Be Wary of Payroll Request from Clawback

(Editors note: AGC emphasizes that whomever asks for certified payroll information the contractor is not required to send it to the requester but rather to the public agency with which they are contracting. If any AGC member receives a letter from Clawback please send a copy to AGC Government Affairs Director Rick Slunaker or call him at 360-352-5000.)

Memo from the Department of Labor and Industries:

Since early April of this year the Prevailing Wage program has received a copy of a number of requests sent to various employers (approximately 35) for certified payroll records which are on letterhead bearing the name “Clawback” and signed by “Kay Lee.”

We have been attempting to obtain information to help us in determining whether this entity qualifies as an “interested party” as contemplated by WAC 296-127-320 which requires an employer’s compliance with payroll record requests it receives from such parties. We sent a certified mail letter to the address on Clawback’s letterhead requesting confirmation of its status as an interested party. The letter informed Clawback that currently we are advising contractors that they may await confirmation that it is an interested party before we will require compliance with the group’s requests. The certified mail letter was forwarded and accepted at another address but we have not received a reply. An initial e-mail we sent to Kay Lee received a brief response but no confirmation of Clawback’s status as an interested party.

As stated under WAC 296-127-320 contractors are required to keep certain payroll records for three years from the date of acceptance of a public works contract. In addition “[a] contractor shall within ten days after it receives a written request from the department or from any interested party as defined by RCW 39.12.010(4) file a certified copy of the payroll records with the agency that awarded the public works contract and with the department.” The term “interested party” is defined under RCW 39.12.010(4) as “a contractor subcontractor an employee of a contractor or subcontractor an organization whose members’ wages benefits and conditions of employment are affected by this chapter and the director of labor and industries or the director’s designee.”

At this time because we have no way to confirm that Clawback is an “interested party” we anticipate taking no action against contractors who do not provide the requested records. We also suggest that any contractor who receives a request from Clawback for payroll records consult with their legal counsel in deciding how to respond to the request. It would be unfortunate if employers felt compelled to provide payroll information to someone who was not entitled to receive it and with no understanding of the use the requesting party might make of the information.

If the situation changes and we learn that Clawback qualifies as an “interested party” under RCW 39.12.010(4) we will send another message through this email service.

If you have questions please contact Marcus Ehrlander of L&I at (360) 902-5334.