Bill No.
43-15
Concerning: Contracts and Procurement
Wage
Requirements
Amendments
Revised:
1/28/2016
Draft No.
5
Introduced:
October
20. 2015
Enacted:
February
2. 2016
Executive:
February 9.
2016
Effective:
May
10. 2016
Sunset Date: --'-"No=n"""e'--------
Ch.
_1_,
Laws of Mont. Co.
2016
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
Lead Sponsor: Councilmembers Eirich and Navarro
Co-Sponsors: Council President Leventhal and Councilmember Riemer
AN ACT
to:
(1)
(2)
(3)
(4)
ill
require certain contractors or subcontractors to submit certain payroll records to the
Chief Administrative Officer;
specify the remedies for a violation of the wage or records requirements;
amend the causes for debarment or suspension; [[and]]
prohibit certain contractors or subcontracts from deducting certain amounts from
an
employee's paycheck: and
generally amend the County procurement laws.
By amending
Montgomery County Code
Chapter 1lB, Contracts and Procurement
Section 11B-33A and l lB-37
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* *
*
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
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BILL
No. 43-15
1
Sec. 1. [[Section]] Sections 11B-33A and llB-37
[[is]]
are amended as
follows:
11B-33A. Wage requirements.
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*
(e)
Wage requirement.
*
*
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(I)
Each covered employer must pay each employee who is not
exempt under subsection
(f)
a gross wage of at least $10.50 per
hour during the time the employee actually provides services to the
County. For employees who are not paid an hourly wage.
compliance with the wage requirement must be measured by
dividing the amount paid to the employee each pay period by the
number of hours worked each pay period.
(2)
The Chief Administrative Officer must adjust the wage rate
required under this subsection, effective July 1 of each year, by the
annual average increase,
if
any,
in
the Consumer Price Index for
all urban consumers for the Washington- Baltimore metropolitan
area, or any successor index, for the previous calendar year. The
Chief Administrative Officer must calculate the adjustment to the
nearest multiple of 5 cents, and must publish the amount of this
adjustment not later than March
1
of each year. Each adjustment
under this paragraph applies to any contract covered by this
Section which:
(A)
is
in
effect when the adjustment talces effect, or
talces effect during the next 12 months.
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(B)
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A covered employer must not make any deduction for any item
necessary for an employee to perform the essential job function
unless the deduction is permitted by Executive regulation.
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BILL
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43-15
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*
(f)
*
*
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°Exceptions to wage requirement.
The wage requirements of this
Section do not apply to any employee:
(1)
who performs no measurable work related to any contract with
the County;
(2)
who participates in a government-operated or -sponsored
program that restricts the earnings of or wages paid to employees
to a level below the wage required under this Section; or
(3)
who participates for no longer than 120 days in any calendar year
in a government-operated or -sponsored summer youth
employment program[[; or
(4)
for whom a lower wage rate is expressly set in a bona fide
collective bargaining agreement]].
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(g)
Wage reporting.
(1)
The Director must insert into each contract subject to this Section
a provision that requires a covered employer to submit to the
Director a report (on a schedule determined by the Director)
showing a summary of the wages paid to its employees, who
performed direct, measurable
~ork
under the contract, by gender
and race.
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ill
Each contractor and subcontractor must submit g complete
gmy
of
its payroll records for work performed on g contract covered
.Qy
this Section to the Chief Administrative Officer or g designee
within
14 days after the end of each [[payroll period]] quarter.
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ill
The payroll records must contain g statement signed
.Qy
the
contractor or subcontractor certifying that:
(A)
the payroll records are correct; and
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BILL
No. 43-15
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all
ffi
the wage rates paid are not less than those required
Qy:
this
Section.
Each payroll record must include:
(A)
the name, address, and telephone number of the contractor
or subcontractor;
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all
.(g
the name and location of the iob; and
each employee's:
ill
(ii)
(iii)
(iv)
name;
current home address, unless previously reported;
daily straight time and overtime hours;
total straight time and overtime hours for the payroll
period;
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.(y)
(vi)
rate of
oo;.
fringe benefits
Qy:
~
and amount;
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(vii) gross wages; and
(viii) the employer and the employee share of any health
insurance premium provided to the employee.
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ill
Each contractor or subcontractor must:
(A)
keep payroll records covering work performed
on~
contract
covered
:Qy
this Section for not less
work is completed; and
than~
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years after the
.ill}
subject
to
reasonable
or~
notice,
permit
the
Chief
Administrative Officer
designee to inspect the payroll
records at any reasonable time and as often as the Chief
Administrative Officer deems necessary.
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®
The Chief Administrative Officer
or~
designee must make payroll
records obtained from contractors or subcontractors under this
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!
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Section available for public inspection during regular business
hours for
~
years after the Chief Administrative Officer receives
the records, unless disclosure of!! record is prohibited under
federal or state law.
