wyoming worker preference...
TRANSCRIPT
Wyoming Worker Preference Act
What you need to know
Introduction
Who am I Ken Gulliver
Business Consultant Unit Manager
Primary Duties - Provides support to Customers ,Workers’ Compensation, Workforce Centers and Labor Standards - Perform Preference Act Statewide compliance checks / investigate
complaints on public (Wyoming Taxpayer) funded projects. - Perform verification checks on businesses applying for a Certificate
of Wyoming Residency / investigate complaints on Certificate holders.
- Field Support for Workers Compensation concerns/issues
Wyoming Preference Act of 1971 • History of the Law • Background • Definitions • Explanation of Law • Contract Obligations • Certifying • Complaints • Investigations • Other Considerations • Penalties • Common Findings • Resources • Questions
History of Law
Not a new law (1971) Enforcement started in 2011
Wyoming Preference Act Wyoming Statute 16-6-203 states
Every person who is charged with the duty of construction, reconstructing, improving, enlarging, altering or repairing any public works project or improvement for the state or any political subdivision, municipal corporation, or other governmental unit, shall employ WY laborers on the project or improvement. Every contract let by any person shall contain a provision requiring that Wyoming labor be used except other laborers may be used when WY laborers are not available for the employment from within the state or are not qualified to perform the work involved. The contract shall contain a provision requiring specific acknowledgement of the requirements of this section. A person required to employ WY laborers may employ other than WY laborers if: (i) that person informs the nearest state workforce center of his employment needs at least eleven (11) days before work is commenced; and (ii) The state workforce center certifies that the person’s need for laborers cannot be filled from those Wyoming laborers listed with the WY Dept. of Workforce Services. The dept. shall respond to a person’s request for the certification within ten (10) days of the date the information was filed.
Background on Preference Act The WY Preference Act is essentially aimed at keeping
public monies in the State by ensuring local residents receive tax dollars back through employment on public works projects.
Governor Mead has made it one of his priorities to
ensure WY contractors and residents of the State obtain work on public works projects.
Local jobs = local tax revenue increases
Definitions “Labor” – WY Statute 16-6-202(a)(i) defines a laborer as “a person
employed to perform unskilled or skilled manual labor for wages in any capacity and does not include independent contractors.”
this means laborers actually perform the work “skilled manual laborer” means all skilled craftsmen/tradesmen to include working supervisors or any person, regardless of position title, performing work. It does not include independent contractors, non working supervisors,
non working project managers, designers or owners. “Resident” WY Statute 16-6-202 defines a WY resident as: Any person who is a citizen of the United States, or a person who is authorized to work in the United States by an agency of the federal government, and has resided in the state of Wyoming for at least one (1) year immediately preceding his application for employment;
Definitions continued Independent Contractor – means an individual who performs services
for another individual or entity and:
(a) Is free from control or direction over the details of the performance of services by contract and by fact;
(b) Represents his services to the public as a self-employed individual or an independent contractor and
(c) May substitute another person to perform his services
Changes in Preference Law July 1st 2014
“Major maintenance” means the repair or replacement of complete or major portions of building and facility systems at irregular intervals which is required to continue the use of the building or facility at its original capacity for its original intended use and is typically accomplished by contractors due to the personnel demand to accomplish the work in a timely manner, the level of sophistication of the work or the need for warranted work;
Who are your workers Contractors are responsible for verifying employees classified as WY residents meet the statutory definition of the term. Doing so may include, but is not limited to requiring the employee to produce: A valid government ID with an issue date of 1 year or greater. A past utility bill or other mail demonstrating residency within Wyoming for at least one year. A past or current Wyoming resident hunting or fishing license. Residential mortgage or rental documents demonstrating residency within Wyoming for at least one year. Prior employment documents such as paystubs showing a valid residential address demonstrating residency within Wyoming for at least one year. .
What the Statute means. Contractors must employ ONLY residents of the State of Wyoming on public works projects except…. If the employer has contacted their nearest Workforce Center and received a written certification from the center stating the employer’s labor needs (specific numbers for all working positions) required for the project) cannot be met by the local labor pool. Proper position identification & position numbers are crucial • Posted positions for construction, extraction, installation,
maintenance & repair are matched with the appropriate State Occupational Employment and Wage Estimates -
Wyoming Codes are located at… https://www.bls.gov/oes/current/oes_wy.htm • Contact information for the centers can be found at:
http://www.wyomingworkforce.org/businesses/employment/
More on Meaning The contractor can only hire a non-resident once he or she receives
certification. A single certificate will not cover multiple projects in a given location,
even if the projects occur at the same time and have the same labor requirements.
