THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY PERRY, BENNINGHOFF, AUMENT, BLOOM, BOYD, CLYMER, CREIGHTON, CUTLER, EVERETT, FLECK, GILLESPIE, GINGRICH, GROVE, HICKERNELL, KAUFFMAN, F. KELLER, M. K. KELLER, MARSICO, METCALFE, MILLER, MILNE, MOUL, PICKETT, RAPP, ROAE, ROCK, SAYLOR, SCHRODER, SWANGER AND TALLMAN, APRIL 6, 2011

REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, APRIL 6, 2011  

AN ACT

Repealing the act of August 15, 1961 (P.L.987, No.442), entitled

"An act relating to public works contracts; providing for

prevailing wages; imposing duties upon the Secretary of Labor

and Industry; providing remedies, penalties and repealing

existing laws."

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  The act of August 15, 1961 (P.L.987, No.442),

known as the Pennsylvania Prevailing Wage Act, is repealed:

[AN ACT

Relating to public works contracts; providing for prevailing

wages; imposing duties upon the Secretary of Labor and

Industry; providing remedies, penalties and repealing

existing laws.

TABLE OF CONTENTS

Section 1.  Short Title.

Section 2.  Definitions.

Section 2.1. Advisory Board, Powers and Duties.

Section 2.2. Appeals Board Powers and Duties.

Section 3.  Specifications.

Section 4.  Duty of Public Body.

Section 5.  Prevailing Wage.

Section 6.  Duty of Contractor.

Section 7.  Duty of Secretary.

Section 8.  Review of Rates, Petition and Hearing.

Section 9.  Posting of Rates.

Section 10.  Duty of Public Body.

Section 11.  Remedies and Penalties.

Section 12.  Failure to Comply, Termination.

Section 13.  Workmen's Rights.

Section 14.  Rules and Regulations.

Section 15.  Application of Act.

Section 16.  Repealer.

Section 17.  Effective Date.

Section 1.  Short Title.--This act shall be known and may be

cited as the "Pennsylvania Prevailing Wage Act."

Section 2.  Definitions.--As used in this act--

(1)  "Department" means Department of Labor and Industry of

the Commonwealth of Pennsylvania.

(2)  "Locality" means any political subdivision, or

combination of the same, within the county in which the public

work is to be performed. When no workmen for which a prevailing

minimum wage is to be determined hereunder are employed in the

locality, the locality may be extended to include adjoining

political subdivisions where such workmen are employed in those

crafts or trades for which there are no workmen employed in the

locality as otherwise herein defined.

(3)  "Maintenance work" means the repair of existing

facilities when the size, type or extent of such facilities is

not thereby changed or increased.

(4)  "Public body" means the Commonwealth of Pennsylvania,

any of its political subdivisions, any authority created by the

General Assembly of the Commonwealth of Pennsylvania and any

instrumentality or agency of the Commonwealth of Pennsylvania.

(5)  "Public work" means construction, reconstruction,

demolition, alteration and/or repair work other than maintenance

work, done under contract and paid for in whole or in part out

of the funds of a public body where the estimated cost of the

total project is in excess of twenty-five thousand dollars

($25,000), but shall not include work performed under a

rehabilitation or manpower training program.

(6)  "Secretary" means the Secretary of Labor and Industry or

his duly authorized deputy or representative.

(7)  "Workman" includes laborer, mechanic, skilled and semi-

skilled laborer and apprentices employed by any contractor or

subcontractor and engaged in the performance of services

directly upon the public work project, regardless of whether

their work becomes a component part thereof, but does not

include material suppliers or their employes who do not perform

services at the job site.

(8)  "Work performed under a rehabilitation program," means

work arranged by and at a State institution primarily for

teaching and upgrading the skills and employment opportunities

of the inmates of such institutions.

(9)  "Advisory Board" means the board created by section 2.1

of this act.

(10)  "Appeals Board" means the board created by section 2.2

of this act. ((10) added Aug. 9, 1963, P.L.653, No.342)

Section 3.  Specifications.--The specifications for every

contract for any public work to which any public body is a

party, shall contain a provision stating the minimum wage rate

that must be paid to the workmen employed in the performance of

the contract.

Section 4.  Duty of Public Body.--It shall be the duty of

every public body which proposes the making of a contract for

any project of public work to determine from the secretary the

prevailing minimum wage rates which shall be paid by the

contractor to the workmen upon such project. Reference to such

prevailing minimum rates shall be published in the notice issued

for the purpose of securing bids for such project of public

work. Whenever any contract for a project of public work is

entered into, the prevailing minimum wages as determined by the

secretary shall be incorporated into and made a part of such

contract and shall not be altered during the period such

contract is in force.

Section 5.  Prevailing Wage.--Not less than the prevailing

minimum wages as determined hereunder shall be paid to all

workmen employed on public work.

