Report Title:
Service employees
Description:
Amends current labor laws to provide comparable wages and benefits for service employees. Allows contracted employees to organize. Repeals section 103-55, Hawaii Revised Statutes. (HB1968 HD1)
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
1968 |
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TWENTY-FIRST LEGISLATURE, 2002 |
H.D. 1 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to service employees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that service employees working for contractors of the State and counties deserve the same wage protections long established in federal and state law as the right of construction laborers and mechanics. The legislature further finds that section 103-55, Hawaii Revised Statutes, while laudable, has too many exemptions and insufficient provisions for enforcement, rendering it unable to accomplish the express purpose to assure contracted services be performed by employees paid at wages or salaries not less than the wages paid to public officers and employees for similar work.
In 1955, the Senate's labor committee recommended passage of the State's prevailing wage statute for construction laborers. The legislature declared that the State's public policy on bids for public work should be based on the relative skill and efficiency of the contractors concerned and not on a difference in wages paid. Government money, funded by taxpayers, should not be used to subsidize contractors who are depressing wages.
The purpose of this Act is to amend current labor laws to allow service employees to earn competitive wages.
SECTION 2. Chapter 104, part I, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§104- Service employees or contractors; wages, hours, and working conditions. (a) Before any prospective bidder is entitled to submit any bid for the performance of any contract to supply services in excess of $2,500 to any government agency, the bidder shall certify that:
(1) Service employees that render services shall be paid at wages or salaries and fringe benefits not less than the wages and benefits paid to public officers and employees for similar work; and
(2) The contractor shall comply with all applicable laws of the federal and state governments relating to worker's compensation, unemployment compensation, payment of wages, and safety.
(b) No contractor or subcontractor under a contract to perform services for any governmental contracting agency in excess of $2,500, which succeeds a contract subject to this chapter and under which substantially the same services are furnished, shall pay any service employee under contract less than the wages and fringe benefits, including accrued wages and fringe benefits, and any prospective increases in wages and fringe benefits provided for in a collective-bargaining agreement as a result of arm's length negotiations that are entitled to non-construction service employees if they were employed under the predecessor contract; provided that the foregoing obligations shall not apply if the director finds, after hearing in accordance with rules adopted by the director, that such wages and fringe benefits are substantially at variance with those that prevail for similar services in the State.
(c) No contract to perform services for any governmental contracting agency in excess of $2,500 shall be granted unless all the applicable conditions of this chapter are met. Failure to comply with the applicable conditions of this chapter during the period of the contract to perform services shall result in cancellation of the contract, unless such noncompliance is corrected within a reasonable period as determined by the contracting officer. Payment in the final settlement of a contract, or release of bonds, or both, shall not be made unless the contracting officer has determined that the noncompliance has been corrected.
(d) Each contract and its specifications shall contain a provision that the governmental contracting agency may withhold from the contractor so much of the accrued payments as the governmental contracting agency may consider necessary to pay covered services employees of the contractor or subcontractor, the difference between the wages required by the contract, or specifications and the wages received and not refunded to the employees.
(e) This section shall apply to all contracts to perform services in excess of $2,500, including contracts to supply ambulance services and janitorial services; except for:
(1) Managerial or supervisory personnel;
(2) Contracts for supplies or materials;
(3) Contracts with other government agencies; and
(4) Contracts awarded to non-profit organizations."
SECTION 3. Chapter 104, part II, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:
"§104- Neutrality. (a) Each contract and bid specification entered into by a governmental contracting agency under this chapter shall contain provisions that:
(1) Require the contractor to ensure the rights of all employees under relevant state and federal laws to:
(A) Form, join, or assist labor organizations;
(B) Bargain collectively through representatives of their own choosing; and
(C) Exercise these legal rights without interference;
(2) Should at any time during the contract period a labor organization or any employee of the contractor seek to organize employees of the contractor, the contractor:
(A) Shall not commit any act or make any statement that will directly or indirectly state or imply the contractor's preference or non-preference for unionization of its employees in general, or for recognition of any bona fide labor organization as the exclusive representative of the employees working on contracts covered by this section; and
(B) Shall grant employees access to employee lunchrooms, lounges, or other non-public areas on the contractor's premises during employee's off-work periods, for organizational purposes with any bona fide labor organization; provided that there is no interference with normal work operations;
and
(3) In the event that during a contract period a bona fide labor organization requests recognition within an appropriate bargaining unit, a neutral party selected by the director shall conduct a review of employee authorization cards submitted by the labor organization in support of its claim to represent a majority of employees in an appropriate bargaining unit. If a majority of employees within a unit has designated the signatory labor organization to represent them, the contractor shall recognize that labor organization as the exclusive representative of the designated bargaining unit, and negotiations shall commence for a collective bargaining agreement.
