Section 338.035 - Discharge of part of obligation of contractor or subcontractor engaged on public work to pay wages by providing bona fide fringe benefits in name of worker1. Except as otherwise provided in subsection 7, the obligation of a contractor engaged on a public work or a subcontractor engaged on a public work to pay wages in accordance with the determination of the Labor Commissioner may be discharged in part by providing bona fide fringe benefits in the name of the worker.2. A contractor or subcontractor may, pursuant to subsection 1, discharge any part of his or her obligation to pay wages in accordance with the determination of the Labor Commissioner only to the extent that the bona fide fringe benefits provided in the name of the worker are annualized.3. A contractor or subcontractor who, pursuant to subsection 1, discharges any part of his or her obligation to pay wages in accordance with the determination of the Labor Commissioner shall provide to the Labor Commissioner and the public body that awarded the contract for the public work any information requested by the Labor Commissioner or the public body, as applicable, to verify compliance with this section.4. In addition to any other remedy or penalty provided in this chapter, after providing the contractor or subcontractor with notice and an opportunity for a hearing, the Labor Commissioner shall, if the Labor Commissioner finds that the contractor or subcontractor has violated a provision of this section:(a) For the first violation, impose against the contractor or subcontractor an administrative penalty of not less than $20 nor more than $50 for each calendar day or portion thereof that each worker employed on the public work is affected by the violation, up to a maximum of $2,500;(b) For the second or any subsequent violation within 5 years after the date of imposition of an administrative penalty pursuant to paragraph (a), impose against the contractor or subcontractor an administrative penalty of not less than $20 nor more than $50 for each calendar day or portion thereof that each worker employed on the public work is affected by the violation, up to a maximum of $5,000;(c) Require the contractor or subcontractor to make the affected worker whole by paying to the worker as wages any amounts disallowed as bona fide fringe benefits in a manner prescribed by the Labor Commissioner;(d) Report the violation to the Attorney General, and the Attorney General may prosecute the contractor or subcontractor in accordance with law; and (e) In addition to notifying the State Contractors' Board pursuant to NRS 338.017, notify the provider of workers' compensation for the contractor or subcontractor, the Employment Security Division of the Department of Employment, Training and Rehabilitation and the public body that awarded the contract for the public work of the violation.5. The amount of the penalty to be imposed pursuant to subsection 4 must be based on the sliding scale adopted by regulation pursuant to NRS 338.060.6. If a penalty is imposed pursuant to this section, the costs of the proceeding, including investigative costs and attorney's fees, may be recovered by the Labor Commissioner.7. The provisions of this section do not apply with regard to:(a) A worker whose benefits are determined pursuant to a collective bargaining agreement; or (b) Contributions made in the name of the worker by a contractor or subcontractor to a defined contribution plan to the extent that the amount contributed does not exceed 25 percent of the hourly prevailing rate of wages for the worker on the public work.8. As used in this section: (a) "Annualized" means an amount paid equally for all hours worked in a calendar year by the worker for the contractor or subcontractor who is providing bona fide fringe benefits. (b) "Defined contribution plan" has the meaning ascribed to it in 29 U.S.C. § 1002(34).Added to NRS by 1983, 1574; A 2003, 2415; 2005, 813; 2019, 702Amended by 2019, Ch. 132,§5, eff. 7/1/2019.Added to NRS by 1983, 1574; A 2003, 2415; 2005, 813