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cc2)1
m
[(3)]
{fil
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[(4)]
{2)
ccs)1
run
(i)
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Enforcement.
(1)
The Chief Administrative Officer must require each covered
employer to:
(A)
certify that the employer and each subcontractor is aware of
and will comply with the applicable wage requirements of
this Section;
(B)
keep and submit any records necessary to show compliance;
and
(C)
conspicuously post notices informing employees of the
requirements of this Section, and send a copy of each such
notice to the Chief Administrative Officer's designee.
(2)
The Chief Administrative Officer or!! designee must [enforce this
Section,] perform random or regular audits [and any other audit
necessary to do so,] and investigate any complaint of a violation of
this Section.
If
the Director determines that
~
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provision of this
~
Section has been violated, the Director must issue
written
decision, including imposing appropriate sanctions, and may
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BILL No. 43-15
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withhold from payment due the contractor, pending g final
decision, an amount sufficient to:
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[filill
CA)
oo
each employee of the contractor or subcontractor the
full
amount of wages due under this Section; [[and]]
[[(ill]]
{fil
satisfy
~
liability
of~
contractor for liquidated damages
as provided in this Section: and
!Q
(3)
reimburse the County for the cost of the audit.
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An
employer must not discharge or otherwise retaliate against an
employee for asserting any right under this Section or filing a
complaint of violation. Any retaliation is subject to all sanctions .
for noncompliance with this Section.
(4)
The sanctions of
S~ction
11B-33(b) which apply to noncompliance
with nondiscrimination requirements apply with equal force and
scope to noncompliance with the wage requirements of this
Section.
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(5)
Each contract may specify that liquidated damages for any
noncompliance with this Section includes the amount of any
unpaid wages, with interest, and that the contractor is jointly and
severally liable for any noncompliance by a subcontractor.
In
addition, each contract must specify:
(A)
that liquidated damages may be imposed on the contractor
in the event that a [a] covered employer violates the wage
reporting or payroll records reporting requirement in
subsection (g).,_ including for providing late or inaccurate
payroll records; and
(B)
that an aggrieved employee, as a third-party beneficiary,
may by civil action enforce the payment of wages due
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under this Section and recover any unpaid wages with
interest, a reasonable attorney's fee, and damages for any
retaliation for asserting any right under this Section.
.{fil
If
~
contractor or subcontractor fails to submit, or is late in
submitting, copies of any payroll record or other report required to
be submitted under this Section, the County may deem invoices
unacceptable until the contractor or subcontractor provides the
required records or reports, and may postpone processing
payments due under the contract or under an agreement to :finance
the contract.
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(
c)
llB-37. Debarment or suspension.
*
suspension may include:
(1)
*
*
Causes for debarment or suspension.
The causes for debannent or
conviction for commission of a criminal offense incident to
obtaining or attempting to obtain a public or private contract or
subcontract, or in the performance of the contract or subcontract;
(2)
conviction of embezzlement, theft, forgery, bribery, falsification
or destruction of records, receiving stolen property, kickbacks or
any other offense indicating a lack of business integrity;
(3)
conviction under state or federal antitrust statutes arising out of the
submission of bids or proposals;
(4)
violation of County contract provisions of a character which is
regarded by the Director to be so serious as to justify debarment
action. These provisions may include:
.;. 7 -
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BILL
No. 43-15
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(A)
deliberate failure without good cause to perform under the
specifications or within the time limit provided in the
contract; or
(B)
a record of failure to perform or of unsatisfactory
performance under the provisions of one or more contracts;
however, failure to perforril or unsatisfactory performance
caused by acts beyond the control of the contractor are not
a basis for debarment;
(5)
violation of the wage requirements in Section 11B-33A;
any other serious cause the Director determines to be so
compelling as to affect the competency or integrity of a potential
contractor, including debarment by another public entity; or
.(fil
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[(6)]
ffi
violation of the
Chapter 19A.
ethical standards set
forth
in this Chapter or
(
d)
Decision.
The Director must issue a written decision to debar or suspend.
The decision must:
(1)
(2)
state the reasons for the action taken; and
inform the debarred or suspended person of the right to an
administrative appeal, after the decision becomes final, to the
Circuit Court under the Maryland Rules.
(e)
The Director must send a copy of the decision to the person involved and
the Chief Administrative Officer who may approve, revise, or remand the
decision.
If
the Chief Administrative Officer· takes no action within 5
working days, the decision of the Director becomes final.
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(
f)
Appeal to court.
The debarred or suspended person may appeal the
decision to debar or suspend to the Circuit Court under the Maryland
Rules governing administrative appeals. The debarred or suspended
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No. 43-15
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person and the County may appeal the decision of the Circuit Court to the
Court of Special Appeals.
Approved:
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Approved:.
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~
This is a correct copy ofCouncil action.
194
~lh-~
Linda M.
~auer,
Clerk of the Council
{µ-
1c:/ozo1~
Date
.r
-9-