HomeMy WebLinkAbout2004-06-21; Parks & Recreation Commission; 604-5; Use of Volunteers/Proposed LegislationAB# 604-5 TITLE:
MTG. DATE: 6-21-04 USE OF VOLUNTEERS/ - PROPOSED LEGISLATION I 0 ACTION I
INFO -
STAFF: BEVERLY 1 I I
RECOMMENDED ACTION:
Accept and file staff report.
ITEM EXPLANATION:
During the May 2004 meeting, the Commission requested an update regarding proposed
legislation in association with the use of volunteers and in particular, requirements to pay
prevailing wage to those volunteers while in public service.
Sue key, Carlsbad’s Community Volunteer Coordinator has provided specific written information
(EX 1) for review by the Commission. Staff will give a verbal update concerning the current
legislation in progress regarding this issue.
EXHIBITS:
1. Memo to Senior Management Analyst (with supporting documentation) June 15, 2004
LIVE - WORK - PLAY - ENJOY!
To: Senior Management AnalysU
From: Community Volunteer Coordinator
Date: 0611 5/2004
Re: Prevailing Wage for Volunteers
Background
Due to a court case, the Department of Industrial Relations is now enforcing provisions of
the Labor Code that were not previously enforced. This enforcement is forcing
government agencies to pay prevailing wages on public works projects, even to those
who desire to volunteer their time and effort. The definition of "public works" projects is
very broad covering all projects except those specifically exempted. The exemptions are:
o
o
o
o
Work performed entirely by volunteer labor.
Work involving structures used primarily by nonprofit community organizations.
Work that will not have an adverse impact on employment.
Work approved for a waiver by the Director of Industrial Relations.
Action
The Community Volunteer Coordinator intended to apply for waivers for City volunteer
projects. However, Assembly Bill 2690 was written to correct the problematic language
and allow volunteers to give of their time. It will apply retroactively, thus covering the City's legal exposure.
AB 2690 has passed the State Assembly. A vote in the State Senate is expected around
June 24. That approval will pass the bill onto the Governor's desk where a prompt
signature is expected.
EXHIBIT 1
To: Regional Board staff
From: DFA
VOLUNTEERS AND PREVAILING WAGES
The Law
Under existing law, the use of volunteer labor is strictly limited. The Labor Code
requires that prevailing wages be paid on public works projects that cost over $1 000.’
“Public works” is defined as “construction, alteration, demolition, installation, or repair
work done under contract and paid for in whole or in part out of public funds.. .”.2 There
is an exception for volunteer labor, but the volunteer labor exception has four restrictions,
as follows:
For the limited purposes of this chapter, “public works” shall not include any
otherwise covered work which meets all the following conditions:
(a) The work is performed entirely by volunteer labor.
(b) The work involves facilities or structures which are, or will be,
used exclusively by, or primarily for or on behalf of, private
nonprofit community organizations including, but not limited to,
charitable, youth, service, veterans, and sports groups or
associations.
(c) The work will not have an adverse impact on employment.
(d) The work is approved by the Director of Industrial Relations
[DIR] as meeting the requirements of this section.
For purposes of subdivision (c), the director shall request information on
whether or not the work will have an adverse impact on employment from the
appropriate local or state organization of duly authorized employee
representatives of workers employed on public works3
How the Law Has Been Applied: Reseeding, Site Cleanup, Etc.
An alarming consequence of the state of the current law is exemplified by a case in
Redding where the Sacramento Watersheds Action Groups received a grant fiom the
Department of Water Resources (DWR) to perform levy restoration work. The non-
profit used volunteer labor to perform willow staking, spreading seeds and mulch,
planting shrubs, operating heavy equipment, site cleanup, off-hauling garbage, and
planting vegetation, among other things. On July 23,2003, DIR determined that such
activities required the payment of prevailing wages.
’ Labor Code Q 177 1. * Labor Code Q 1720. The Department of Industrial Relations (DIR) has determined that this provision
covers grant agreements. (DIR letter to Martin Couwenberg dated Nov 23, 1998 at
http://www.dir.ca.gov/dlsr/Coverage/98-005 .pdf.)
Labor Code Q 1720.4.
