Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) Where the Labor Compliance Program
requests a determination of the amount of forfeiture, the request shall include
a file or report to the Labor Commissioner which contains at least the
information specified in subparts (1) through (9) below. Appendix D is a
suggested format for a Request for Approval of Forfeiture under this section.
(1) Whether the public work has been accepted
by the awarding body and whether a valid notice of completion has been filed,
the dates if any when those events occurred, and the amount of funds being held
in retention by the Awarding Body;
(2) Any other deadline which if missed would
impede collection;
(3) Evidence of
violation, in narrative form;
(4)
Evidence of violation obtained under section
16432 of these regulations and a
copy of the Audit prepared in accordance with section
16432(e) setting
forth the amounts of unpaid wages and applicable penalties;
(5) Evidence that before the forfeiture was
sent to the Labor Commissioner (A) the contractor and subcontractor were given
the opportunity to explain why there was no violation, or that any violation
was caused by good faith mistake and promptly corrected when brought to the
contractor or subcontractor's attention, and (B) the contractor and
subcontractor either did not do so or failed to convince the Labor Compliance
Program of its position;
(6) Where
the Labor Compliance Program seeks not only wages but also a penalty as part of
the forfeiture, and the contractor or subcontractor has unsuccessfully
contended that the cause of violation was a good faith mistake that was
promptly corrected when brought to the contractor or subcontractor's attention,
a short statement should accompany the proposal for a forfeiture, with a
recommended penalty amount pursuant to Labor Code Section
1775(a);
(7) Where the Labor Compliance Program seeks
only wages or a penalty less than $50 per day as part of the forfeiture because
the contractor or subcontractor has successfully contended that the cause of
the violation was a good faith mistake that was promptly corrected when brought
to the contractor or subcontractor's attention, the file should include the
evidence as to the contractor or subcontractor's knowledge of his or her
obligation, including the program's communication to the contractor or
subcontractor of the obligation in the bid invitations, at the prejob
conference agenda and records, and any other notice given as part of the
contracting process. With the file should be a statement, similar to that
described in (6), and recommended penalty amounts, pursuant to Labor Code
Section
1775(a);
(8) The previous record of the contractor and
subcontractor in meeting their prevailing wage obligations; and
(9) Whether the Labor Compliance Program has
been granted approval on only an interim or temporary basis under sections
16425 or
16426 above or whether it has been
granted extended approval under section
16427 above.
(b) The file or report shall be served on the
Labor Commissioner as soon as practicable after the violation has been
discovered, and not less than 30 days before the final payment, but in no event
not less than 30 days before the expiration of the limitations period set forth
in Labor Code Section
1741.
(c) A copy of the recommended forfeiture and
the file or report shall be served on the contractor and subcontractor at the
same time as it is sent to the Labor Commissioner. The Labor Compliance Program
may exclude from the documents served on the contractor and subcontractor
copies of documents secured from the contractor or subcontractor during an
audit, investigation, or meeting if those are clearly referenced in the file or
report.
(d) The Labor Commissioner
shall affirm, reject, or modify the forfeiture in whole or in part as to the
wages and penalties due.
(e) The
Labor Commissioner's determination of the forfeiture is effective on one of the
two following dates:
(1) For all programs
other than those having extended authority under section
16427 of these regulations, on the
date the Labor Commissioner serves by first class mail, on the Labor Compliance
Program, on the Awarding Body if different, on the contractor and on the
subcontractor, if any, an endorsed copy of the proposed forfeiture, or a newly
drafted forfeiture statement which sets out the amount of forfeiture approved.
Service on the contractor or subcontractor is effective if made on the last
address supplied by the contractor or subcontractor in the record. The Labor
Commissioner's approval, modification or disapproval of the proposed forfeiture
shall be served within 30 days of receipt of the proposed forfeiture.
(2) For programs with extended authority
under section
16427 above, approval is effective
20 days after the requested forfeitures are served upon the Labor Commissioner,
unless the Labor Commissioner serves a notice upon the parties, within that
time period, that this forfeiture request is subject to further review. For
such programs, a notice that approval will follow such a procedure will be
included in the transmittal of the forfeiture request to the contractor. If the
Labor Commissioner notifies the parties of a decision to undertake further
review, the Labor Commissioner's final approval, modification or disapproval of
the proposed forfeiture shall be served within 30 days of the date of notice of
further review.
1. New
section and Appendix filed 2-20-92; operative 3-23-92 (Register 92, No.
13).
2. Amendment of section and repealer of Appendix C filed
10-19-2004; operative 11-18-2004 (Register 2004, No. 43).
3.
Amendment of section and new Appendix D filed 12-22-2008; operative 1-21-2009
(Register 2008, No. 52).
Note: Authority cited: Section 1773.5, Labor Code.
Reference: Sections 1771.5 and 1775, Labor
Code.