§ 66-254. Compliance and enforcement.

(a)

Contractor to cooperate . The contractor shall permit the city to observe work being performed at, in, or on the project for which the construction contract was issued.

(b)

Complaint procedures and sanctions .

(1)

A covered employee, or former covered employee, who believes that this section applies to him or her and that a covered employer is not complying with the requirements of this section, has a right to file an administrative complaint with the city's procurement director. Any individual or entity may also file a complaint with the procurement director of the city on behalf of covered employee for investigation by the city.

(2)

Complaints by employees of alleged violations shall be made in writing within one year after the alleged violation occurred. No complaint shall be within the jurisdiction of the city in this section if the complaint is filed more than one year after the alleged violation occurred.

(3)

The complaint shall be signed by the person making the complaint, referred to as complainant and, if the complainant is not the covered employee, by the covered employee as well; shall be sworn to or affirmed; and shall, at a minimum, state the full name and address of the complainant; the full name and address of the covered employer against whom the complaint is being made, referred to as the respondent; the facts upon which the complaint is based; and such other information as may be required by the city. The complaint may be filed by personal delivery, ordinary mail, or certified mail, addressed to the city's procurement director.

(4)

The city's procurement official shall notify the covered employer, referred to as the respondent, by providing the employer with a copy of the complaint by certified mail or personal delivery. Within 30 working days after a copy of the complaint has been served upon the respondent by the procurement director, the respondent may file an answer thereto. If an answer is filed, the answer shall be in writing and contain, at a minimum, a separate and specific response to each and every particular of the complaint, or a denial of any knowledge or information thereof, sufficient to form a belief. Any allegation of the complaint which is not denied shall be deemed admitted.

(5)

If an answer is filed, the procurement director shall cause a copy of the answer to be served on the complainant. If the respondent elects not to answer the complaint, then the matter shall proceed on the evidence in support of the complaint.

(6)

Whenever a verified written complaint is filed pursuant to this section, the procurement director shall make a prompt investigation of all allegations of violations in connection therewith and forward to the city administrator a written summary of the investigation within 60 days after the complaint is filed. If, upon review of the complaint, answer (if filed), and investigation, the city administrator determines that a violation of this section has occurred, the city shall, within 30 working days of a finding of noncompliance, issue a notice of corrective action, in writing, to the respondent, specifying all areas of noncompliance and deadlines for resolutions of the identified violations. A copy of the city administrator's notice of corrective action shall be sent to the complainant and the respondent by certified mail, return receipt requested, or by hand delivery.

(7)

If a respondent fails to comply with any or all of the resolutions for the identified violations, within the deadlines provided in the notice, the city administrator may issue an order, in writing, to the respondent, by certified mail or hand delivery, notifying the respondent to appear at an administrative hearing before one of the city's sitting special masters, to be held at a time to be fixed in such order. A copy of the order shall also be sent to the complainant by certified mail or hand delivery.

(8)

The city administrator shall also provide a written report to the city commission, informing them of the complaint, which report shall include a brief summary of the facts at issue, the results of the city's investigation, and the recommended administrative disposition of the complaint (including any finding of noncompliance and subsequent recommendation for corrective action).

(9)

The hearing proceedings shall be informal, and shall afford the respondent the right to testify in his/her own defense, present witnesses, be represented by counsel, submit relevant evidence, cross examine witnesses, and object to evidence.

(10)

The proceedings shall be recorded and minutes kept by the city. Any respondent requiring verbatim minutes for judicial review may arrange for the services of a court reporter at the expense of the respondent.

(11)

Upon the close of the hearing, the special master shall render a decision in writing determining whether or not the respondent is in compliance; or whether other action should be taken; or whether the matter should be continued, as the case may be; and stating the reasons and findings of fact.

(12)

The city shall send a true and correct copy of the order by certified mail, return receipt requested, or by hand delivery, to the respondent and complainant.

