Substitute House Bill No. 7063
Substitute House Bill No. 7063
PUBLIC ACT NO. 93-392
AN ACT INCREASING PENALTIES FOR PREVAILING WAGE
AND WAGE AND HOUR VIOLATIONS AND ALLOCATING MONEY
TO ENFORCEMENT.
Section 1. Section 31-53 of the general
statutes is repealed and the following is
substituted in lieu thereof:
(a) Each contract for the construction,
remodeling, refinishing, refurbishing,
rehabilitation, alteration or repair of any public
works project by the state or any of its agents,
or by any political subdivision of the state or
any of its agents, shall contain the following
provision: "The wages paid on an hourly basis to
any mechanic, laborer or workman employed upon the
work herein contracted to be done and the amount
of payment or contribution paid or payable on
behalf of each such employee to any employee
welfare fund, as defined in subsection (h) of THIS
section, [31-53 of the general statutes,] shall be
at a rate equal to the rate customary or
prevailing for the same work in the same trade or
occupation in the town in which such public works
project is being constructed. Any contractor who
is not obligated by agreement to make payment or
contribution on behalf of such employees to any
such employee welfare fund shall pay to each
employee as part of his wages the amount of
payment or contribution for his classification on
each pay day."
(b) Any person who knowingly or wilfully
employs any mechanic, laborer or workman in the
construction, remodeling, refinishing,
refurbishing, rehabilitation, alteration or repair
of any public works project for or on behalf of
the state or any of its agents, or any political
subdivision of the state or any of its agents, at
a rate of wage on an hourly basis which is less
than the rate customary or prevailing for the same
work in the same trade or occupation in the town
in which such public works project is being
constructed, remodeled, refinished, refurbished,
rehabilitated, altered or repaired, or who fails
to pay the amount of payment or contributions paid
or payable on behalf of each such employee to any
employee welfare fund, or in lieu thereof to the
employee, as provided by subsection (a), shall be
fined not less than two thousand five hundred
dollars but not more than five thousand dollars
for each offense. In addition, if it is found by
the contracting officer representing the state or
political subdivision thereof that any mechanic,
laborer or workman employed by the contractor or
any subcontractor directly on the site for the
work covered by the contract has been or is being
paid a rate of wages less than the rate of wages
required by the contract to be paid as required by
this section, the state or contracting political
subdivision thereof may, by written notice to the
contractor, terminate such contractor's right to
proceed with the work or such part of the work as
to which there has been a failure to pay said
required wages and to prosecute the work to
completion by contract or otherwise, and the
contractor and his sureties shall be liable to the
state or the contracting political subdivision for
any excess costs occasioned the state or the
contracting political subdivision thereby. The
contracting department of the state or the
political subdivision thereof shall within two
days after taking such action notify the labor
commissioner in writing of the name of the
contractor or subcontractor, the project involved,
the location of the work, the violations involved,
the date the contract was terminated, and steps
taken to collect the required wages.
(c) The labor commissioner may make complaint
to the proper prosecuting authorities for the
violation of any provision of subsection (b).
(d) For the purpose of predetermining the
prevailing rate of wage on an hourly basis and the
amount of payment or contributions paid or payable
on behalf of each employee to any employee welfare
fund, as defined in subsection (h), in each town
where such contract is to be performed, the labor
commissioner shall (1) hold a hearing at any
required time to determine the prevailing rate of
wages on an hourly basis and the amount of payment
or contributions paid or payable on behalf of each
employee to any employee welfare fund, as defined
in subsection (h), upon any public work within any
specified area, and shall establish
classifications of skilled, semiskilled and
ordinary labor, or (2) adopt and use such
appropriate and applicable prevailing wage rate
determinations as have been made by the Secretary
of Labor of the United States under the provisions
of the Davis-Bacon Act, as amended.
