type of worker needed for the public
10improvement. All contractors and subcontractors are required
11to sign a contract that states they will pay workers the wage
12rate determined by the division. If the contractors and
13subcontractors are found to not be paying the wage rate, the
14contract states that the contractor’s or subcontractor’s right
15to work on the public improvement and get paid for work already
16done may be terminated.
17Before the contractor or subcontractor receives the final
18payment for the public improvement, the public body overseeing
19the public improvement must certify the payments include proper
20amounts due the workers, and the contractor or subcontractor
21must swear under oath that the records are accurate.
22The bill does not apply to public improvement projects
23funded by the federal government that require federal
24prevailing wage rates. However, unless a federal provision
25applies, if a public improvement project is financed by both a
26state public body and the federal government, then the higher
27of the applicable wage rates shall be paid to the workers.
28The bill also requires that contractors and subcontractors
29keep detailed records for at least three years about the
30workers, the rates paid, and the hours worked for each
31public improvement. The records are public records and must
32be available for inspection. However, workers’ personal
33information is not available to the public for inspection.
34During the public improvement, a contractor or subcontractor
35must present a certified weekly payroll to demonstrate that
-28-1the correct and full wage rate is being paid to workers. The
2contractors and subcontractors must make all workers available
3on-site to officials for interviews so that the records’
4accuracy can be checked. Contractors and subcontractors must
5also post the wage rates for each craft, classification, and
6type of worker in a public place where workers can see the
7posting or at the place where they receive their wages.
8The commissioner is given specific powers for investigation,
9enforcement, and penalization. The commissioner may sue to
10prevent a contractor or subcontractor from being awarded
11a contract for a public improvement when the wage rate
12requirements have not been met. The commissioner is given the
13power to withhold payments if a contractor or subcontractor
14does not produce records upon request and to pay the workers
15directly if the contractor or subcontractor continues to refuse
16to provide records.
17After receiving a complaint, the commissioner shall
18investigate whether there has been a violation. If the
19commissioner determines there has been a violation, the
20contractor or subcontractor must be given notice of that
21violation. The notice is a formal written statement from the
22department of workforce development that states the specific
23violation and the amount of money due as a penalty.
24If a public body has divided up a public improvement to
25avoid having to pay the wage rate, the commissioner shall order
26compliance. A worker who is paid less than the wage rate set by
27this law can sue for the difference in payment and collect the
28difference along with costs and attorney fees in court.
29The contractor or subcontractor shall also have to pay the
30division 50 percent of the amount of underpayment and is liable
31to the worker for punitive damages of up to 5 percent of the
32underpayments for each month the underpayment remains unpaid
33plus costs and attorney fees.
34If a second or subsequent action for underpaying a worker
35is brought against a contractor or subcontractor within a
-29-1three-year period and the contractor or subcontractor is
2liable, the contractor or subcontractor shall pay the division
375 percent of the amount of underpayment, is liable to the
4worker for 10 percent of the penalty for underpayments for each
5month following it that the underpayment remains unpaid, and
6is liable to the worker for triple the difference between the
7amount paid to the worker and the amount due under the wage
8rate set by the commissioner plus costs and attorney fees.
9The commissioner or any interested party has a right of
10action on behalf of any individual who has a right of action
11under the bill. The commissioner may file a lawsuit in trust
12for a worker who assigns the claim and then bring legal action
13to collect the claim. The contractor shall be required to pay
14the expenses for collection of the claim.
15The bill prohibits a person from requesting or demanding
16that a worker pay back, return, donate, contribute, or give
17any part or all of the worker’s wages, salary, or thing of
18value, to any person who asserts that failure to comply with
19the request or demand will prevent the worker from procuring
20or retaining employment. The bill prohibits a person from
21paying, requesting, or authorizing any other person to violate
22the requirements of the bill. However, these provisions do
23not apply to authorized labor organization representatives
24collecting dues or assessments.
25In addition to other penalties under the bill, anyone who
26attempts to get a worker to give up any part of compensation
27on a public improvement by threat not to hire or by threat of
28firing is guilty of a serious misdemeanor. Any agreement to
29work for less than the determined wage rate is not a defense to
30criminal prosecution. A serious misdemeanor is punishable by
31confinement for no more than one year and a fine of at least
32$315 but not more than $1,875.
33If a contractor or subcontractor has violated the bill twice
34within a three-year period, the contractor or subcontractor
35or any company or group associated with the contractor or
-30-1subcontractor shall not be given any public improvement work
2for five years. The department of workforce development
3shall keep a list on its internet site of contractors and
4subcontractors who have violated the bill twice within a
5three-year period and notify public bodies by restricted
6certified mail.
7A contractor or subcontractor who has been notified of
8the second violation has 10 days to request a hearing before
9an administrative law judge. A hearing must be held within
1045 days of the request. If no hearing is requested, the
11contractor is barred from receiving public improvement work and
12its name and information is posted on the department’s internet
13site.
14Apprentices employed on a public improvement project must
15be registered with the federal office of apprenticeship.
16Apprentices must receive the wages set out in the standards of
17apprenticeship and do only the work specified in the trade to
18which they are apprenticed. An apprentice not registered with
19the federal program shall be paid the wage rate the same as any
20other worker.
21The bill may include a state mandate as defined in Code
22section 25B.3. The bill makes inapplicable Code section 25B.2,
23subsection 3, which would relieve a political subdivision from
24complying with a state mandate if funding for the cost of
25the state mandate is not provided or specified. Therefore,
26political subdivisions are required to comply with any state
27mandate included in the bill.
28The bill takes effect January 1, 2022.
-31-je/rn