NAC338.110. Determination by awarding body: Procedure; factors for consideration; objection to determination.

     1. Upon its own initiative or upon notice from the Labor Commissioner of a possible violation, an awarding body shall cause such an investigation to be made as may be necessary to determine whether a violation of a provision of NRS 338.010 to 338.090, inclusive, or NAC 338.005 to 338.125, inclusive, was committed in the course of the execution of a contract for a public work that was awarded by the awarding body. Such an investigation must commence and conclude within a reasonable time, except that the investigation must not exceed 30 days unless an additional period of time is approved by the Labor Commissioner. Upon commencing an investigation upon its own initiative, an awarding body shall notify the Labor Commissioner in writing as soon as is practicable.

     2. If a contractor or subcontractor fails to provide to an awarding body information requested by the awarding body pursuant to subsection 4 of NAC 338.094, the awarding body may request the Labor Commissioner to issue subpoenas on behalf of the awarding body to assist the awarding body in its investigation.

     3. In making a determination, an awarding body shall consider:

     (a) Information contained in any claim or complaint against the contractor or subcontractor that was received by the Labor Commissioner;

     (b) Oral or written statements made by employees of the contractor or subcontractor or witnesses during interviews conducted by the awarding body;

     (c) Information contained in certified payroll reports applicable to the public work; and

     (d) Any other information that could reasonably assist the awarding body in determining whether a violation was committed.

     4. Upon the conclusion of its investigation, an awarding body shall issue, in writing, the determination issued by the awarding body and shall:

     (a) Submit a copy of the determination issued by the awarding body to the Labor Commissioner;

     (b) Serve a copy of the determination issued by the awarding body upon the contractor or subcontractor alleged to have committed the violation;

     (c) If the contractor or subcontractor alleged to have committed the violation was not the prime contractor for the public work, serve a copy of the determination issued by the awarding body upon the prime contractor for the public work;

     (d) Serve a copy of the determination issued by the awarding body upon the person who filed the complaint; and

     (e) Serve a copy of the determination issued by the awarding body upon any other person who filed a claim or a complaint with the Labor Commissioner that related to the investigation.

     5. If, after an investigation, an awarding body issues a determination that a contractor or subcontractor has failed to pay the correct wages to workers employed by the contractor or subcontractor in connection with a public work, the awarding body shall withhold and retain the wages due and owing to the workers and any applicable penalties.

     6. In addition to submitting a copy of the determination issued by the awarding body to the Labor Commissioner pursuant to subsection 4, the awarding body shall provide to the Labor Commissioner the following information pertaining to the determination issued by the awarding body:

     (a) A detailed narrative of the findings of the investigation;

     (b) The name and address of the contractor or subcontractor and its responsible officers;

     (c) If a subcontractor is alleged to have committed the violation, the name and address of:

          (1) The prime contractor for the public work and its responsible officers; and

          (2) Any intermediate subcontractor and the respective responsible officers of that subcontractor;

     (d) A copy of the contract for the public work, or an excerpt of the portion of the contract that the Labor Commissioner determines is relevant, which must include, without limitation, information identifying the deadline by which bids on the contract were accepted, the date on which the contract was awarded and the scope of work performed by the contractor or subcontractor;

     (e) Copies of any claims or complaints received by the awarding body from the Labor Commissioner relating to the investigation;

     (f) Copies of the applicable certified payroll reports and nonperformance payroll reports submitted by the contractor or subcontractor;

     (g) If applicable, signed interview statements of employees of the contractor or subcontractor;

     (h) If applicable, computations of penalties and back wages for each worker, including, without limitation, the name, address and social security number of the worker; and

     (i) The identifying number requested from the Labor Commissioner by the public body pursuant to NRS 338.013.

     7. If a person who filed a claim or complaint with the Labor Commissioner relating to the investigation that is the subject of the determination issued by the awarding body submits a request to the awarding body to receive the information submitted by the awarding body to the Labor Commissioner pursuant to subsection 6, the awarding body shall provide to the person that information.

     8. A person who has been served a copy of a determination issued by an awarding body pursuant to subsection 4 and who is aggrieved by the determination issued by the awarding body may file a written objection with the Labor Commissioner within 15 days after the date of service of the determination issued by the awarding body. Such an objection must be accompanied by a short statement of the grounds for the objection and evidence substantiating the objection. The awarding body issuing the determination shall insert a statement to this effect into the determination issued by the awarding body.

     (Added to NAC by Labor Comm’r by R115-01, eff. 4-5-2002; A by R207-03, 2-19-2004)