(e) The labor commissioner shall determine the
prevailing rate of wages on an hourly basis and
the amount of payment or contributions paid or
payable on behalf of such employee to any employee
welfare fund, as defined in subsection (h), in
each locality where any such public work is to be
constructed, and the agent empowered to let such
contract shall contact the labor commissioner, at
least ten but not more than twenty days prior to
the date such contracts will be advertised for
bid, to ascertain the proper rate of wages and
amount of employee welfare fund payments or
contributions and shall include such rate of wage
on an hourly basis and the amount of payment or
contributions paid or payable on behalf of each
employee to any employee welfare fund, as defined
in subsection (h), or in lieu thereof the amount
to be paid directly to each employee for such
payment or contributions as provided in subsection
(a) for all classifications of labor in the
proposal for the contract. The rate of wage on an
hourly basis and the amount of payment or
contributions to any employee welfare fund, as
defined in subsection (h), or cash in lieu
thereof, as provided in subsection (a), shall, at
all times, be considered as the minimum rate for
the classification for which it was established.
Prior to the award of any contract subject to the
provisions of this section, such agent shall
certify in writing to the labor commissioner the
total dollar amount of work to be done in
connection with such public works project,
regardless of whether such project consists of one
or more contracts. Upon the award of any contract
subject to the provisions of this section, the
contractor to whom such contract is awarded shall
certify, under oath, to the labor commissioner the
pay scale to be used by such contractor and any of
his subcontractors for work to be performed under
such contract.
(f) Each employer subject to the provisions of
this section or section 31-54 shall (1) keep,
maintain and preserve such records relating to the
wages and hours worked by each employee and a
schedule of the occupation or work classification
at which each mechanic, laborer or workman on the
project is employed during each work day and week
in such manner and form as the labor commissioner
establishes to assure the proper payments due to
such employees or employee welfare funds under
this section or section 31-54, AND (2) SUBMIT
WEEKLY TO THE CONTRACTING AGENCY A CERTIFIED
PAYROLL WHICH SHALL CONSIST OF A COMPLETE COPY OF
SUCH RECORDS ACCOMPANIED BY A STATEMENT SIGNED BY
THE EMPLOYER WHICH INDICATES THAT (A) SUCH RECORDS
ARE CORRECT; (B) THE RATE OF WAGES PAID TO EACH
MECHANIC, LABORER OR WORKMAN AND THE AMOUNT OF
PAYMENT OR CONTRIBUTIONS PAID OR PAYABLE ON BEHALF
OF EACH SUCH EMPLOYEE TO ANY EMPLOYEE WELFARE
FUND, AS DEFINED IN SUBSECTION (h) OF THIS
SECTION, ARE NOT LESS THAN THE PREVAILING RATE OF
WAGES AND THE AMOUNT OF PAYMENT OR CONTRIBUTIONS
PAID OR PAYABLE ON BEHALF OF EACH SUCH EMPLOYEE TO
ANY EMPLOYEE WELFARE FUND, AS DETERMINED BY THE
LABOR COMMISSIONER PURSUANT TO SUBSECTION (d) OF
THIS SECTION, AND NOT LESS THAN THOSE REQUIRED BY
THE CONTRACT TO BE PAID; (C) THE EMPLOYER HAS
COMPLIED WITH THE PROVISIONS OF THIS SECTION AND
SECTION 31-54; (D) EACH SUCH EMPLOYEE IS COVERED
BY A WORKERS' COMPENSATION INSURANCE POLICY FOR
THE DURATION OF HIS EMPLOYMENT, WHICH SHALL BE
DEMONSTRATED BY SUBMITTING TO THE CONTRACTING
AGENCY THE NAME OF THE WORKERS' COMPENSATION
INSURANCE CARRIER COVERING EACH SUCH EMPLOYEE, THE
EFFECTIVE AND EXPIRATION DATES OF EACH POLICY AND
EACH POLICY NUMBER; (E) THE EMPLOYER DOES NOT
RECEIVE KICKBACKS, AS DEFINED IN 41 USC 52, FROM
ANY EMPLOYEE OR EMPLOYEE WELFARE FUND; AND (F)
PURSUANT TO THE PROVISIONS OF SECTION 7 OF THIS
ACT, THE EMPLOYER IS AWARE THAT FILING A CERTIFIED
PAYROLL WHICH HE KNOWS TO BE FALSE IS A CLASS D
FELONY FOR WHICH THE EMPLOYER MAY BE FINED UP TO
FIVE THOUSAND DOLLARS, IMPRISONED FOR UP TO FIVE
YEARS, OR BOTH. THIS SUBSECTION SHALL NOT BE
CONSTRUED TO PROHIBIT A GENERAL CONTRACTOR FROM
RELYING ON THE CERTIFICATION OF A LOWER TIER
SUBCONTRACTOR, PROVIDED THE GENERAL CONTRACTOR
SHALL NOT BE EXEMPTED FROM THE PROVISIONS OF
SECTION 7 OF THIS ACT IF HE KNOWINGLY RELIES UPON
A SUBCONTRACTOR'S FALSE CERTIFICATION.