§104- Striker replacements. Governmental contracting agencies shall not contract with employers that permanently replace lawfully striking employees. Contractors and subcontractors under a contract to perform work that succeeds a contract subject to this chapter and under which substantially the same services are furnished, shall not permanently replace lawfully striking employees."
SECTION 4. Section 104-1, Hawaii Revised Statutes, is amended to read as follows:
"§104-1 Definitions. As used in this chapter, the following words and phrases shall have the following meanings:
[(1)] "Basic hourly rate" means the hourly wage paid to a laborer or mechanic for work performed during nonovertime hours, but shall not include the cost to an employer of furnishing fringe benefits whether paid directly or indirectly to the laborer, [or] mechanic [as provided in paragraph (7);],or service employee.
[(2)] "Construction" includes alteration, repair, painting, and decorating[;].
[(3)] "Department" means the department of labor and industrial relations[;].
[(4)] "Director" means the director of labor and industrial relations [of the State;].
[(5)] "Governmental contracting agency" means the State, any county and any officer, bureau, board, commission, or other agency or instrumentality thereof[;].
[(6)] "Overtime compensation" means compensation based on one and one-half times the laborers or mechanics basic hourly rate of pay plus the cost to an employer of furnishing a laborer, [or] mechanic, or service employee with fringe benefits [as described in paragraph (7);].
"Service employee" means any person engaged in the performance of a contract entered into by a governmental contracting agency to perform work in the State, either negotiated or advertised, with a principal purpose to furnish services in the State. This term does not include any person employed in a bona fide executive or administrative position or any person who is otherwise considered a laborer or mechanic as provided in section 104-2. This term shall include all such persons regardless of any contractual relationship that may be alleged to exist between a contractor or subcontractor and such persons.
[(7)] "Wages", "rate of wages", "wage rates", "minimum wages" and "prevailing wages" mean the basic hourly rate and the cost to an employer of furnishing a laborer, [or] mechanic[.], or service employee with fringe benefits, including but not limited to health and welfare benefits, vacation benefits, and pension benefits, whether paid directly or indirectly to the laborer, [or] mechanic[.], or non-construction service employee."
SECTION 5. Section 103-55, Hawaii Revised Statutes, is repealed.
["§103-55 Wages, hours, and working conditions of employees of contractors performing services. (a) Before any offeror enters into a contract to perform services in excess of $25,000 for any governmental agency, the offeror shall certify that the services to be performed will be performed under the following conditions:
Wages. The services to be rendered shall be performed by employees paid at wages or salaries not less than the wages paid to public officers and employees for similar work.
Compliance with labor laws. All applicable laws of the federal and state governments relating to workers' compensation, unemployment compensation, payment of wages, and safety will be fully complied with.
(b) No contract to perform services for any governmental contracting agency in excess of $25,000 shall be granted unless all the conditions of this section are met. Failure to comply with the conditions of this section during the period of contract to perform services shall result in cancellation of the contract, unless such noncompliance is corrected within a reasonable period as determined by the procurement officer. Final payment of a contract or release of bonds or both shall not be made unless the procurement officer has determined that the noncompliance has been corrected.
It shall be the duty of the governmental contracting agency awarding the contract to perform services in excess of $25,000 to enforce this section.
(c) This section shall apply to all contracts to perform services in excess of $25,000, including contracts to supply ambulance service and janitorial service.
This section shall not apply to:
(1) Managerial, supervisory, or clerical personnel.
2) Contracts for supplies, materials, or printing.
(3) Contracts for utility services.
(4) Contracts to perform personal services under paragraphs (2), (3), (12), and (15) of section 76-16, paragraphs (7), (8), and (9) of section 46-33, and
(5) Contracts for professional services.
(6) Contracts to operate refreshment concessions in public parks, or to provide food services to educational institutions.
(7) Contracts with nonprofit institutions."]
SECTION 6. All references to "laborers and mechanics", or like terms, as the case may be, in sections 104-3, 104-4, 104-5, 104-21, 104-28, and 104-34, Hawaii Revised Statutes, shall be amended to "laborers, mechanics, and service employees", or like terms, as the case may be, as the context requires.
SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 8. This Act shall take effect upon its approval.