BILL ANALYSIS Ó AB 852 Page 1 Date of Hearing: April 8, 2015 ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT Roger Hernández, Chair AB 852 (Burke) - As Amended April 6, 2015 SUBJECT: Public works: prevailing wages SUMMARY: Specifies that "public work" for purposes of prevailing wage law also means any construction, alteration, demolition, installation, or repair work done under private contract on a general acute care hospital when the project is paid for in whole or in part with the proceeds of conduit revenue bonds issued by a public agency. For purposes of this section, "general acute hospital" has the same meaning as in subdivision (a) of Section 1250 of the Health and Safety Code. EXISTING LAW: 1)Defines "conduit revenue bond" to mean any municipal security the proceeds of which are loaned to any nongovernmental borrower, including, but not limited to, persons, for-profit corporations, nonprofit corporations pursuant to Section 501(c)(3) of the Internal Revenue Code, partnerships, and other legal entities for purposes that are permitted for qualified private activity bonds under applicable federal law. 2)Defines "conduit financing provider" to mean any county, city, city and county, public district, public authority, public AB 852 Page 2 corporation, nonprofit corporation, joint powers authority, or other statutorily constituted public entity that issues one or more conduit revenue bonds. FISCAL EFFECT: Unknown COMMENTS: A Brief History of State and Federal Prevailing Wage Law State prevailing wage laws vary from state to state, but do share a common history that actually predates federal prevailing wage law. Many of these state laws were enacted as part of general reform efforts to improve working conditions at the end of the 19th and the beginning of the 20th centuries. Between 1891 and 1923, seven states adopted prevailing wage laws that required payment of specified hourly wages on government construction projects. The State of Kansas enacted the first prevailing wage law in 1891. Eighteen additional states and the federal government adopted prevailing wage laws during the Great Depression of the 1930s amidst concern that acceptance of the low bid, a common requirement of government contracting for public projects when government had become the major purchaser of construction, would operate to reduce the wages paid to workers on those projects to a level that would disrupt the local economy. California's prevailing was law was enacted in 1931. In general, the proponents of prevailing wage legislation wanted to prevent the government from using its purchasing power to undermine the wages of its citizens. It was believed that the AB 852 Page 3 government should set an example, by paying the wages prevailing in a locality for each occupation hired by government contractors to build public projects. Thus, prevailing wage laws are generally meant to ensure that wages commonly paid to construction workers in a particular region will determine the minimum wage paid to the same type of workers employed on publicly funded construction projects. Most public construction projects contracted for or by the federal government or the District of Columbia are covered by the federal prevailing wage law, the Davis-Bacon Act (Act), while 33 states have prevailing wage laws, often referred to as "little Davis-Bacon Acts," that encompass projects financed by states and their political subdivisions. The federal Davis-Bacon Act was enacted by Congress in 1931. The Act requires workers employed under public construction contracts of the federal government in excess of $2,000 to be paid a minimum wage that the United States Department of Labor determines to be prevailing for corresponding classes of workers. In addition, sixty separate federal laws currently specify the payment of Davis- Bacon wages for work prescribed. The federal government also has two additional prevailing wage laws - the Walsh-Healy Public Contracts Act of 1935 (which covers federal contractors in manufacturing and supply industries), and the O'Hara-McNamara Services Act of 1965 (which covers service contracts). The United States Supreme Court has stated the public policy underlying the Davis- Bacon Act as one of: AB 852 Page 4 "protecting local wage standards by preventing contractors from basing their bids on wages lower than those prevailing in the area . . . [and] giving local labor and the local contractor a fair opportunity to participate in this building program." Universities Research Ass'n. v. Coutu (1981) 450 U.S. 754, 773-774). General Background on "Public Works" Under California Law In general, "public works" is defined to include construction, alteration, demolition, installation or repair work done under contract and "paid for in whole or in part out of public funds." Over a decade ago, there was much administrative and legislative action over what constituted the term "paid for in whole or in part out of public funds." This action culminated in the enactment of SB 975 (Alarcón), Chapter # 938, Statutes of 2001, which codified a definition of "paid for in whole or in part out of public funds" that included certain payments, transfers, credits, reductions, waivers and performances of work. At the time, supporters of SB 975 stated that it established a definition that conformed to several precedential coverage decisions made by the Department of Industrial Relations (DIR). These coverage decisions defined payment by land, reimbursement plans, installation, grants, waiver of fees, and other types of public subsidy as public funds for purposes of prevailing wage law. According to the sponsors, SB 975 was intended to remove ambiguity regarding the definition of public subsidy of development projects. AB 852 Page 5 SB 975 also exempted certain affordable housing, residential and private development projects that met certain criteria. Follow-up legislation, SB 972 (Costa), Chapter 1048, Statutes of 2002, was intended to clarify the application of SB 975 and was the result of extensive discussions between the State Building and Construction Trades Council (sponsor of SB 975), affordable housing advocates, and the Davis Administration. Supporters of SB 972 contended that the original legislation had unintended consequences for self-help housing and housing rehabilitation projects. As a result of that compromise, SB 972 exempted from public works requirements the construction or rehabilitation of privately-owned residential projects that met certain criteria. Why It Matters: "Prevailing Wage" The determination of whether a project is deemed to constitute a "public work" is important because the Labor Code requires (except for projects of $1,000 or less) that the "prevailing wage" to be paid to all workers employed on public works projects. Background on Conduit Revenue Bonds Bonds that are issued for the purpose of making loans to entities other than state