Certification only authorizes the number & position(s) listed for the project.
Certification must be sought for every public works job the contractor is working on in a given locale.
Just registering with the local Workforce Services office is insufficient. The contractor must receive certification before hiring non-resident laborers.
Contract Obligations Every contract & subsequent subcontract for a public works project
must contain language explaining the signatory’s obligation to conform to the Act
The prime contract & subsequent subcontracts must also contain a provision whereby the signatory acknowledges the Act’s requirements.
All contracts have to conform to these requirements from the owner’s contract to the General Contractor on down to the last tier subcontractor.
Note: Once a contractor/subcontractor is officially notified of Preference Act applicability/requirements, even if the language was not on the contract / subcontract, they are responsible for compliance.
Example of Wording for Contracts Bidders are hereby notified that the Work is required to be conducted in compliance with Wyoming Statute 16-6-201 the "Wyoming Preference Act of 1971". Special attention is called to Wyoming Statute 16-6-203 “Required resident labor on public works projects; exception”. • Every person who is charged with the duty of construction, reconstructing, improving, enlarging,
altering or repairing any public works project or improvement for the state or any political subdivision, municipal corporation, or other governmental unit, shall employ only Wyoming laborers on the project or improvement.
• A person required to employ Wyoming laborers may employ other than Wyoming laborers if: • (i) That person informs the nearest state workforce center of his employment needs at least
eleven (11) days before work is commenced; and • (ii) The state workforce center certifies that the person's need for laborers cannot be filled from
those Wyoming laborers listed with the Wyoming Department of Workforce Services. The Department shall respond to a person's request for certification within ten (10) days of the date the information is filed.
• Upon request by the workforce center, the general contractor shall provide the most recent construction schedule for the project.
• Certified payroll reporting is required by Wyoming Statute 16-6-205(b). • This provision shall be referenced in all contracts, sub contracts and subsequent lower tier
subcontracts. • Contractor’s / Subcontractor’s acknowledgement of this provision. • Name:__________________________ Date:__________ .
Certification The certification is only good for the number and category of
positions stated in the letter.
Once certification is issued for a project it is valid for the length of the project; however if during this time a previously filled position opens, the contractor must attempt to hire qualified Wyoming resident labor before filling the vacant position with non-resident labor.
If during the course of the project the employer’s needs expand beyond what was requested from the local Workforce Center, additional certifications must be sought before hiring additional or replacement non-resident labor.
Contractor Concerns #1 Contractors would like to be able to leave registered positions open with the Workforce Centers through the life of a project as this would enable them to make a quick call to the Centers if someone quits later in a project.
This isn't a problem and many contractors have already been doing it to avoid delays in construction in the event of unforeseen turnover.
#2 Is it possible for a contractor to obtain a certification for a long term project that may include different sites throughout the State?
Yes, however a certificate of this type shall be for the same owner, for one contract which encompasses multiple sites if the work at the varying sites is of a similar nature.
#3 The contractor community would also like to be able to go to their nearest Workforce Center (aka the Center where the company is headquartered in the State) to register their openings and also obtain the certification letter, if they choose.
As a customer service measure, the Workforce Centers will work to initiate a process by which contractors can call their local Workforce Representative and the Workforce Center employee will then get that job order to the Center in the locale in which the work is to be performed.
Customer Service Item
• If you feel that some laborers may leave the job at the end or near the end of the project, keep your job posting open continuously throughout the project. Then if you are in need of labor you already ran your ads for the 10 days and an additional certification can be issued if your labor needs are not met with qualified Wyoming residents.
Complaints Complaints do happen. Presently there is a form on our website on the employers side at www.wyomingworkforce.org w that allows anyone to submit a complaint concerning a contractor’s adherence to the Resident Contractor or Preference Act. Complaints however, do not need to come in written form so long as the individual lodging the complaint provides sufficient information to begin the investigation ie: contractors name, project name and location etc.