Section 6.  Duty of Contractor.--Every contractor and

subcontractor shall keep an accurate record showing the name,

craft and the actual hourly rate of wage paid to each workman

employed by him in connection with public work, and such record

shall be preserved for two years from date of payment. The

record shall be open at all reasonable hours to the inspection

of the public body awarding the contract and to the secretary.

Section 7.  Duty of Secretary.--The secretary shall, after

consultation with the advisory board, determine the general

prevailing minimum wage rate in the locality in which the public

work is to be performed for each craft or classification of all

workmen needed to perform public work contracts during the

anticipated term thereof: Provided, however, That employer and

employe contributions for employe benefits pursuant to a bona

fide collective bargaining agreement shall be considered an

integral part of the wage rate for the purpose of determining

the minimum wage rate under this act. Nothing in this act,

however, shall prohibit the payment of more than the general

prevailing minimum wage rate to any workman employed on public

work. The secretary shall forthwith give notice by mail of all

determinations of general prevailing minimum wage rates made

pursuant to this section to any representative of any craft, any

employer or any representative of any group of employers, who

shall in writing request the secretary so to do.

Section 8.  Review of Rates, Petition and Hearing.--Any

prospective bidder or his representative, any representative of

any group of employers engaged in the particular type of

construction, reconstruction, alteration and demolition or

repair work involved, any representative of any craft or

classification of workmen or the public body may, within ten

days after the publication and issue of the specifications

covering the particular contract for public work involved, file

with the secretary a verified petition to review the

determination of any such rate or rates. Within two days

thereafter a copy of such petition shall be filed with the

public body authorizing the public work. The petition shall set

forth the facts upon which it is based. The secretary shall,

upon notice to the petitioner, the public body authorizing the

public work and the recognized collective bargaining

representatives for the particular crafts and classifications

involved, and also to all persons entitled to receive notice

pursuant to subsection (a) of section 7 hereof, institute an

investigation and hold a public hearing within twenty days after

the filing of such petition. Within ten days thereafter, the

secretary shall make a determination and transmit it, in

writing, to the public body and to the interested parties. Such

determination shall be final unless within ten days an appeal is

filed with the Appeals Board.

Upon receipt by the public body of the notice of the filing

of such petition, the public body awarding the contract or

authorizing the public work shall extend the closing date for

the submission of bids until five days after the final

determination of the general prevailing minimum wage rates

pursuant to this section and the publication of such findings.

Upon the filing of any such petition, notice thereof and of

the extension of the closing date for submission of bids, shall

be given forthwith by the awarding public body in a special

bulletin to all interested parties as defined herein, notice

shall also be given to the bidders by the awarding body of the

final determination of the secretary or Appeals Board which

shall also be included in the contract. The determination of the

secretary or Appeals Board shall be included in the contract.

Section 9.  Posting of Rates.--Contractors and sub-

contractors performing public work for a public body subject to

the provisions of this act shall post the general prevailing

minimum wage rates for each craft and classification involved,

as determined by the secretary, including the effective date of

any changes thereof, in prominent and easily accessible places

at the site of the work, or at such place or places as are used

by them to pay workmen their wages.

Section 10.  Duty of Public Body.--(a) Before final payment

is made by, or on behalf of any public body of any sum or sums

due on public work, it shall be the duty of the treasurer of the

public body or other officer or person charged with the custody

and disbursement of the funds of the public body to require the

contractor and subcontractor to file statements, in writing, in

form satisfactory to the secretary, certifying to the amounts

then due and owing from such contractor and subcontractor,

filing such statement to any and all workmen for wages due on

account of public work, setting forth therein the names of the

persons whose wages are unpaid and the amount due to each

respectively, which statement so to be filed shall be verified

by the oath of the contractor and subcontractor, as the case may

be, that he has read such statement subscribed by him, knows the

contents thereof and that the same is true of his own knowledge:

Provided, nevertheless, That nothing herein shall impair the

right of a contractor to receive final payment because of the

failure of any subcontractor to comply with provisions of this

act.

(b)  In case any workman shall have filed a protest, in

writing, within three months from the date of the occurrence of

the incident complained of, with the secretary, objecting to the

payment to any contractor to the extent of the amount or amounts

due or to become due to the said workman for wages or for labors

performed on public works, the secretary shall direct the fiscal

or financial officer of the public body, or other person charged

with the custody and disbursements of the funds of the public

body, to deduct from the whole amount of any payment on account

thereof the sum or sums admitted by any contractor in such

statement or statements so filed, to be due and owing by him on

account of wages earned on such public work before making

payment of the amount certified for payment and may withhold the

amount so deducted for the benefit of the workmen whose wages

are unpaid, as shown by the verified statement filed by any

contractor, and may pay directly to any workmen the amount shown

to be due to him for such wages by the statements filed as

hereinbefore required, thereby discharging the obligation of the

contractor to the person receiving such payment to the extent of

the amount thereof.