NOTWITHSTANDING THE PROVISIONS OF SECTION 1-19,
THE CERTIFIED PAYROLL SHALL BE CONSIDERED A PUBLIC
RECORD AND EVERY PERSON SHALL HAVE THE RIGHT TO
INSPECT AND COPY SUCH RECORDS IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 1-15. The provisions of
sections 31-59 (a), 31-59 (b), 31-66 and 31-69
which are not inconsistent with the provisions of
this section or section 31-54 shall apply to this
section.
(g) The provisions of this section shall not
apply where the total cost of all work to be
performed by all contractors and subcontractors in
connection with new construction of any public
works project is less than four hundred thousand
dollars or where the total cost of all work to be
performed by all contractors and subcontractors in
connection with any remodeling, refinishing,
refurbishing, rehabilitation, alteration or repair
of any public works project is less than one
hundred thousand dollars.
(h) As used in this section, section 31-54 and
section 31-89a, "employee welfare fund" means any
trust fund established by one or more employers
and one or more labor organizations to provide
from moneys in the fund, whether through the
purchase of insurance or annuity contracts or
otherwise, benefits under an employee welfare
plan; provided such term shall not include any
such fund where the trustee, or all of the
trustees, are subject to supervision by the
commissioner of banking of this state or any other
state or the Comptroller of the Currency of the
United States or the Board of Governors of the
Federal Reserve System, and "benefits under an
employee welfare plan" means one or more benefits
or services under any plan established or
maintained for employees or their families or
dependents, or for both, including, but not
limited to, medical, surgical or hospital care
benefits; benefits in the event of sickness,
accident, disability or death; benefits in the
event of unemployment, or retirement benefits.
Sec. 2. Section 31-53a of the general statutes
is repealed and the following is substituted in
lieu thereof:
(a) The state comptroller or the contracting
authority acting pursuant to section 31-53, AS
AMENDED BY SECTION 1 OF THIS ACT, is hereby
authorized and directed to pay to mechanics,
laborers and workmen from any accrued payments
withheld under the terms of a contract terminated
pursuant to subsection (b) of SAID section 31-53
any wages found to be due such mechanics, laborers
and workmen pursuant to said section 31-53. The
labor commissioner is further authorized and
directed to distribute a list to all departments
of the state and political subdivisions thereof
giving the names of persons or firms whom he has
found to have disregarded their obligations under
said section 31-53 AND SECTION 31-76c to employees
and subcontractors ON PUBLIC WORKS PROJECTS or to
have been barred from federal government contracts
in accordance with the provisions of the
Davis-Bacon Act, 49 Stat. 1011 (1931), 40 USC
276a-2. No contract shall be awarded by the state
or any of its political subdivisions to the
persons or firms appearing on this list or to any
firm, corporation, partnership, or association in
which such persons or firms have an interest until
[five years have] A PERIOD OF UP TO THREE YEARS,
AS DETERMINED BY THE LABOR COMMISSIONER HAS
elapsed from the date of publication of the list
containing the names of such persons or firms.
