HB95

SECTION 1. Chapter 388, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

"§388- Contractor liability; unpaid wages. (a) A general contractor entering into or under a contract in the State for the erection, construction, alteration, or repair of a building, structure, or other private work shall assume and is liable for any debt owed to a claimant for wages incurred by a subcontractor at any tier acting under, by, or for the general contractor, for the claimant's performance of labor included in the contract between the general contractor and the owner. The general contractor's liability under this section shall extend only to unpaid wages to the claimant, including any interest owed, but shall not extend to penalties, liquidated damages, or any wage, benefit, or contribution claims that result from or is caused by retainage by the general contractor.

A general contractor shall not evade or commit any act that negates the requirements of this section; provided that this section does not prohibit a general contractor or subcontractor from contracting with or enforcing any lawful remedies against a subcontractor for the liability created by the nonpayment of wages by the subcontractor or by a subcontractor at any tier working under another subcontractor.

(b) Notwithstanding any law to the contrary, actions to enforce a general contractor's liability for unpaid wages may include the following:

(1) The director may enforce liability for unpaid wages established by subsection (a) pursuant to chapter 387, chapter 388, or a civil action against a general contractor. The general contractor's liability shall be limited to unpaid wages, including any interest owed.

(2) A joint labor-management cooperation committee established pursuant to 29 United States Code, section 175a of the federal Labor Management Cooperation Act of 1978 may bring an action in any court of competent jurisdiction against a general contractor or subcontractor at any tier for unpaid wages owed to a claimant by the general contractor or subcontractor for the performance of private work, including unpaid wages owed by the general contractor, pursuant to subsection (a). The court shall award a prevailing plaintiff in such an action reasonable attorney's fees and costs, including expert witness fees. Prior to commencement of an action against a general contractor to enforce the liability established by subsection (a), the committee shall provide the general contractor or subcontractor who employed the claimant, with at least a thirty-day notice by first class mail. The notice need only describe the general nature of the claim and shall not limit the liability of the general contractor or preclude subsequent amendments of an action to encompass additional claimants employed by the subcontractor.

No other party may bring an action against a general contractor to enforce the liability established in this section.

(c) Unless otherwise provided by law, property of the general contractor may be attached for the payment of any judgment received after trial and pursuant to this section.

(d) An action brought pursuant to this section shall be filed within two years after actual completion of the work covered by the direct contract between the owner and general contractor.

(e) This section does not apply to work performed by an employee of the State or any political subdivision of the State.

(f) Upon request by a general contractor to a subcontractor, the subcontractor and any lower tier subcontractors under contract with the subcontractor shall provide payroll records, which, at a minimum, shall contain the information set forth in section 387-6 of its employees who are providing labor on a private work. The payroll records shall be marked or obliterated only to prevent disclosure of an employee's full social security number, except that the last four digits of the employee's social security number shall be provided. Upon request of a general contractor to a subcontractor, the subcontractor and any lower tier subcontractors under contract with the subcontractor shall provide the general contractor with award information that includes the project name, name and address of the subcontractor, lower-tier subcontractor with whom the subcontractor is under contract, anticipated start date, duration, and estimated journeyperson and apprentice hours, and contact information for the subcontractors on the project. A subcontractor's failure to comply with this subsection shall not relieve a general contractor from any of the obligations contained in this section.

(g) For purposes of this section:

"General contractor" means a contractor who has a direct contractual relationship with an owner.

"Retainage" means a percentage of what a general contractor withholds from payment to a subcontractor until construction of the project has been satisfactorily completed in all aspects according to contract.

"Subcontractor" means a contractor who does not have a direct contractual relationship with an owner. The term includes a contractor who has a contractual relationship with a general contractor or with another subcontractor.

(h) The obligations and remedies in this section shall be in addition to any obligations and remedies otherwise provided by law, except that nothing in this section shall be construed to impose liability on a general contractor for anything other than unpaid wages, including any interest owed.

(i) Nothing in this section shall alter an owner's obligation to pay a general contractor, or the general contractor's obligation to pay a subcontractor, in a timely manner; provided that a general contractor may withhold all sums owed to a subcontractor if the subcontractor does not provide the information requested under paragraphs (1) and (2) of subsection (f) in a timely manner and until such time that the information is provided.

(j) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application."

SECTION 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 3. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	95
THIRTIETH LEGISLATURE, 2019
STATE OF HAWAII