City of Fitchburg, MA Chapter 42 Wage Theft and Responsible Employers

[HISTORY: Adopted by the City Council of the City of Fitchburg 3-5-2020 by Ord. No. 56-2020.[1] Amendments noted where applicable.]

[1] Editor's Note: This ordinance also repealed former Ch. 42, Residents' Job Preference Program, adopted 3-18-1997 by Ord. No. 195-96, as amended.

§ 42-1 Incorporation into procurement document.

The following section shall be incorporated into the City of Fitchburg's procurement documents and shall be incorporated into every new construction contract and every renewal term of a construction contract entered into after March 5, 2020, unless precluded by an existing contract or otherwise prohibited by law:

The Contractor certifies that neither it nor any of its subcontractors have been subject to a final decision by a state or federal authority resulting from a violation of MGL c. 149, MGL c. 151, the Fair Labor Standards Act, or any other state or federal laws regulating the payment of wages within three years prior to the date of the contract; or certifies that it has provided copies of any and all of the above to the City prior to the date of the contract and has obtained any wage bond or insurance required under § 42-2E of the Code of the City of Fitchburg or other applicable law; and certifies that while the contract is in effect, it will report any instance of the above to the City within five days of the contractor's receipt.

Further, all requirements, duties, rights, and remedies outlined in §§ 42-2 through 42-4 of Chapter 42 of the Code of the City of Fitchburg are incorporated into this Contract by reference with the same force and effect as though fully set forth herein. To the extent that there is any conflict between the terms of this Contract and the terms of that Chapter, the terms of the Chapter shall control.

§ 42-2 Bidder/proposer requirements.

The following provisions shall be included into the City of Fitchburg's procurement documents on or after March 5, 2020, unless precluded by an existing contract or otherwise prohibited by law:

A. The bidder or proposer and all trade contractors and subcontractors under the bidder or proposer must certify that they have not been subject to a final decision by a state or federal authority resulting from a violation of MGL c. 149, MGL c. 151, the Fair Labor Standards Act, or any other state or federal laws regulating the payment of wages within three years prior to the date vendors submit their bids or proposals.

B. The bidder or proposer and all trade contractors and subcontractors under the bidder or proposer must report any criminal or civil judgment, administrative citation, final administrative determination, order, or debarment arising from a violation of MGL c. 149, MGL c. 151, the Fair Labor Standards Act, or any other state or federal laws regulating the payment of wages while any of their bids or proposals to the purchasing agent official is pending and, if awarded a contract, during the term of the resulting contract, within five days of vendor's receipt.

C. Any bidder subject to a state or federal debarment for violation of the above laws, either voluntarily or involuntarily, or prohibited from contracting with the Commonwealth or any of its agencies or subdivisions will be deemed not responsible and their bids or proposals shall be rejected. Such vendors shall be deemed not responsible for the entire term of debarment or other stated period of prohibition.

D. Any trade contractor and subcontractor subject to a state or federal debarment for violation of the above laws, either voluntarily or involuntarily, or that has been prohibited from contracting with the Commonwealth or any of its agencies or subdivisions will be deemed not responsible and their bids or proposals shall be rejected. Such vendor shall be deemed not responsible for the entire term of debarment or other stated period of prohibition. During the term of a contract, upon a finding or order of such debarment or prohibition, the City may terminate the contract at its sole discretion.

E. The bidder or proposer and all trade contractors and subcontractors under the bidder or proposer awarded a contract that receive a federal or state criminal or civil judgment, administrative citation, order, or final administrative determination resulting from a violation of MGL c. 149, MGL c. 151, the Fair Labor Standards Act, or any other state or federal laws regulating the payment of wages during the term of the contract, or that have disclosed any such violation under § 42-1 of the Code of the City of Fitchburg, and that are not otherwise prohibited from public contracting may be required by the City to obtain a wage bond or other form of suitable insurance in an amount up to the aggregate of one year's gross wages for all employees, based on an average of its total labor costs for the past two years. Such bond or insurance must be maintained for the terms or extensions of any contract unless otherwise agreed in writing, and proof of such bond or insurance must be provided to the City upon demand.

§ 42-3 Conditions for bidding/subcontracting.

Bidders and proposers, trade contractors that are subject to MGL c. 149 and 149A, and subcontractors subject to MGL c. 149, § 44F shall be subject to the following conditions for bidding or subcontracting and, for the duration of any contract, shall comply with the following obligations:

A. Meet their obligations established under MGL c. 149 to pay the appropriate, lawful, prevailing wage rates to their employees;

B. Maintain appropriate industrial accident insurance coverage for all the employees on the project as required by MGL c. 152.

C. Properly classify employees as employees rather than independent contractors and treat them accordingly for purposes of workers' compensation insurance coverage, unemployment taxes, social security taxes, and income tax withholding, all as required by MGL c. 149, § 148B.

D. Certify, at the time of bidding, that all employees employed on the worksite will have successfully completed a course in construction safety and health approved by the United States Occupational Safety and Health Administration that is at least 10 hours in duration prior to the commencement of that employee's work, ensure that all employees working at the worksite possess such qualifications at all times throughout the duration of their work on the project, and furnish upon demand proof of successful completion of the course.

E. Comply with the applicable health and hospitalization requirements of the Massachusetts Health Care Reform law established by Chapter 58 of the Acts of 2006, as amended, and regulations promulgated under that statute.

§ 42-4 Violations and penalties.

An entity or person subject to a final decision by a state or federal authority implicating a violation of any provision set forth in § 42-3 of this chapter shall be, at the sole discretion of the City, subject to one or more of the following sanctions:

A. Suspension of work on the project until compliance is obtained;

B. Withholding of payment due under contract or subcontract until compliance is obtained;

C. Removal from further work on the project and immediate termination of the contract;

D. Debarment from future bidding opportunities and contracts for the City of Fitchburg for a period of up to three years.