(b) If the accrued payments withheld under the
terms of a contract terminated pursuant to
subsection (b) of section 31-53, AS AMENDED BY
SECTION 1 OF THIS ACT, are insufficient to
reimburse all the mechanics, laborers and workmen
with respect to whom there has been a failure to
pay the wages required pursuant to said section
31-53, such mechanics, laborers and workmen shall
have the right of action and of intervention
against the contractor and his sureties conferred
by law upon persons furnishing labor or materials,
and in such proceedings it shall be no defense
that such mechanics, laborers and workmen accepted
or agreed to accept less than the required wages
or that such persons voluntarily made refunds.
Sec. 3. Section 31-69 of the general statutes
is repealed and the following is substituted in
lieu thereof:
(a) Any employer or his agent, or the officer
or agent of any corporation, who discharges or in
any other manner discriminates against any
employee because such employee has served or is
about to serve on a wage board or has testified or
is about to testify before any wage board or in
any other investigation or proceeding under or
related to this part, or because such employer
believes that such employee may serve on any wage
board or may testify before any wage board or in
any investigation or proceeding under this part,
shall be fined not less than fifty dollars nor
more than two hundred dollars.
(b) Any employer or the officer or agent of
any corporation who pays or agrees to pay to any
employee less than the rates applicable to such
employee under the provisions of this part or a
minimum fair wage order shall be [fined not less
than fifty dollars nor more than two hundred
dollars or imprisoned not less than ten days nor
more than ninety days or be both fined and
imprisoned, and each week for any day of which
such employee has been paid less than the rate
applicable to him under this part or under a
minimum fair wage order shall constitute a
separate offense as to each employee so paid.] (1)
FINED NOT LESS THAN TWO THOUSAND NOR MORE THAN
FIVE THOUSAND DOLLARS OR IMPRISONED NOT MORE THAN
FIVE YEARS OR BOTH FOR EACH OFFENSE IF THE TOTAL
AMOUNT OF ALL UNPAID WAGES OWED TO AN EMPLOYEE IS
MORE THAN TWO THOUSAND DOLLARS; (2) FINED NOT LESS
THAN ONE THOUSAND NOR MORE THAN TWO THOUSAND
DOLLARS OR IMPRISONED NOT MORE THAN ONE YEAR OR
BOTH FOR EACH OFFENSE IF THE TOTAL AMOUNT OF ALL
UNPAID WAGES OWED TO AN EMPLOYEE IS MORE THAN ONE
THOUSAND DOLLARS BUT NOT MORE THAN TWO THOUSAND
DOLLARS; (3) FINED NOT LESS THAN FIVE HUNDRED NOR
MORE THAN ONE THOUSAND DOLLARS OR IMPRISONED NOT
MORE THAN SIX MONTHS OR BOTH FOR EACH OFFENSE IF
THE TOTAL AMOUNT OF ALL UNPAID WAGES OWED TO AN
EMPLOYEE IS MORE THAN FIVE HUNDRED BUT NOT MORE
THAN ONE THOUSAND DOLLARS; OR (4) FINED NOT LESS
THAN TWO HUNDRED NOR MORE THAN FIVE HUNDRED
DOLLARS OR IMPRISONED NOT MORE THAN THREE MONTHS
OR BOTH FOR EACH OFFENSE IF THE TOTAL AMOUNT OF
ALL UNPAID WAGES OWED TO AN EMPLOYEE IS FIVE
HUNDRED DOLLARS OR LESS.
(c) Any employer, his officer or agent, or the
officer or agent of any corporation, firm or
partnership, who fails to keep the records
required under this part or by regulation made in
accordance with this part or to furnish such
records to the commissioner or any authorized
representative of the commissioner, upon request,
or who refuses to admit the commissioner or his
authorized representative to his place of
employment or who hinders or delays the
commissioner or his authorized representative in
the performance of his duties in the enforcement
of this part shall be fined not less than twenty-
five dollars nor more than one hundred dollars,
and each day of such failure to keep the records
required under this part or to furnish the same to
the commissioner or any authorized representative
of the commissioner shall constitute a separate
offense, and each day of refusal to admit or of
hindering or delaying the commissioner or his
authorized representative shall constitute a
separate offense.
