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Council votes to allow prevailing wage complaints to move forward

Friday, October 12, 2012 by Josh Rosenblatt

Austin City Council members on Thursday cleared the way for complaints related to five city construction projects to move forward into the arbitration process, but not before making clarifying amendments to the language and deciding that an evaluation of the process by which workers can make prevailing wage complaints is long overdue.

Under the terms of the current state prevailing-wage law, when a worker makes a complaint, the public body – in this case the city’s Contract Management Department – investigates the claim and works with the contractor or subcontractor to resolve the issue. However, if the issue is not resolved, City Council is empowered by state law to make an initial determination on whether good cause for the complaint exists. By doing so, Council enables the complainant to move his case forward toward eventual arbitration, regardless of whether Council determined there is good cause or not. The initial determination is the necessary component.

The resolution Council approved Thursday concerns several employee complaints related to five city construction projects, two of which staff determined had good cause: the Dittmar Gym Enclosure rebid and Austin Resource Center for the Homeless (ARCH) shower renovations. The rest it determined did not.

Under state law, government contracts require that employees are paid no less than the wage rates and fringe benefits found prevailing in the area for the type of work they perform.

Two issues arose during Thursday’s discussion. The first related to concerns some of the complainants had about the Contract Management Department’s (CMD) handling of prevailing wage complaints. Aaron Johnson, a lawyer for two of the complainants listed in the resolution, said CMD sets standards of proof no worker could ever meet.

“We know the City Council takes the wage laws very seriously,” Johnson said. “We are alarmed about some systemic problems we’re seeing in Contract Management. … There has been a general hostility from CMD toward these claims.” In particular Johnson said CMD requires what he called “overwhelming proof” and that staff be “convinced beyond a shadow of a doubt” of the value of the complaint before making an initial determination. Johnson said those requirements essentially ensure that workers will never see their cases get to arbitration, or even negotiations. Along with another worker’s attorney and a representative from the electricians union, Johnson asked Council to investigate CMD and make determinations as to how to improve the wage-complaint process.

Council Member Mike Martinez said the process needs to be improved if the city hopes to make its prevailing wage law stick. He said he would work with CMD to improve their management of those complaints and even bring in the city auditor to look at the process if necessary. 

“We’re in a tough spot because we’ve been told about this process that doesn’t have the teeth or enforcement mechanisms that some of these folks would like to see,” Martinez said. “What’s the point of having a prevailing wage law if we’re not going to enforce it? We need to come up with stronger measures in terms of our investigation and our ability to enforce these rules. At a minimum we need to enforce the wages we’ve established thus far.”

CMD Director Rosie Truelove said she had “never heard these complaints of hostility before” but that her department is working on ways to mitigate the issues that were raised, including looking into ways of being more punitive with contractors who don’t pay the prevailing wage.

“We’re working with the Purchasing Department to create a contractor evaluation program that would help us hold the contractors accountable for the work that’s performed, and included in that is their compliance with prevailing wage laws,” Truelove said.

The second issue Council had with the resolution concerned its language. In its original form, the resolution stated that the reason why staff decided certain complaints did show good cause that wage violations had occurred is because “the evidence does not support” such claims. But Council Member Laura Morrison expressed concern that such firm language, signed off on by City Council, could doom any complaint in the eyes of an arbitrator. Instead she requested that softer language that leaves open the possibility of a future good-cause determination be substituted.

“It could have an effect, so we should try to find language that’s clear we’re not saying there isn’t any good cause, just that we haven’t found any,” Morrison said.

Taking that cue, Martinez came back from Council recess with a new version of the resolution that substituted the phrase “the evidence does not support” with “there is insufficient evidence at this time to make” an initial determination of evidence of good cause.

Council approved the amended resolution on a vote of 6-0, with Spelman off the dais.

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