or local governments are commonly referred to as "conduit bonds" or "conduit issues," and state or local governments which issue these bonds are commonly referred to as "conduit issuers." (Your Responsibilities as a Conduit Issuer of Tax-Exempt Bonds, Publication 5005 (4-2012) Catalog AB 852 Page 6 #59471F, Department of the Treasury, Internal Revenue Service) According to the IRS, a conduit issuer in a conduit bond financing typically issues the bonds and loans the bond proceeds to a conduit borrower. A conduit borrower is generally responsible for the payment of debt service on the conduit bond issue and is usually contractually obligated to maintain the tax-exempt status of the bonds. A Los Angeles Times article from 2011 reported that conduits had grown roughly three times faster than the general municipal market over the last five years, according to data from Thomson Reuters, a New York data firm; $84 billion of these bonds were issued in 2010 alone. ('Conduit' muni bond defaults draws scrutiny, June 14, 2011) According to the article, investors don't have to pay taxes on their interest from municipal bonds, enabling companies to borrow money at lower interest rates than they could get on their own. The article notes that although conduits account for roughly 20 percent of all municipal bonds, they have been responsible for about 70 percent of all defaults in the municipal bond market in recent years, according to the Income Securities Advisors, a Florida research firm. Because these types of public subsidies are arguably not included under the definition of "paid for in whole or in part out of public funds," they don't currently trigger the coverage of the prevailing wage law. Several determinations by DIR have addressed this issue finding that conduit bond funded projects are not public works, and therefore not subject to the prevailing wage. AB 852 Page 7 For example, in a 2005 determination regarding a Rancho Santa Fe Village Senior Affordable Housing Project, the director stated that: "?money collected for, or in the coffers of, a public entity is "public funds" within the meaning of Section 1720 (which defines public works). Here neither the conduit bond revenues nor the loan repayments ever enter thecoffers of a public entity, nor are they collected for the public entity. Since none of the money flows into or out of public coffers, the conduit bond financing is not "the payment of money or the equivalent of money by the state or political subdivision?" Rancho Santa Fe Village Senior Affordable Housing Project, PW 2004-16 (Feb. 25, 2005) The acting director argued that because it assigns all of its rights to a bond trustee, the issuer never has possession of either the bond proceeds or the loan repayments that are made by the borrower directly to the bond trustee. However, the State Building and Construction Trades Council argued that the use of tax-exempt bond financing constitutes a loan at below-market interest rates and therefore is covered under Labor Code §1720(b)(4). This code section states that "paid for in whole or in part out of public funds" includes "(4) Fees, costs, rents, insurance or bond premiums, loans, interest rates, or other obligations that would normally be required in the execution of the contract, that are paid, reduced, charged at less than fair market value, waived, or forgiven by the state or political subdivision." This bill would address this uncertainty regarding conduit revenue bonds being paid for by public funds by specifying that "public work" also means any construction, alteration, demolition, installation, or repair work done under private AB 852 Page 8 contract on a general acute care hospital project when the project is "paid for in whole or in part" with the proceeds of conduit revenue bonds issued by a public agency. ARGUMENTS IN SUPPORT: The author of the measure states that the proposed changes with this bill, would add conduit bond financing to the types of subsidies that trigger prevailing wage coverage, thereby recognizing that public funds (through foregone tax revenues) are being used to subsidize the project. According to the author, conduit revenue bond financing is a method by which the public subsidizes a private development project. A public entity acts as the "issuer" of the bonds so the interest payments on the bonds will be tax-exempt to the bondholders under the income tax code. Because the bondholders will not be taxed on the interest, they are willing to accept a lower return on their investment, and the cost of borrowing is lower. The bond proceeds are transferred to a private developer, which is responsible for making the payments to the bondholders. The public entity issuing the bonds acts purely as a "conduit" - it does not receive the bond proceeds or pay back the bondholders. But the tax code looks to the form of the transaction, not its substance, so the interest on the bonds is still tax-exempt to the bondholders. The public thereby subsidizes the private development project by foregoing the tax revenues that would otherwise be paid by the bondholders. According to the author, due to the fact that private entities utilize these bonds to save money in interest payments, it makes sense to ensure that any work being paid for by proceeds from conduit bonds should, at the very least, go towards providing a livable wage for the construction workers building the projects that the bonds fund. Additionally, they argue, the prevailing AB 852 Page 9 wage ensures that the most skilled and qualified workers build these complex medical facilities. According to supporters, this bill will close a loophole in state law by requiring healthcare companies electing to receive tax-exempt conduit bond financing from a public agency to pay construction workers the prevailing wage and therefore attract the most competent and skilled local workforce to build these complex medical facilities. It is also worth noting that this bill narrows the focus of its predecessor, SB 615, by shifting the focus of the public works from "a hospital or health care facility project" to a general acute care hospital. REGISTERED SUPPORT / OPPOSITION: Support CA Chapters of the National Electrical Contractors Association CA Conference Board of the Amalgamated Transit Union CA Conference of Machinists CA Legislative Conference of the Plumbing, Heating and Piping AB 852 Page 10 Industry United Contractors California Teamsters Public Affairs Council Construction Employers' Association Engineers & Scientists of California International Longshore & Warehouse Union Professional & Technical Engineers Southern California Contractors Association State Building and Construction Trades Council (Sponsor) Union Roofing Contractors Association UNITE-HERE Utility Workers Union of America Opposition None on file. AB 852 Page 11 Analysis Prepared by:Christopher Martin/ Ben Ebbink / L. & E. / (916) 319-2091