(d) Nothing in this part shall be deemed to
interfere with, impede or in any way diminish the
right of employees to bargain collectively with
their employers through representatives of their
own choosing in order to establish wages or
conditions of work in excess of the applicable
minimum under this part.
Sec. 4. Section 31-71g of the general statutes
is repealed and the following is substituted in
lieu thereof:
Any employer or any officer or agent of an
employer or any other person authorized by an
employer to pay wages who violates any provision
of [sections 31-71a to 31-71i, inclusive,] THIS
PART may be: [fined not less than two hundred nor
more than one thousand dollars or imprisoned not
more than thirty days or both for each offense]
(1) FINED NOT LESS THAN TWO THOUSAND NOR MORE THAN
FIVE THOUSAND DOLLARS OR IMPRISONED NOT MORE THAN
FIVE YEARS OR BOTH FOR EACH OFFENSE IF THE TOTAL
AMOUNT OF ALL UNPAID WAGES OWED TO AN EMPLOYEE IS
MORE THAN TWO THOUSAND DOLLARS; (2) FINED NOT LESS
THAN ONE THOUSAND NOR MORE THAN TWO THOUSAND
DOLLARS OR IMPRISONED NOT MORE THAN ONE YEAR OR
BOTH FOR EACH OFFENSE IF THE TOTAL AMOUNT OF ALL
UNPAID WAGES OWED TO AN EMPLOYEE IS MORE THAN ONE
THOUSAND DOLLARS BUT NOT MORE THAN TWO THOUSAND
DOLLARS; (3) FINED NOT LESS THAN FIVE HUNDRED NOR
MORE THAN ONE THOUSAND DOLLARS OR IMPRISONED NOT
MORE THAN SIX MONTHS OR BOTH FOR EACH OFFENSE IF
THE TOTAL AMOUNT OF ALL UNPAID WAGES OWED TO AN
EMPLOYEE IS MORE THAN FIVE HUNDRED BUT NOT MORE
THAN ONE THOUSAND DOLLARS; OR (4) FINED NOT LESS
THAN TWO HUNDRED NOR MORE THAN FIVE HUNDRED
DOLLARS OR IMPRISONED NOT MORE THAN THREE MONTHS
OR BOTH FOR EACH OFFENSE IF THE TOTAL AMOUNT OF
ALL UNPAID WAGES OWED TO AN EMPLOYEE IS FIVE
HUNDRED DOLLARS OR LESS.
Sec. 5. Section 53a-119 of the general
statutes is amended by adding subdivision (14) as
follows:
(NEW) (14) Failure to pay prevailing rate of
wages. A person is guilty of failing to pay the
prevailing rate of wages when he (A) files a
certified payroll, in accordance with section
31-53, as amended by section 1 of this act, which
he knows is false, in violation of section 7 of
this act, and (B) fails to pay to an employee or
to an employee welfare fund the amount attested to
in the certified payroll with the intent to
convert such amount to his own use or to the use
of a third party.
Sec. 6. Section 53a-157 of the general
statutes is repealed and the following is
substituted in lieu thereof:
(a) A person is guilty of false statement IN
THE SECOND DEGREE when he intentionally makes a
false written statement under oath or pursuant to
a form bearing notice, authorized by law, to the
effect that false statements made therein are
punishable, which he does not believe to be true
and which statement is intended to mislead a
public servant in the performance of his official
function.
(b) False statement IN THE SECOND DEGREE is a
class A misdemeanor.
Sec. 7. (NEW) (a) A person is guilty of false
statement in the first degree when he
intentionally makes a false written statement on a
certified payroll submitted pursuant to section
31-53, as amended by section 1 of this act, which
he does not believe to be true and which statement
is intended to mislead a contracting authority or
the labor commissioner in the exercise of his
authority or the fulfillment of his duties under
chapter 557.
