The following words and phrases, whenever used in this chapter,
shall be construed as defined in this section:
means the building official's certification under Chapter 16.16 of this code that the project complies with all applicable requirements for occupancy. The building official's signature on the final inspection card may serve as the certificate of occupancy.
means the prime contractor for the project.
means the City Manager or designee.
is a provision of the California Labor Code that requires
the employer to provide each employee, either bimonthly or at the
time of payment of wages, an itemized wage statement that contains
certain specified information concerning the employee's wages and
deductions.
is a provision of the California Labor Code that requires
the employer, at the time of hiring, to provide each employee a written
notice containing certain specified information about the employer,
the employee's rate of pay, worker's compensation insurance, and sick
leave.
means to deposit in United States mail, postage prepaid,
unless the parties have agreed in writing to receive notifications
by email in lieu of United States mail.
means construction of new buildings or structures including
additions to existing buildings and structures.
means the person or persons, firm, corporation, partnership
or other legal entity exercising ownership of the project.
means internal or external reconstruction, renovation, or
improvements to an existing building or structure that does not constitute
complete replacement of the existing building or structure.
means a construction project that requires a building permit.
means employees of the contractor or subcontractor.
means a person authorized to legally bind the owner and/or
contractor (for example, a corporate officer, general partner, or
managing member of a limited liability company).
means a judgment, decision or order, for which all appeals
have been exhausted or the time to appeal has expired, that was issued
by a court of law or an investigatory government agency authorized
to enforce applicable federal, state and local wage and hour laws,
including, but not limited to, the Federal Fair Labor Standards Act,
the California Labor Code, and the City of Sunnyvale Minimum Wage
Ordinance, and which has not been fully paid or satisfied. As used
in this subsection, "investigatory government agency" includes the
United States Department of Labor, the California Division of Labor
Standards Enforcement, the city of Sunnyvale, or any other governmental
entity or division tasked with the investigation and enforcement of
wage and hour laws.
(Ord. 3190-22 § 1)
A project that meets any of the following criteria is exempt
from the requirements of this chapter.
(a)
The project consists of less than fifteen thousand square feet of
new construction or remodeling.
(b)
The project is subject to prevailing wage requirements under state
law.
(c)
The contractor and all subcontractors are legally bound by an agreement
that establishes the terms and conditions of employment on the project,
commonly referred to as a project labor agreement or community workforce
agreement.
(Ord. 3190-22 § 1)
As a condition of approval for any building permit required
for a project, an applicant shall sign an acknowledgement that:
(a)
The owner, contractor, and all subcontractors on the project will
comply with all applicable provisions of this chapter and the California
Labor Code, including Labor Code Sections 2810.5 and 226a.
(b)
The owner and contractor are responsible for ensuring that the contractor
and all subcontractors on the project pay any wage theft judgments
that have been entered against them either before or during the construction
of the project.
(c)
The existence of an unpaid wage theft judgment against the contractor
or any subcontractor on the project may result in withholding of the
certificate of occupancy at the conclusion of the project.
(Ord. 3190-22 § 1)
Each day that work is performed on the project, the contractor
shall post, in a conspicuous place at each job site where work takes
place, the notice published each year by the city informing employees
of their rights under this chapter. The notice shall be written in
the top three languages spoken in the city based on the latest available
census information for the city.
(Ord. 3190-22 § 1)
Prior to issuance of approval of final occupancy of a project,
for each contractor or subcontractor whose portion of the work exceeds
one hundred thousand dollars or one percent of the value of the construction
cost of the project, whichever is greater, owner shall provide to
the city a pay transparency certification ("certification"), signed
by a representative of the owner, the contractor and any subcontractor
under penalty of perjury under the laws of the state of California.
The certification required under this section shall be in a form approved
by the city and contain the following.