Looking at DIR’s posted decisions on volunteer labor, on the web at
http://www.dir.ca.gov/DLSR/PrecedentialAlpha.htm, it is abundantly clear that DIR,
were it to rule, would find that volunteer labor used in other nonpoint source pollution
control, watershed, and restoration activities was subject to prevailing wage
requirements. For example, in May 2001, DIR found that minor landscape improvements
including aeration, top dressing, overseeding and fertilizing of a school football field
performed by some of the high school students did not meet the requirements of the
Labor Code exception for volunteer labor. (See
http://www.dir.ca.gov/dlsr/Coverage/2000-082.pdf .) DIR found that such activities
required payment of prevailing wages.’ The effects of such a ruling and subsequent
enforcement would be devastating for watershed restoration efforts throughout the state.
.
Negative Consequences of the Law’s Enforcement
The penalties for not paying prevailing wages include repayment of such wages plus a
penalty, as well as possible criminal liability for everyone involved. (Labor Code $9
1775, 1777.)
ExamDles of Volunteer Labor Probably Requiring a Determination from DIR - willow staking - spreading seeds and mulch - planting shrubs - operating heavy equipment - site cleanup - off-hauling garbage - planting vegetation - aeration of a field - top dressing of a field - overseeding and fertilizing a field - removal of invasive/exotic vegetation - stream bank stabilizatiodrestoration (mulching, planting native vegetation, etc.) - instream restoration (sediment, trash, and structure removal) - “hands-on” student projects led by volunteers, depending on the project - any and all “pre-constructionyy work, including inspection and land surveying work, if
it’s pre-construction
8
.
Labor Code provisions
1771, Except for public works projects of one thousand dollars
($1,000) or less, not less than the general prevailing rate of per
diem wages ... shall be paid to all workers employed
on public works.
This section is applicable only to work performed under contract,
and is not applicable to work carried out by a public agency with its
own forces. This section is applicable to contracts let for
maintenance work.
1720. (a) . . . "public works" means:
(1 ) Construction, alteration, demolition, installation, or repair
work done under contract and paid for in whole or in part out of
public funds, except work done directly by any public utility company
. . .. For purposes of this paragraph, "construction" includes
work performed during the design and preconstruction phases of
construction including, but not limited to, inspection and land
surveying work.
(2) Work done for irrigation, utility, reclamation, and
improvement districts, and other districts of this type. "Public
work" does not include the operation of the irrigation or drainage
system of any irrigation or reclamation district, except as used in
Section 1778 relating to retaining wages.
(3) Street, sewer, or other improvement work ...
(4) The laying of carpet . . ..
(5) The laying of carpet . . ..
(6) Public transportation . . . .
(b) For purposes of this section, "paid for in whole or in part
out of public funds" means all of the following:
(1) The payment of money or the equivalent of money by the state
or political subdivision directly to or on behalf of the public works
contractor, subcontractor, or developer.
subdivision in execution of the project.
(2) Performance of construction work by the state or political
(3) Transfer by the state or political subdivision of an asset of
value for less than fair market price.
(4) Fees, costs, rents, insurance or bond premiums, loans,
interest rates, or other obligations that would normally be required
in the execution of the contract, that are paid, reduced, charged at
less than fair market value, waived, or forgiven by the state or
political subdivision.
(5) Money loaned by the state or political subdivision that is to
be repaid on a contingent basis.
(6) Credits that are applied by the state or political subdivision
against repayment obligations to the state or political subdivision.
(c) Notwithstanding subdivision (b):
(I) Private residential projects ....
(2) If the state or a political subdivision requires a private
developer . . . then only the public improvement work shall thereby
become subject to this chapter.
(3) If the state or a political subdivision reimburses a private
developer . .. de minimis ..., an otherwise private development project shall not thereby become
subject to the requirements of this chapter.
(4) The construction or rehabilitation of affordable housing units.. ..
(5) "Paid for in whole or in part out of public funds" does not
include tax credits . . . .
(6) Unless otherwise required by a public funding program, the
construction or rehabilitation of privately owned residential
projects . . ..
the following projects shall not, solely by reason of this section,
be subject to the requirements of this chapter:
(1) Qualified residential rental projects, . . ..
(2) Single-family residential projects . . ..
(3) Low-income housing projects . . .
(e) If a statute, other than this section, or a regulation, other
(d) Notwithstanding any provision of this section to the contrary,
than a regulation adopted pursuant to this section, or an ordinance
or a contract applies this chapter to a project, the exclusions set
forth in subdivision (d) do not apply to that project.
' (9 For purposes of this section, references to the Internal
(9) The amendments made to this section by either Chapter 938 of
Revenue Code mean . . ..
the Statutes of 2001 or the act adding this subdivision shall not be
construed to preempt local ordinances requiring the payment of
prevailing wages on housing projects.