(b) False statement in the first degree is a
class D felony.
Sec. 8. (NEW) In addition to the penalties
provided in part III of chapter 557 and chapter
558 of the general statutes, any employer,
officer, agent or other person who violates any
provision of part III of chapter 557 or chapter
558 of the general statutes, or both, shall be
liable to the labor department for a civil penalty
of one hundred fifty dollars for each violation of
said chapters. The attorney general, upon
complaint of the labor commissioner, shall
institute a civil action to recover such civil
penalty. Any amount recovered shall be deposited
in the general fund and credited to the
appropriation to the labor department, for
personal services, and may be used by the labor
department to employ additional personnel to
enforce the provisions of part III of chapter 557
and chapter 558 of the general statutes.
Sec. 9. (NEW) (a) In the performance of his
duties under part III of chapter 557 and chapter
558 of the general statutes, the labor
commissioner may enter into reciprocal agreements
with the labor department or corresponding agency
of any other state or with the person, board,
officer or commission authorized to act on behalf
of the labor department or corresponding agency,
for the collection in such other state of claims
and judgments for wages based upon violations of
said sections by out-of-state employers who
perform work for this state, its agencies or any
political subdivision of this state.
(b) The labor commissioner may, to the extent
provided for by any reciprocal agreement entered
into pursuant to subsection (a) of this section,
maintain actions in the courts of such other state
for the collection of claims and judgments for
wages and may assign such claims and judgments to
the labor department or agency of such other state
for collection to the extent that an assignment is
permitted or provided for by the law of such state
or by reciprocal agreement.
(c) The commissioner may, upon the written
consent of the labor department or other
corresponding agency of any other state or of a
person, board, officer or commission authorized to
act on behalf of the labor department or
corresponding agency of such other state maintain
actions in the courts of this state upon assigned
claims and judgments for wages arising in such
other state in the same manner and to the same
extent that such actions by the commissioner are
authorized when arising in this state; provided,
such actions may be maintained only in cases where
such other state by law or reciprocal agreement
extends a like comity to cases arising in this
state.
Sec. 10. (NEW) (a) An employer shall not
discharge, discipline, penalize or in any manner
discriminate against any employee because the
employee has filed a claim or instituted or caused
to be instituted any investigation or proceeding
under part III of chapter 557 or chapter 558 of
the general statutes, or has testified or is about
to testify in any such proceeding or because of
the exercise by such employee on behalf of himself
or others of any right afforded by part III of
chapter 557 or chapter 558 of the general
statutes.
(b) Any employee who believes that he has been
discharged, disciplined, penalized or otherwise
discriminated against by any person in violation
of this section may file a compliant with the
labor commissioner alleging violation of the
provisions of subsection (a) of this section. Upon
receipt of any such complaint, the commissioner
shall hold a hearing. After the hearing, the
commissioner shall send each party a written copy
of his decision. The commissioner may award the
employee all appropriate relief including rehiring
or reinstatement to his previous job, payment of
back wages and reestablishment of employee
benefits to which he otherwise would have been
eligible if he had not been discharged,
disciplined, penalized or discriminated against.
Any employee who prevails in such a complaint
shall be awarded reasonable attorney's fees and
costs. Any party aggrieved by the decision of the
commissioner may appeal the decision to the
superior court in accordance with the provisions
of chapter 54 of the general statutes. Sec. 7.
(NEW) (a) An employer shall not discharge,
discipline, penalize or in any manner discriminate
against any employee because the employee has
filed a claim or instituted or caused to be
instituted any investigation or proceeding under
part III of chapter 557 or chapter 558 of the
general statutes, or has testified or is about to
testify in any such proceeding or because of the
exercise by such employee on behalf of himself or
others of any right afforded by part III of
chapter 557 or chapter 558 of the general
statutes.