(a)
A statement that:
(1)
Project construction employees of the contractor and any subcontractors
received written notice of the employers' pay practices as required
by California Labor Code Section 2810.5 and wage statements under
Labor Code Section 226(a); or
(2)
Project construction employees of the contractor and/or any subcontractors
are covered by a valid collective bargaining agreement that expressly
provides for the wages, hours of work, and working conditions of the
employee, and if the agreement provides premium wage rates for all
overtime hours worked and a regular hourly rate of pay for those employees
of not less than thirty percent more than the state minimum wage.
(See Labor Code Section 2810.5(c)).
(b)
A statement that the owner, contractor and any subcontractors have
no unpaid wage theft judgments.
(Ord. 3190-22 § 1)
(Ord. 3190-22 § 1)
(a)
Any person who is legally entitled to payment of an unpaid wage theft
judgment against the contractor or a subcontractor on a project whose
portion of the work exceeds one hundred thousand dollars or one percent
of the value of the construction cost of the project, whichever is
greater, may submit a complaint to the building official. The complaint
must include: (1) a copy of the Labor Commissioner's order, decision
or award; (2) a copy of the judgment entered by the Superior Court;
and (3) a declaration signed under penalty of perjury that the specified
contractor or subcontractor is the subject of an unpaid wage theft
judgment that is owed to the complaining party.
(b)
The complaint must be received by the building official before the
building official has issued a certificate of occupancy. After receiving
a complaint, the building official shall not issue the certificate
of occupancy unless the building official finds that the complaint
is not sustained.
(c)
The building official shall, with ten working days, mail written
notice of the complaint to the owner and contractor at the address(es)
on file with the city for the project. If the review of the complaint
will delay issuance of the certificate of occupancy, the building
official shall notify the owner and contractor as soon as practicable.
(d)
The owner or contractor may provide a written response to the complaint
within thirty working days of the mailing of the notice of alleged
violation. Failure to respond may be deemed an admission to the truth
of the facts alleged in the complaint.
(e)
After consideration of the complaint and the owner or contractor's
response, if any, the building official shall make a finding that
the complaint is either sustained or not sustained. The building official's
decision shall be mailed to owner, contractor, and complaining party.
(Ord. 3190-22 § 1)
(a)
If an owner or contractor is aggrieved by a decision of the building official pursuant to Section 16.80.070, the aggrieved owner or contractor may appeal the decision by submitting a written appeal with the community development department within ten working days of the mailing of the building official's decision. The appeal shall contain the facts and basis for the appeal. The appeal shall be accompanied by payment of the appeal fee adopted by the city council.
(b)
The hearing shall be heard by the hearing officer within thirty working
days of receipt of the appeal, or at a date and time agreed to by
the parties. The complaining party shall be the respondent at the
appeal hearing.
(c)
All parties involved shall have the right to offer testimonial, documentary,
and tangible evidence bearing on the issues, to be represented by
counsel, and to confront and cross-examine witnesses. Testimony may
be taken on oath or affirmation. The hearing shall not be conducted
according to formal rules of evidence. Any relevant evidence may be
admitted if it is the sort of evidence upon which reasonable persons
are accustomed to rely in the conduct of serious affairs.
(d)
The hearing shall be de novo. The complaining party must prove by
a preponderance of the evidence that the contractor or a subcontractor
on the project is the subject of an unpaid wage theft judgment that
is owed to the complaining party.
(e)
The hearing officer shall issue a written decision within ten working
days of the hearing. The decision shall be final and shall be subject
to judicial review according to the provisions and time limits set
forth in Code of Civil Procedure Section 1094.6.
(Ord. 3190-22 § 1)
The owner or contractor may cure a violation of this chapter
at any time, including a violation related to an unpaid wage theft
judgment, by providing evidence that the judgment has been paid, or
that it has been secured by a labor payment bond, lien release bond,
or similar security instrument in a form and amount sufficient to
ensure that any wage claims and penalties can be fully paid.
(Ord. 3190-22 § 1)
Nothing in this chapter shall be interpreted to authorize a
right of action against the city.
(Ord. 3190-22 § 1)
