Monthly Archives: March 2013

PREVAILING WAGE BASICS

Many contractors are confused about their obligations to pay the Washington state prevailing wage when contracting to perform work on a public works project.  This attempts to provide contractors with very basic data, and where to find more information if needed.

1.  Public works projects are broadly defined in Washington to include those projects erected at public expense.  A fairly well-known case involving the Performing Arts Center in Wenatchee, Washington held that where any public money or assets are involved, then it is a public work.  Thus, the fact that the greatest bulk of the financing came from a private non-profit did not convert the project into a private work.  The bid packets should say whether the prevailing wage applies, but a careful contractor in doubt will inquire, in writing, to the Industrial Statistician of the Washington State Department of Labor & Industries.

2.  The prevailing wage applies to the scope of the work performed, not the job title.  Accordingly, a contractor may call its crew “laborers” but when they perform work tying iron they must be paid at the rate associated with iron workers.  The job title, or hiring documents, or workers’ experience is irrelevant.  It is the actual work being performed that determines each individual’s pay scale for each specific period during which that work is performed.  The “scopes” are found at RCW 296-27-010, et seq.

3.  If your particular scope does not appear to be addressed, then it is wise to obtain a written determination in advance from the Washington State Department of Labor & Industries, industrial statistician.  There is a case in Washington where the contractor did exactly that, but after the project was completed, the Department issued its “NOV” (notice of violation).  The contractor responded that it had asked specifically about the correct scope and pay, had received a response, had relied upon the response, had paid accordingly.  The court held that the contractor’s payments did violate the prevailing wage law, at RCW 39.12, but that the Department was estopped from issuing its NOV.  The contractor therefore was not required to make up the difference between what it paid and what it should have paid.

4.  The same scenario does not apply if a contractor obtains the opinion of only the local agent for the Department.  Only the industrial statistician has the authority to issue an opinion letter on the topic of scopes.  Accordingly, many contractors have sadly learned that: (a) the local agents often don’t really know; and (b) even if they do, their opinions don’t matter — legally.

5.  The prevailing wage law is found at RCW 39.12.  The contractor or subcontractor(s) must submit “intents” prior to performing public work, which can be found and submitted on-line.  Go to:  http://www.lni.wa.gov and type “prevailing wage” into the search box.

6.  “Affidavits” must be completed after the work is performed.  This is a verification under oath that the correct prevailing wages were actually paid.  Parties should not rely on this, as it is often a task left to lower level employees.  Again, these individuals often do not really know whether the correct wages were paid, and even more often do not know if the correct fringe / benefits were actually paid.

7.  The question of payment of the fringe into a bona fide trust is complicated and should be referred to an attorney or CPA with experience in auditing and accounting for Washington public works projects.  Your Uncle Joe’s CPA is NOT a good source for this information, nor is your Aunt Kathy’s divorce counsel.  I have handled such disputes for both wage claimants and contractors, and have learned that mistakes, fraud, and misinformation are prevalent.  Prudent contractors should not leave intents and affidavits to inexperienced personnel, even if that individual is on the management team and otherwise very capable.

FRIVOLOUS LIEN MOTIONS BRING RISKS

Washington State recognizes many different types of liens — the familiar mechanic’s lien in the construction industry, at RCW 60.04, plus at least 30 other varieties of lien devices to secure payment for various types of services rendered.  Almost all of those lien statutes bring with them the opportunity for the owner of the liened-upon property to bring a motion to expeditiously dismiss a frivolous lien.

Such motions are available, but as the saying goes, “Just because you CAN, does not necessarily mean that you SHOULD.”  Motions to dissolve liens as frivolous entitle the prevailing party to an award of attorney fees.  Therefore, before one files a motion to dismiss a lien as frivolous, a close examination of all the facts is required.  You may think that you have all the evidence necessary to immediately prevail, but if you are wrong, such motions can typically cost from $3,000 to $8,000.

Moreover, the case law runs strongly in favor of the lien claimant.  While the courts have said that such motions are heard as a “trial by affidavit,” the courts have also stated that the summary procedure does not replace a full trial on the merits where the matters in issue are not clear-cut.  A review of Washington case law, both published and unpublished opinions, reflect that such motions are rarely successful.

In my practice, I have asked other attorneys to send me their briefings and Orders on such motions.  I have encountered only two successful motions briefings in the last five (5) years.  I brought one, and a colleague brought the other.  Both were on facts that show successful motions rest upon the lien itself being invalid on its face.  For example, one lien clearly included amounts earned over the preceding five years relating to multiple projects, but liened against only one property.  Moreover, the owner of the single property was completely unrelated in any way to the owners of the other parcels where work had been performed that was being claimed.