(13)

The special master's findings shall constitute the final administrative action of the city for purposes of judicial review under state law. An aggrieved party, including the city administration, may appeal a final administrative order of a special master to the circuit court.

(14)

If a respondent fails to seek timely appellate review of an order of the special master, or to comply timely with such order, the city may pursue the enforcement of sanctions set forth in subsection 66-254(c).

(c)

Private right of action against covered employer . Any covered employee or former covered employee of a covered employer may, instead of, but not in addition to, utilizing the city administrative complaint procedures in subsection 66-254(b), bring an action under federal or state law to enforce the provisions of this section by filing suit against the covered employer in any court of competent jurisdiction.

(d)

Sanctions against contractors . For violations of this section, a contractor may be sanctioned by requiring the contractor to pay wage restitution at the contractor's expense for the affected covered employees; additionally, the following sanctions may also be imposed:

(1)

The city or special magistrate may impose damages, for each week that the covered employee was found to have not been paid in accordance with this section; and/or

(2)

The city may suspend payment under the covered contract and/or terminate the contract with the contractor; and/or

(3)

The city may declare the contractor ineligible for future service contracts for up to three years or until all restitution has been paid in full to the covered employee and all penalties (if any) paid to the city, whichever is longer; and/or

(4)

In order to compensate the city for the costs of investigating and remedying the violation, the city may be awarded its reasonable costs for investigating and defending the complaint and remedying the violation.

(e)

Public record of sanctions . All such sanctions recommended or imposed shall be a matter of public record.

(f)

Sanctions for aiding and abetting . The sanctions in section 66-254 shall also apply to any party or parties aiding and abetting in any violation of this section.

(g)

Retaliation and discrimination barred . A covered employer shall not discharge, reduce the compensation of, or otherwise discriminate or take adverse action against any covered employee in retaliation for exercising the rights protected under this section including, without limitation, making a complaint to the city, under this section; or informing any person about any party's alleged noncompliance with this section; or informing any person of his or her potential rights under this section and to assist him/her in asserting such rights. Protections under this subsection (g) shall apply to any person who mistakenly, but in good faith, alleges non-compliance with this section. Taking adverse action against a person within 90 days of the person's exercise of rights protected under this section shall raise a rebuttable presumption of having done so in retaliation for the exercise of such rights. Allegations of retaliation or discrimination, if found true, shall result in an order of restitution and reinstatement of a discharged covered employee with back pay to the date of the filing of the complaint with the city.

(h)

Enforcement powers . If necessary for the enforcement of this section, the special magistrate may issue subpoenas, compel the attendance and testimony of witnesses and production of books, papers, records, and documents relating to payroll records necessary for hearing, investigations, and proceedings. In case of disobedience of the subpoena, the city attorney may apply to a court of competent jurisdiction for an order requiring the attendance and testimony of witnesses and production of books, papers, records, and documents. Said court, in the case of the refusal to obey such subpoena, after notice to the person subpoenaed, and upon finding that the attendance or testimony of such witnesses of the production of such books, papers, records, and documents (as the case may be) is relevant or necessary for such hearings, investigations, or proceedings, may issue an order requiring the attendance or testimony of such witnesses or the production of such documents, and any violation of the court's order may be punishable by the court as contempt thereof.

(i)

Remedies nonexclusive . No remedy set forth in this section is intended to be exclusive or a prerequisite for asserting a claim for relief to enforce the rights under this section in a court of law. This section shall not be construed to limit an employee's right to bring a common law cause of action for wrongful termination; provided, however, that if a complainant has previously initiated, or initiates, a civil action in a court of competent jurisdiction alleging a violation of this section, or other matter, with respect to the same grievance which is the subject of an administrative complaint pursuant to this section, then the administrative complaint shall not be (or shall no longer be, as the case may be) within the jurisdiction of the city under the administrative complaint procedures established herein.

(Ord. No. 4744-17, § 2, 1-29-2018)