1720.4. For the limited purposes of this chapter, "public works"
shall not include any otherwise covered work which meets all the
following conditions:
(a) The work is performed entirely by volunteer labor.
(b) The work involves facilities or structures which are, or will
be, used exclusively by, or primarily for or on behalf of, private
nonprofit community organizations including, but not limited to,
charitable, youth, senrice, veterans, and sports groups or
associations.
(c) The work will not have an adverse impact on employment.
(d) The work is approved by the Director of Industrial Relations
For purposes of subdivision (c), the director shall request
as meeting the requirements of this section.
information on whether or not the work will have an adverse impact on
employment from the appropriate local or state organization of duly
authorized employee representatives of workers employed on public
works.
2004 ARGUMENTS FOR LAND CONSERVATION
PREVAILING WAGE FACT SHEET AND TALKING POINTS
Existing law defines a project as "public work" if the project involves construction, alteration,
demolition, installation, or repair work that is done under contract and paid for in whole or in part
out of public funds (including grants and bond dollars). General prevailing wages must be paid to
workers engaged in public work.
Existing law also states that, "Legal and market disincentives and impediments need to be eliminated
in order to establish an optimum environment for citizen initiative and voluhteer action."
A recent decision by the Department of Industrial Relations jeopardizes resource Conservation work
that is funded wholly or in part by public funds by applying the prevailing wage law to volunteerism.
The DIR determination also applies to special districts, local governments and public agencies such
as the Coastal Conservancy and others that fund these projects.
This determination presents significant challenges to nonprofit resource conservation groups using
volunteers for a variety of work associated with restoration, preservation, enhancement,
management, maintenance, construction, and revegetation of open space where public finds are
involved - or if occurring upon public lands.
Resource conservation nonprofits depend on volunteerism as an essential element for the successful
completion of public works projects. Many organizations will be unable to continue with their
community outreach, volunteer involvement, and public education programs in their current capacity
under the DIR's prevailing wage ruling.
The ability of many nonprofit resource conservation organizations to qualify for public grants
actually depends on their use of volunteers. Limiting the ability of resource conservation
organizations to use volunteers puts many of these groups, and ultimately the health of their
community, at risk.
DIR also prohibits students from participating in most public works projects unless they are paid
prevailing wages. This removes many opportunities for students to use real world settings as a venue
for learning, and greatly impairs the ability of students to become involved in their communities -
completely contradicting actions called for in the State's Strategic Initiatives for Enhancing
Environmental Education.
0 Labor Code provides an exemption from the requirement to pay prevailing wages for public works,
but this exemption is narrow and does not address most volunteer efforts throughout California.
0 Existing law must be adjusted to permit community action and public education projects, such as
resource conservation, to receive public funds even when using volunteers.
4AB 2690 Assembly Bill - AMENDED .$ Page 1 Of3
' BILL NUMBER: AB 2690 AMENDEO
BILL mx'r :i'
AMENDED IN ASSEMBLY MAY 20, 2004
AMENDED IN ASSEMBLY APRIL 26, 2004
AMENDED IN ASSEMBLY APRIL 12, 2004
INTRODUCED BY Assembly Member Hancock
FEBRUARY 20, 2004
An act to -.z 1739.5 TnA :?'-
repeal and add Section 1720.4 to the Labor Code, relating to
public works.
LEGISLATIVE COUNSEL'S DIGEST
AB 2690, as amended, Hancock. Public works: funds.
Existing law defines "public works," for purposes of regulating
public works contracts, as, among other things, construction,
alteration, demolition, installation, or repair work done under
contract and paid for in whole or in part out of public funds.
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Otherwise covered work that meets certain criteria,
including work that is performed entirely by volunteer labor, is
excluded from this definition of "public works. I' Pursuant to
existing law, all workers employed on public works shall be paid not
less than the general prevailing rate of per diem wages for work, except for public works projects of $1,000 or less.
This bill would exempt from these provisions any work that is
performed by a volunteer, a volunteer coordinator, or by members of
the California Conservation Corps or of certified Community
Conservation Corps.
The bill would apply this exemption retroactively to otherwise
covered work concluded on or after January 1, 2002, to the extent
permitted by law.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
a
file://C:\Documents%20and%2OSettings\spars\Loca~%2OSettings\Tem~\~~269O - verq ... 06/14/2004
# ,*AB 2690 Assembly Bill - AMENDED .l ,c *, 47
.$ work concluded on or after January 1, 2002, to the extent permitted
by law. daa&i-
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