Bradshaw

Under the prevailing wage law (Lab. Code, §§ 1720-1780), a public entity which has contracted for a public works project must withhold statutory penalties as well as underpaid wages upon learning that a contractor or subcontractor on the project has violated the law by paying less than the prevailing wage to its employees. (§ 1727.) The amount of the penalties, up to a statutory ceiling, is to be “determined” by the Commissioner of Labor (Commissioner) in light of specified factors. (§ 1775.) The Commissioner’s undisputed practice is to make this determination, through the Division of Labor Standards Enforcement (Division), after instructing the contracting agency to withhold funds including an allowance for penalties in the maximum statutory amount. On petition of J & K Painting Co. (PaintCo), the court below held this practice invalid and issued a writ of mandate setting aside, as premature, a “notice to withhold” previously issued by the Division. We have concluded that this was error. The notice to withhold may have been superfluous, but its issuance was not unlawful. More specifically, nothing in the statutes requires the Commissioner to exercise her penalty-fixing…