Investigations Investigations can be initiated due to the following: (i) Complaints (ii) Posting abnormal/fictitious/excessive/nonrelated job requirements (iii) Not hiring Wyoming resident applicants/referrals (iv) Not hiring Wyoming residents when a subsequent vacancy occurs (v) Past noncompliance's If you are the subject of an investigation involving a suspected or alleged violation of the WY Preference Act, be prepared to produce the following information (i) A copy of your contract with the project sponsor ie: state agency, school district,
county etc. (ii) A copy of your contract with the General Contractor for the project (iii) The exact date you began work on the project (and the last date you worked on it
if the work is completed) (iv) Certified payroll records identifying the full name, permanent resident address, title
or position, specific dates, hours worked per day, hourly pay & benefit rates for every individual employed on the project.
(v) If applicable a copy of the Certification letter(s) & any additional information you feel demonstrates you did not violate the Act.
Investigation (cont.) 16-6-205. Enforcement.
(a) The department of workforce services shall promulgate rules and regulations required to enforce this act and is authorized and directed to enforce this act. For purposes of all investigations, the department shall have the power to issue subpoenas requiring the attendance and testimony of witnesses and the production of any books, papers, documents or records which the department deems relevant or material to the inquiry. (b) Along with each application for payment for a contract subject to this act, the general contractor shall provide to the contracting entity a payroll report for all contractors and subcontractors involved in the project in a form that is consistent with federally certified reporting requirements and includes residency status for each laborer. (c) This act shall not be enforced in a manner which conflicts with any federal statutes or rules and regulations.
Investigation (cont.) 16-6-206. Failure to employ state laborers; penalty.
(a) A person who willfully or intentionally fails to use Wyoming laborers as required in this act shall be subject to a civil penalty of not more than one thousand dollars ($1,000.00) per nonresident laborer employed per day, not to exceed a total penalty of ten percent (10%) of the amount of the person's contract. Each separate case of failure to employ Wyoming laborers on public works projects constitutes a separate offense. (b) In the event a second offense occurs within a twelve (12) month period from the date of the first offense, the person shall be barred from bidding on any contract subject to the provisions of this act or submitting any request for proposal on any project subject to the provisions of this act for one (1) year from the date the second violation is corrected.
• If a violation is found both the owner and the General Contractor will be notified of the violation.
• In case of a subcontractor defaulting in the payment of a fine it is possible that the State may seek to recover penalties assessed against the subcontractor on a project from the General Contractor’s bond
Other Considerations Simply registering or posting a job order with Workforce Services is
insufficient to comply with the Act. If you need to bring on non-resident labor you must follow the process and RECEIVE CERTIFICATION PRIOR TO UTILIZING NONRESIDENT LABOR ON THE PROJECT.
Certification is not a “get out of jail” card. If evidence indicates you
did not seek certification in a reasonable time frame, refused to hire qualified resident employees that applied for open positions, held unrealistic qualifications for the positions sought, or did not apply to the most appropriately situated Workforce Center, you may be cited for violating the Preference Act.
Other Considerations (cont.) WY Statute 27-4-401- Wyoming Prevailing Wage Act - Applies to State contracts $100K and above - When applicable applies in conjunction with with the WY Preference Act on State funded projects - Requires “not less than the prevailing hourly rate of wages for work of a similar character in the locality in which the work is performed” - Requires certified payroll records - Penalty for violations.
WY Statute 27-7-108 - 115. Right to Work - Cannot require or prohibit membership in a labor organization or require membership in a labor organization as a condition of employment. - Cannot require connection with, or be recommended or approved by, or be cleared through, any labor organization as a condition of employment. - Penalty for violations
Penalties Violation of the Preference Act can result in a fine up to
$1000 per non-resident laborer employed per day – up to 10% of the amount of the contract for the first offense.
In the event a second offense occurs within a twelve (12) month period from the date of the first offense, the person shall be barred from bidding on any contract subject to the provisions of this act or submitting any request for proposal on any project subject to the provisions of this act for one (1) year from the date the second violation in corrected.
Penalties con’t Before a civil penalty is imposed under this section, the Dept. of Workforce Services shall notify the person accused of a violation. The notice shall be served in accordance with the WY Rules of Civil Procedure and contain: (i) A statement of the grounds for imposing the civil
penalty, including a citation to the statute involved. (ii) A statement of the facts in support of the allegations. (iii) A statement informing the person of the right to a
hearing and that failure to timely request a hearing will result in imposition of the civil penalty stated.
