Chapter 8. Office of the Director
Subchapter 4. Awarding Body Labor Compliance Programs
Article 5. Enforcement

§16435.5. Withholding Contract Payments When, After Investigation, It Is Established That Underpayment or Other Violation Has Occurred.

(a) "Withhold" and "contracts" have the same meaning set forth in sections 16435(a) and 16435(b) of these regulations.

(b) Where the violation is by a subcontractor, the general contractor shall be notified of the nature of the violation and reference made to its rights under Labor Code Section 1729.

(c) "Amount equal to the underpayment" is the total of the following determined by payroll review, audit, or admission of contractor or subcontractor:

(1) The difference between amounts paid workers and the correct General Prevailing Rate of Per Diem Wages, as defined in Labor Code Section 1773, and determined to be the prevailing rate due workers in such craft, classification or trade in which they were employed and the amounts paid;

(2) The difference between amounts paid on behalf of workers and the correct amounts of Employer Payments, as defined in Labor Code Section 1773.1 and determined to be part of the prevailing rate costs of contractors due for employment of workers in such craft, classification or trade in which they were employed and the amounts paid;

(3) Estimated amounts of "illegal taking of wages";

(4) Amounts of apprenticeship training contributions paid to neither the program sponsor's training trust nor the California Apprenticeship Council;

(5) Estimated penalties under Labor Code Sections 1775, 1776, and 1813.

(d) The withholding of contract payments when, after investigation, it is established that underpayment or other violations have occurred requires the prior approval of the Labor Commissioner under sections 16436 and 16437 of these regulations.

Note: Authority cited: Section 1773.5, Labor Code. Reference: Sections 1729, 1771.5, 1773, 1773.1, 1775, 1776, 1777.5, 1778, 1813 and 1815, Labor Code.

 HISTORY 

   

1. New section filed 12-22-2008; operative 1-21-2009 (Register 2008, No. 52). For prior history of section 16435.5, see Register 2004, No. 43.