(c)  Any contractor or subcontractor who shall, under oath,

verify the statement required to be filed under this section,

which is known to him to be false, shall be guilty of a

misdemeanor, and shall, upon conviction, be sentenced to pay a

fine of not exceeding two thousand five hundred dollars ($2,500)

or to undergo imprisonment not exceeding five years, or both.

Section 11.  Remedies and Penalties.--(a) The fiscal or

financial officer, or any public body having public work

performed under which any workman shall have been paid less than

the prevailing wage, shall forthwith notify the secretary, in

writing, of the name of the person or firm failing to pay the

prevailing wages.

(b)  Any workman may, within three months from the date of

the occurrence of the incident complained of, file a protest, in

writing, with the secretary objecting to the amount of wages

paid for services performed by him on public work as being less

than the prevailing wages for such services.

(c)  Whenever a fiscal or financial officer of any public

body shall notify the secretary that any person or firm required

to pay its workmen the prevailing wage under this act has failed

so to do, or whenever any workman employed upon public work

shall have filed a timely protest objecting that he has been

paid less than prevailing wages as required by this act, it

shall be the duty of and the secretary shall forthwith

investigate the matter and determine whether or not there has

been a failure to pay the prevailing wages and whether such

failure was intentional or otherwise. In any such investigation,

the secretary shall provide for an appropriate hearing upon due

notice to interested parties including the workmen, the employer

and their respective representative, if any.

(d)  In the event that the secretary shall determine, after

notice and hearing as required by this section, that any person

or firm has failed to pay the prevailing wages and that such

failure was not intentional, he shall afford such person or firm

a reasonable opportunity to adjust the matter by making payment

or providing adequate security for the payment of the amounts

required to be paid under this act as prevailing wages to the

workmen affected on such terms and conditions as shall be

approved by the secretary.

(e)  In the event that the secretary shall determine, after

notice and hearing as required by this section, that any person

or firm has failed to pay the prevailing wages and that such

failure was intentional, he shall thereupon notify all public

bodies of the name or names of such persons or firms and no

contract shall be awarded to such persons or firms or to any

firm, corporation or partnership in which such persons or firms

have an interest until three years have elapsed from the date of

the notice to the public bodies aforesaid. The secretary may in

addition thereto request the Attorney General to proceed to

recover the penalties for the Commonwealth of Pennsylvania which

are payable under subsection (f) of this section.

(f)  Whenever it shall be determined by the secretary, after

notice and hearing as required by this section, that any person

or firm has failed to pay the prevailing wages and that such

failure was intentional, such persons or firm shall be liable to

the Commonwealth of Pennsylvania for liquidated damages, in

addition to damages for any other breach of the contract in the

amount of the underpayment of wages due any workman engaged in

the performance of such contract.

(g)  It shall not constitute a failure to pay the prevailing

wage rates for the work of a particular craft or classification

where the prevailing wage rates determined for a specific craft

or classification has been paid, and it is asserted that one or

more bona fide craft unions contend that the work should have

been assigned to their members instead of the members of the

specific craft to whom it was assigned or by whom it was

performed.

(h)  The following shall constitute substantial evidence of

intentional failure to pay prevailing wage rates:

(1)  Any acts of omission or commission done wilfully or with

a knowing disregard of the rights of workmen resulting in the

payment of less than prevailing wage rates.

(2)  After there has been a finding by the secretary in the

manner required by this section that any person or firm has

failed to pay the prevailing wages prescribed by this act and

thereafter there shall be a failure by such person or firm to

pay the prevailing wages prescribed by this act, or there shall

be a subsequent failure of such person or firm to comply with

any opportunity to adjust any differences which shall be

afforded him by the secretary.

Section 12.  Failure to Comply, Termination.--In any case

where the secretary shall have determined that any person or

firm has failed to pay the prevailing wages under subsections

(e) and (f) of section 11 hereof, he may direct the public body

to terminate, and the public body may terminate, any such

contractor's right to proceed with the public work.

Section 13.  Workmen's Rights.--Any workmen paid less than

the rates specified in the contract shall have a right of action

for the difference between the wage so paid and the wages

stipulated in the contract, which right of action shall be

instituted within six months from the occurrence of the event

creating such right.

Section 14.  Rules and Regulations.--The secretary is hereby

authorized and empowered to prescribe, adopt, promulgate,

rescind and enforce rules and regulations pertaining to the

administration and enforcement of the provisions of this act.

Section 15.  Application of Act.--This act shall have no

application to any public works subject to the Walsh-Healey Act,

the act of June 30, 1936, chapter 881, 49 Stat. 2036, 41 USCA

sections 35-45, or the Davis Bacon Act, the act of March 3,

1931, 40 U. S. Code 276 (a).

Section 16.  Repealer.--All acts and parts of acts are

repealed in so far as they are inconsistent herewith.

Section 17.  Effective Date.--This act shall take effect on

the first day of the sixth month following date of final

enactment.]

Section 2.  This act shall take effect in 60 days.