Common Noncompliance Findings • Contractor opens a job order and does not specify it is for a
Wyoming Preference project and or does not provide all required information.
• When applicable Contractor does not list required Prevailing Rate wages.
• Contractor is on site prior to posting and/or receiving DWS certification letter.
• Contractor does not post for all working positions and or for the specific project with the local DWC… Example: postings are for “Laborers”, but not for Journeyman / Apprentice / working Foreman/Supervisor or for other craft positions on the specific project. Each project must be posted separately.
• Contractor does not seek additional certification when their labor needs expand and or for turnover of staff.
• Contractor hires nonresident Temporary Employee(s) from a job agency without having a DWS certification letter(s) authorizing the position(s).
COMMON NONCOMPLIANCE FINDINGS
• Wyoming resident employees do not have proof of 1 year residency with them…Examples…WY DL/ID with an issue date < 1 year. Note: IDs must show Name / Wyoming address and an issue date > 1 year.
• Contractor hires a nonresident “Independent Contractor” and uses the individual as a part of the crew.
• Nonresident workers living in Wyoming, but maintaining permanent residency status in another state.
• Contractor posts unrealistic / nonexistent employment criteria, that are not applied to nonresident workers, to avoid hiring qualified Wyoming residents… Example: Postings require excessive experience / certifications / excessive low pay for the trade/craft are used to discourage Wyoming residents from applying / disqualify qualified Wyoming residents for the posted positions. In such cases the Certification letter authoring nonresident laborer may denied or revoked if issued.
COMMON NONCOMPLIANCE FINDINGS
• Contractor discourages and or refuses to hire qualified Wyoming residents for the positions posted by not accepting or responding to applications/applicants or implementing other barriers to discourage, prevent and or disqualify qualified applicants from being hired…In such cases the Certification letter may not be issued or revoked if issued.
• Contractor assumes, because their nonresident employees have unique / special skills / certifications, they do not need to comply to the Wyoming Preference Act.
• A contractor that seeks certification within the two week period, but is clearly seeking the impossible, i.e. to fill 50 positions in two weeks, will not be considered in compliance.
Citations shall be issued whenever it is determined contractors willfully or intentionally failed to use Wyoming laborers as required
Summation ALL CONTRACTORS working on public works projects
must comply with the WY Preference Act. Those contractors possessing Resident Contractor Certifications from the WY Dept. of Workforce Services Labor Standards, as well as non-resident contractors must hire qualified WY labor for public works projects
Summation (cont.) In order for a contractor to remain in compliance with the law when hiring
non-resident labor the contractor must present its labor needs at least eleven (11) calendar days prior to the commencement of work.
The Workforce Center in turn must respond to a request for certification within ten (10) days of the date the information was filed with the agency, but if required information is not provided the issuance of the certification letter may be delayed or denied.
However, the contractor must make reasonable efforts to employ qualified WY labor and in so doing, must seek such labor in reasonable time periods in relation to the number of employees sought, and the date such employees are required to start working.
DON’T WAIT UNTIL THE LAST MINUTE, PLAN AHEAD
Resources If you have questions concerning enforcement of the act, call Ken Gulliver
at 307-777-1921 or [email protected] . 4 For questions concerning the issuance of a certification under the Act,
please contact your local Workforce Center or call Andrea Hixon at 307-777-7807 or [email protected]
State Occupational Employment and Wage Estimates -Wyoming Codes are
located at… https://www.bls.gov/oes/current/oes_wy.htm
WY Dept. of Workforce Services Prevailing Wage Survey is located at… http://www.wyomingworkforce.org/_docs/labor/2009-bc-survey-codes.pdf
Questions
Contact Information
Ken Gulliver (Southeast Region) Business manager
Office -307-777-1921 Cell – 307-275-2954
Trevor Mansfield (Western Region)
Business Consultant Office 307-352-2557 Fax 307-382-3534 Cell 307-212-1127
Contact Information Vickie Pullen
(Northeast Region) Business Consultant Office 307-235-3227 Fax 307-233-4614 Cell 307-337-5812
Lee Williams (Central Region)
Business Consultant Office 307-332-2620 Fax 307-332-5614 Cell 307-438-1816
Labor Standards -307-777-7261
