| (F) any information necessary to support the complaint.
(4) Investigation. Within five days of receipt of a complaint,
including necessary supporting information, or at any time upon its own motion,
the department will provide written notice to the contractor or subcontractor
of an alleged violation. The contractor or subcontractor shall have ten days
in which to respond in writing to the information presented against it.
(5) Good cause determination.
(A) The director of the department's Construction Division
shall determine, within 30 calendar days of the date a complaint is filed
whether good cause exists to believe that a contractor or subcontractor has
committed a violation of the contract's prevailing wage rate requirements.
Such determination will be based upon information submitted by the complainant,
the contractor or subcontractor, and in accordance with subsection (e) of
this section. The department shall provide written notice of its determination
to the contractor and/or subcontractor and to the complainant. The department
shall retain any amount due under the contract pending a final determination
of the violation.
(B) For building contracts, the determination of good cause
shall be made by the director of the department's Maintenance Division.
(6) Discrimination. A contractor or subcontractor shall not
discriminate against any employee filing a complaint under the provisions
of Government Code, Chapter 2258.
(7) Appeal. If the department determines that good cause does
not exist, the complainant may file an appeal in accordance with §1.21
et seq. of this title (relating to Procedures in Contested Cases).
(8) Resolution. If the department provides written notice to
the parties that good cause exists, the parties shall have 14 days from the
date of the written determination to voluntarily resolve the wage dispute
by written agreement. If the parties fail to voluntarily resolve the dispute,
the issue of the alleged violation, any penalties owed to the department,
and any amounts owed to the worker shall be submitted to binding arbitration
in accordance with the provisions of Civil Practice and Remedies Code, Chapter
171. The department is not a party to the arbitration proceeding.
(9) Reimbursement.
(A) If the arbitrator determines that a violation of this section
occurred and awards backpay, the department shall use any amounts retained
under this subsection to reimburse the worker and collect any penalties due
under subsection (g) of this section. The department shall issue a check to
the complainant within 30 days after receiving the arbitrator's decision.
(B) If the worker and the contractor or subcontractor voluntarily
resolve the wage dispute, a signed written agreement which specifies the terms
of the agreement shall be submitted to the director of the department's Construction
Division. If the agreement calls for backpay, a signed statement from the
worker which acknowledges receipt of the backpay must be attached to the agreement.
The department shall release any amounts retained within seven days of receiving
this information.
(g) Penalties. A contractor or subcontractor who violates the
prevailing minimum wage requirements of a public works contract is liable
to the department for a penalty of $60 for each worker employed, for each
calendar day, or portion thereof, such worker is paid less than the minimum
wage rate stipulated in the contract. The money collected under this subsection
shall be used by the department to offset the costs incurred in the administration
of this section.
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| Source Note: The provisions of this §9.5 adopted to be effective August 19, 1994, 19 TexReg 6120; amended to be effective February 20, 2000, 25 TexReg 1145; amended to be effective January 2, 2002, 26 TexReg 11047 |
