Berkeley Municipal Code Ch. 13.104 Wage Theft Prevention

A. The City of Berkeley is committed to protecting the public health, safety and welfare. The construction industry involves unique labor standards compliance challenges. Construction workers who do not receive all of their wages and mandatory benefits are likely to discover that despite the best efforts of State enforcement officials, many employees continue to be victims of wage theft because they are unaware of their rights or the State lacks adequate resources to advocate on their behalf. General contractors and Developer/Owners who receive City-issued permits and licenses and who benefit from the construction workers’ labor may disclaim responsibility for making underpaid workers whole.

B. Testimony presented to the State of California’s "Little Hoover" Commission stated that existing studies suggest that "the underground economy" is at least a $10 billion problem in California. Statewide, the construction industry is the industry with the second highest level of labor standards violations (as measured by State Labor Commissioner penalty assessments), surpassed only by the restaurant industry. Deputy Labor Commissioners conducted 985 inspections in the private construction industry in 2012-13, yielding 595 citations that assessed $5.3 million in penalties. Enforcement actions, however, are dwarfed by the number of contractors and projects in California, including projects in Berkeley. Over 300,000 state-licensed contractors performed about $48 billion worth of private construction work in the State in 2014. The mismatch between the resources of the State and the scope of the issue of fundamental wage projections through disclosure and transparency requires the involvement of local government police powers.

C. Assembly Bill 469, also known as the Wage Theft Protection Act of 2011, went into effect on January 1, 2012, adding section 2810.5 to the Labor Code. The act requires that all employers provide each employee with a written notice containing specified information at the time of hire.

D. This Chapter will ensure compliance with the Wage Theft Protection Act of 2011 by requiring confirmation by owners, contractors and subcontractors of the rate of pay and other legally required information pursuant to Labor Code section 2810.5. (Ord. 7668-NS § 1 (part), 2020)

Whenever used in this chapter, the following terms shall have the meanings set forth below.

A. "City" means the City of Berkeley.

B. "Community Workforce Agreement" (CWA), Resolution No. 68,299-N.S., means an agreement in effect between a contractor and the City of Berkeley wherein capital improvement projects will be performed solely by union labor.

C. "Contractor" means the prime contractor for the Project.

D. "Labor Commissioner" means the Office of the Labor Commissioner within the State of California’s Department of Industrial Regulations.

E. "Permittee" means any property owner, property owner’s authorized agent, or licensed contractor who obtains a building permit for a Project.

F. "Project" means a newly constructed building of greater than 30,000 square feet that is not subject to local, state or federal prevailing wage requirements or does not have a valid Project Labor or Community Workforce Agreement.

G. "Project Labor Agreement" (PLA) means an agreement in effect between a contractor and the building and construction trades wherein construction work performed on a specific project will be performed solely by union labor.

H. "Qualifying Subcontractor" means a subcontractor of any tier whose portion of the work exceeds $100,000 or one percent (1%) of the value of the construction cost of the Project.

I. "Responsible Representative" means an officer (if a corporation), general partner (if a partnership or a limited partnership), managing member (if a limited liability company), or a Qualifying Person associated with a Contractor or Qualifying Subcontractor. "Qualifying Person" is defined in Section 7068 of the California Business and Professions Code. (Ord. 7668-NS § 1 (part), 2020)

Prior to the issuance of a building permit for any Project subject to this Chapter:

A. A Responsible Representative of the Permittee shall certify under penalty of perjury that: (1) the Permittee has reviewed Chapter 13.104 of the Berkeley Municipal Code; and (2) the Permittee will be responsible for demonstrating compliance with this Chapter.

B. The Permittee shall provide to the City a Contractor Pay Transparency Acknowledgment on a form approved by the City for this purpose. A Responsible Representative of the Permittee shall certify under penalty of perjury that the Contractor and all Qualifying Subcontractors performing work on the Project will comply with Chapter 13.104 of the Berkeley Municipal Code and with Labor Code sections 226(a) and 2810.5 for each employee who works on the Project. (Ord. 7668-NS § 1 (part), 2020)

Within 10 days of the approved final inspection of any Project subject to this Chapter, each Permittee shall provide to the City for each Contractor and Qualifying Subcontractor a Pay Transparency Attestation on a form approved by the City. On each Pay Transparency Attestation, a Responsible Representative of the Contractor or Qualifying Subcontractor shall attest under penalty of perjury that the Contractor or Qualifying Subcontractor complied with Chapter 13.104 of the Berkeley Municipal Code and Labor Code sections 226(a) and 2810.5 for each employee who performed work on the Project. The City will maintain Pay Transparency Attestation forms for period of at least three years after their date of receipt by the City. (Ord. 7668-NS § 1 (part), 2020)

Each day work is performed on the Project, each Permittee shall post, and keep posted in a conspicuous location where it may be easily read by employees during the hours of the workday, a notice that: (A) contains the text of Chapter 13.104 of the Berkeley Municipal Code; (B) explains that workers can report violations of Labor Code sections 226 and 2810.5 to the Labor Commissioner of the State of California; and (C) provides current contact information, including office address, telephone number, and email address of the Labor Commissioner of the State of California. (Ord. 7668-NS § 1 (part), 2020)

The requirements of Sections 13.104.030 through 13.104.050 shall be included as conditions of approval of any Use Permit or Zoning Certificate for any Project that is subject to this Chapter. Failure to comply with the requirements of any provision of this Chapter shall be grounds for issuance of an administrative citation under Chapter 1.28 and/or the revocation or modification of any Use Permit issued for the Project under Chapter 23B.60. (Ord. 7668-NS § 1 (part), 2020)

A. Any person who suffers damages as a result of a violation of this Chapter shall have the right to file an action for injunctive relief and/or damages. Treble damages may be awarded for willful failure to comply with the requirements of this Chapter. In any action brought under this chapter, the court may award reasonable attorneys’ fees to any prevailing party.

B. Nothing in this chapter shall be interpreted to authorize a right of action against the City. (Ord. 7668-NS § 1 (part), 2020)

The City Manager may promulgate regulations for the administration and enforcement of this Chapter. (Ord. 7668-NS § 1 (part), 2020)

If any word, phrase, sentence, part, section, subsection, or other portion of this chapter, or any application thereof to any person or circumstance is declared void, unconstitutional, or invalid for any reason, then such word, phrase, sentence, part, section, subsection, or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of this chapter, and all applications thereof, not having been declared void, unconstitutional or invalid, shall remain in full force and effect. The City Council hereby declares that it would have passed this title, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases had been declared invalid or unconstitutional. (Ord. 7668-NS § 1 (part), 2020)