The second lien that was dismissed as frivolous described work performed that could not have been performed on the liened-upon property.  There, the lien sought payment for work performed in common areas of the condominium, where the liened-upon property was a single family residence.  The case law makes it clear that an invalid lien is not necessarily frivolous, but a truly frivolous lien is one so wholly devoid of merit that its dismissal is without question.

Be wary of filing such motions, and be willing to assume the risk of an additional $3,000 to $8,000 in your gamble.  If you haven’t been to the casino lately, perhaps you do not want to play this game, either.

LOSING YOUR JOB – POSSIBLE CAUSES, APPROACHES, AND LOOKING FORWARD

Receiving the news that you lost your job is shocking and sometimes downright depressing.  I’ve seen too many clients in this position in the last year who have excellent evaluations, numerous customer compliments, and really good numbers for objective performance measures (such as sales, profits, or whatever objective measures the employer may use).  What then, is the explanation?  In many cases, you may never know.  Employers are reluctant to give you the real truth about this.  Employers can behave toward the separated employee the way a super-model treats a nerdy admirer, “If I tell you why we cannot be together, you’ll just want to argue that you can change — and we both know that you can’t.”

But if you are to have career success in future, it may be important to find out the real story.  I have myself been reluctant to tell people the truth, which usually — and counter to what most people believe — has nothing to do with job performance.  These are also truths that job candidates sometimes do not want to face.  If you want the position, however, you need to acknowledge the fact that you are part of a larger culture.  We all have biases, and we ALL have less than perfect appearance, personal habits, maturity, personal lives and the other myriad ways in which we judge each other.  Your challenge is to find out which of your less than sterling qualities caught the attention of your co-workers, supervisor, or Human Resources department.  Here is a partial list of items I have collected from professional and personal experience over the years:

1.  Did her job well, but spent too much time on the telephone with her personal matters.  I don’t care that it was on her breaks.  I didn’t want to hear her making dates, disciplining her whiny kids, or talking to her mother.  [The person about whom this was said was incredulous — that WAS on my break time.  It never affected my job performance!  Can they fire me for that?  ANSWER:  Unless protected by a union contract or civil service rules governing public employees, the answer is YES.]

2.  He hit his sales numbers, but he sent emails out that were angry, hostile and eventually felt threatening.  [The employee responded, “I was angry because my co-workers were consistently violating the policies that impacted my own job performance and evaluations.  Can they really fire me for that?”  In his case, no.  He was a civil service employee, and termination for top secret reasons  unrelated to job performance violated the civil service rules.  He was reinstated, but now knew that his co-workers perceived him in a very negative way.  He did not stay in that job long, and he learned to approach this problem differently in his new position.]

 

How do you find out what the REAL story is?  You can: (a) Ask your employer for a truly meaningful exit interview.  Advise, “I obviously made some serious mistakes here.  I understand and accept that I need to move on.  For me to do that, can you please be very honest with me about my shortcomings?  It clearly isn’t those specific items listed on my performance evaluations.”  (b) You can send a written request to your employer demanding the reason for your termination.  The letter can be perceived as a pre-litigation device, however.  It is less likely to be a serious, in depth and helpful response.  (c) You can, and should, ask your former supervisor and co-workers for their feedback.  Let them know this is purely for your own personal and professional growth, which you take seriously.  Do not hint that since it wasn’t performance related it “must” be some type of discrimination.  That mind set is common, but isn’t true.  You are just as likely to be fired for poor personal hygiene, refusal to wash your own dishes, angry outbursts or hostile emails as you are to be fired for specific performance-related issues.

In Washington state, as in most states, termination for poor inter-personal relationships and lack of good judgment in any specific occasion is a legal basis for termination.  Even civil service employees can be discharged for this if the proper steps are followed.  Many employers have difficulty facing the terminated individual and saying, “Honest to goodness, I just couldn’t be in another meeting with you when your breath is so bad and your clothes smell like cigarette smoke.”  It becomes your own sleuthing responsibility to figure it out.  If you cannot without assistance, then it may be a good career investment to hire a professional to help you with this in an honest, but compassionate, manner.

If you STILL believe that the reason for your termination was unlawful (based upon your race, religion, sex, sexual orientation, disability, pregnancy, whistelblowing, etc.) — THEN you will have more success engaging counsel to pursue it if you have worked through the above exercise.  Good luck!

JOB OPENINGS LOCALLY

 

To view the full job posting for any opening at King County, click here:

http://agency.governmentjobs.com/kingcounty/default.cfm

 

To view the full job posting for any opening at State of Washington, click here:

http://agency.governmentjobs.com/washington/default.cfm

 

For local jobs with the federal government, you have to sign up for a national job listserve, and then delete where no local jobs with your own skill set are sent.

USAJOBS site directly at http://usajobs.gov