SENATE BILL 1178
48th legislature - STATE OF NEW MEXICO - first session, 2007
INTRODUCED BY
Linda M. Lopez
AN ACT
RELATING TO PUBLIC WORKS; REQUIRING EMPLOYERS TO PAY ALL FRINGE BENEFITS OR MAKE PAYMENTS TO THE PUBLIC WORKS HEALTH CARE COVERAGE FUND; CREATING A FUND; MAKING AN APPROPRIATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 13-4-12 NMSA 1978 (being Laws 1965, Chapter 35, Section 2, as amended) is amended to read:
"13-4-12. DEFINITION OF THE TERM "WAGES".--
A. As used in Section 13-4-11 NMSA 1978, "wages", "scale of wages", "wage rates", "minimum wages", [and] "prevailing wages", "fringe benefits", "scale of fringe benefits", "fringe benefit rates", "minimum fringe benefit rates" and "prevailing fringe benefits" include:
(1) the basic hourly rate of pay for a class or classification of laborer or mechanic performing work under the Public Works Minimum Wage Act; and
(2) the amount of:
(a) the rate of contribution irrevocably made by a contractor, subcontractor, employer or any person acting as a contractor to a trustee or a third person pursuant to a financially responsible fund, plan or program for fringe benefits as described in Subparagraph (b) of this paragraph; and
(b) the rate of costs to a contractor, subcontractor, employer or a person acting as a contractor that reasonably may be anticipated in providing fringe benefits to laborers and mechanics pursuant to an enforceable commitment to carry out a financially responsible plan or program that was communicated in writing to the laborers and mechanics affected for: 1) medical [or hospital care] benefit plans; 2) pensions on retirement or death; 3) compensation for injuries or illness resulting from occupational activity; or 4) insurance to provide for any of the foregoing; and for: 5) unemployment benefits; 6) life insurance; 7) disability and sickness insurance; 8) accident insurance; 9) vacation and holiday pay; 10) costs of apprenticeship or other similar programs; or for 11) other bona fide fringe benefits; but only where the contractor, subcontractor, employer or a person acting as a contractor is not required by other federal, state or local law to provide any of the foregoing or similar benefits.
B. The obligation of a contractor, subcontractor, employer or person acting as a contractor to make payment in accordance with the prevailing wage determinations of the director of the labor and industrial division of the labor department, insofar as Section 13-4-11 NMSA 1978 or other sections of legislative acts incorporating Section 13-4-11 NMSA 1978 are concerned, [may] shall be discharged by the making of payments consistent with Subsection B of Section 50-4-2 NMSA 1978, except that the frequency of payments shall comply with Subsection A of Section 13-4-11 NMSA 1978. The payments shall include:
(1) payment of the base wage rate as the director of the labor and industrial division of the labor department has determined to be prevailing for the appropriate class of laborers or mechanics; and
(2) the making of contributions of a type referred to in Subparagraph (a) of Paragraph (2) of Subsection A of this section; or
(3) the assumption of an enforceable commitment to bear the costs of a plan or program of a type referred to in Subparagraph (b) of Paragraph (2) of Subsection A of this section; or
(4) any combination of Paragraphs (2) and (3) of this subsection where the aggregate of any payments or contributions and costs therefor is not less than the rate of pay described in Section 13-4-11 NMSA 1978 plus the amount referred to in this section; and
(5) fringe benefit contributions for medical benefit plans required under the Public Works Minimum Wage Act shall not be made in cash or other form except as provided by this section.
C. As an alternative to making required medical benefit plan fringe benefit contributions to a private bona fide financially responsible fund, plan or program, a contractor, subcontractor, employer or person acting as a contractor may submit payments for a medical benefit plan fringe benefit contribution required by this section to the director of the labor and industrial division of the labor department in appropriate amounts as required by the applicable prevailing wage determination. Such payments shall be accepted as required medical benefit plan fringe benefit contributions and shall be forwarded by the director to the public works health care coverage fund.
D. The director shall develop appropriate criteria and guidelines for determining whether a plan, fund or program is bona fide for the purposes of this section.
[C.] E. The provisions of this section shall not affect existing contracts or contracts resulting from bids outstanding on July 15, 1965."
Section 2. Section 13-4-13 NMSA 1978 (being Laws 1965, Chapter 35, Section 3, as amended) is amended to read:
"13-4-13. FAILURE TO PAY MINIMUM WAGE OR FRINGE
BENEFITS--TERMINATION OF CONTRACT.--Every contract within the scope of the Public Works Minimum Wage Act shall contain further provision that in the event it is found by the director of the labor and industrial division of the labor department that any laborer or mechanic employed on the site of the project has been or is being paid as a result of a [willful] violation a rate of wages or fringe benefits less than the rate of wages or fringe benefits required, the contracting agency may, by written notice to the contractor, subcontractor, employer or person acting as a contractor, terminate [their] the right to proceed with the work or such part of the work as to which there has been a [willful] failure to pay the required [wages] wage rates or fringe benefits, and the contracting agency may prosecute the work to completion by contract or otherwise, and the contractor or person acting as a contractor and [his] the contractor's or person's sureties shall be liable to the state for any excess costs occasioned thereby. Any party receiving notice of termination of [his] a project or subcontract under the provisions of this section may appeal the finding of the director as provided in the Public Works Minimum Wage Act."
Section 3. Section 13-4-14 NMSA 1978 (being Laws 1965, Chapter 35, Section 4, as amended) is amended to read:
"13-4-14. PAYMENT OF WAGES AND FRINGE BENEFITS FROM FUNDS WITHHELD--LIST OF CONTRACTORS VIOLATING ACT--ADDITIONAL RIGHT OF WAGE EARNERS.--
A. The director of the labor and industrial division of the labor department shall certify to the contracting agency the names of persons or firms the director has found to have disregarded their obligations to employees under the Public Works Minimum Wage Act and the amount of arrears. The contracting agency shall pay or cause to be paid to the affected laborers and mechanics, from any accrued payments withheld under the terms of the contract or designated for the project, any wages found due such workers pursuant to the Public Works Minimum Wage Act. The director shall, after notice to the affected persons, distribute a list to all departments of the state giving the names of persons or firms the director has found to have [willfully] violated the Public Works Minimum Wage Act. No contract or project shall be awarded to the persons or firms appearing on this list or to any firm, corporation, partnership or association in which the persons or firms have an interest until three years have elapsed from the date of publication of the list containing the names of the persons or firms. A person to be included on the list to be distributed may appeal the finding of the director as provided in the Public Works Minimum Wage Act.
B. If the accrued payments withheld under the terms of the contract, as mentioned in Subsection A of this section, are insufficient to reimburse all the laborers and mechanics with respect to whom there has been a failure to pay the wages required pursuant to the Public Works Minimum Wage Act, the laborers and mechanics shall have the right of action or intervention or both against the contractor or person acting as a contractor and [his] the contractor's or person's sureties, conferred by law upon such persons furnishing labor and materials, and, in such proceeding, it shall be no defense that the laborers and mechanics accepted or agreed to less than the required rate of wages, fringe benefits or voluntarily made refunds. The director of the labor and industrial division of the labor department shall refer such matters to the district attorney in the appropriate county, and it is the duty and responsibility of the district attorney to bring civil suit for wages or fringe benefits due and liquidated damages provided for in Subsection C of this section.
C. In the event of any violation of the Public Works Minimum Wage Act or implementing rules, the contractor, subcontractor, employer or a person acting as a contractor responsible for the violation shall be liable to any affected employee for the employee's unpaid wages. In addition, the contractor, subcontractor, employer or a person acting as a contractor shall be liable to any affected employee for liquidated damages beginning with the first day of covered employment in the sum of one hundred dollars [($100.00)] ($100) for each calendar day on which a contractor, subcontractor, employer or person acting as a contractor has [willfully] required or permitted an individual laborer or mechanic to work in violation of the provisions of the Public Works Minimum Wage Act.
D. In an action brought pursuant to Subsection C of this section, the court may award, in addition to all other remedies, attorney fees and costs to an employee adversely affected by a violation of the Public Works Minimum Wage Act by a contractor, subcontractor, [employee] employer or a person acting as a contractor."
Section 4. [NEW MATERIAL] PUBLIC WORKS HEALTH CARE COVERAGE FUND ESTABLISHED.--The "public works health care coverage fund" is created in the state treasury. The fund consists of money received by the human services department through legislative appropriations to the fund, gifts, grants, donations and bequests. Money in the fund shall not revert to any other fund at the end of a fiscal year. The fund shall be administered by the human services department, and money in the fund is appropriated to the human services department to provide health insurance to residents of the state. Money in the fund shall be disbursed on warrants signed by the secretary of finance and administration pursuant to vouchers signed by the secretary of human services or the secretary's authorized representative.
Section 5. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2007.
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