California Attorney General Opinion 26-201
CourtCalifornia Attorney General Reports
Date FiledOctober 13, 2026
Docket26-201
StatusPublished
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Full Opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
_______________
:
OPINION :
: No. 26-201
of :
: October 13, 2026
ROB BONTA :
Attorney General :
:
RYAN B. McCARROLL :
Deputy Attorney General :
The HONORABLE EDWARD J. KIERNAN, SAN JOAQUIN COUNTY
COUNSEL, has requested an opinion relating to public works.
QUESTION PRESENTED AND CONCLUSION
If a private nonprofit organization accepts and uses public funds to purchase
materials for use on a construction project, is the organization obliged to pay prevailing
wages to the workers that it hires onto the same project if the workers are paid using
other, non-public funds?
Yes, as a general rule, when a private nonprofit organization accepts and uses
public funds to purchase materials for use on a construction project, the organization is
obliged to pay prevailing wages to the workers that it hires onto that same project.
BACKGROUND
California Labor Code section 1771 establishes the general rule that “all workers
employed on public works” shall be paid at least the “prevailing rate of per diem wages
for work of a similar character in the locality in which the public work is performed.” 1
1
Statutory citations are to the Labor Code unless otherwise indicated.
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The Legislature has explained that, among other purposes, the prevailing wage law “helps
to maintain construction work as an occupation that provides middle-class jobs to
hundreds of thousands of California workers, enabling the workers to support families
and contribute to their communities.” 2 The law similarly “encourages contractors to hire
the most skilled workers and to invest in their training,” thereby ensuring that the State
will have “an available workforce of skilled construction workers to efficiently complete
both public and private infrastructure projects.” 3
At issue here is whether the prevailing wage law would cover workers employed
on a hypothetical construction project involving a private nonprofit organization. The
requestor asks us to assume that the organization will receive public funds from a county
“to purchase materials that will be used to construct a project.” He offers an example
involving “flooring material that will be installed by workers hired by the nonprofit.” 4
And he indicates that, although public funds would be used to purchase these materials,
the public funds would not be spent to “do the construction work.” 5 The workers who
install the flooring would instead be paid by the nonprofit organization using other, non-
public funds.
The requestor asks whether the given facts would involve “public works” within
the meaning of the prevailing wage law. He specifically asks about the definition of
public works in section 1720(a)(1), which generally refers to “[c]onstruction, alteration,
demolition, installation, or repair work done under contract and paid for in whole or in
part out of public funds.” He posits that an “ordinary reading” of this language would
exclude the given facts “because the County’s money is being used to purchase materials,
not [to] do the construction work.” 6 But he recognizes that, “[o]n the other hand, it could
be argued that the cost of the materials is part of the cost of the construction, so it does
qualify as a ‘public work.’” 7
2
Stats. 2013, ch. 794, § 1, subd. (c); see Busker v. Wabtec Corp. (2021) 11 Cal.5th 1147,
1155-1156; Kaanaana v. Barrett Business Services, Inc. (2021) 11 Cal.5th 158, 165-166;
Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 987.
3
Stats. 2013, ch. 794, § 1, subds. (a), (b).
4
Letter from San Joaquin County Counsel Edward J. Kiernan (Feb. 5, 2026) (Letter from
Requestor) p. 1.
5
Ibid.
6
Id. at pp. 1-2.
7
Id. at p. 2.
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ANALYSIS
The question of how the prevailing wage law applies to the requestor’s
hypothetical set of facts is essentially a question of statutory interpretation. 8 As such, our
“fundamental task is to ascertain the Legislature’s intent and effectuate the law’s
purpose.” 9 The “overall purpose of the prevailing wage law is to protect and benefit
employees on public works projects.’” 10 And courts “liberally construe the law to fulfill
its purpose.” 11
As mentioned, the prevailing wage law generally applies to “workers employed on
public works.” 12 The definition of “public works” in section 1720(a)(1) generally
includes “[c]onstruction, alteration, demolition, installation, or repair work done under
contract and paid for in whole or in part out of public funds.” 13 The California Supreme
Court has parsed this language into three elements that are centered on the word “work.”
Specifically, the court has described section 1720(a)(1) as applying when “[t]he work
(1) entails construction, etc., (2) is done under contract, and (3) is paid for, at least in part,
by public funds.” 14
Here, there appears to be no question that the given facts would involve the first
two elements of section 1720(a)(1), i.e., a qualifying type of work done under contract.
Indeed, the requestor asks us to assume that a private nonprofit organization will receive
public money to purchase flooring or other materials “that will be installed by workers
hired by the nonprofit.” 15 The gravamen of the question presented is whether the
installation of these materials would be “paid for in whole or in part out of public funds”
if the public funds were to be earmarked only for the purchase of the materials and not
for the wages of the workers who perform the installation.
The requestor directs our attention to City of Long Beach v. Department of
Industrial Relations as being “somewhat supportive of the position that public money
8
See Hensel Phelps Construction Co. v. San Diego Unified Port Dist. (2011)
197 Cal.App.4th 1020, 1030.
9
Kaanaana v. Barrett Business Services, Inc., supra, 11 Cal.5th at p. 168.
10
Lusardi Construction Co. v. Aubry, supra, 1 Cal.4th at p. 985.
11
Busker v. Wabtec Corp., supra, 11 Cal.5th at p. 1156.
12
Lab. Code, § 1771.
13
Lab. Code, § 1720, subd. (a)(1); see Lab. Code, § 1771 (prevailing wage law is also
“applicable to contracts let for maintenance work”).
14
Busker v. Wabtec Corp., supra, 11 Cal.5th at pp. 1157, 1169.
15
Letter from Requestor, supra, at p. 1.
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spent for materials does not make the entire project subject to prevailing wages.” 16 At
issue there was whether the prevailing wage law covered the workers who built an animal
control facility for a charity that had received $1.5 million in city funds. 17 The California
Supreme Court determined that the prevailing wage law did not cover the workers,
because the city had earmarked the funds for “preconstruction” work, which was not
included in the definition of construction work under section 1720(a)(1) until a few years
later. 18 The requestor suggests that the same might be true here because, like the
preconstruction work in City of Long Beach, “materials do not equate to construction.” 19
We disagree for the reasons stated below.
The Text and Legislative History of the Prevailing Wage Law Establish That Public
Agencies Cannot Deny Coverage Through Creative Earmarking.
We begin by considering the requestor’s premise that the reference in section
1720(a)(1) to construction, alteration, demolition, installation, or repair work does not
include materials. To be sure, the California Supreme Court has read the terms
construction, alteration, demolition, installation, and repair as each modifying the term
work. 20 And, in this context, work generally denotes an act of manual labor. 21 So, for
example, various parts of the prevailing wage law refer to work as something that is
“performed.” 22 The requestor’s premise would also be consistent with a 1987 opinion
16
Letter from Requestor, supra, at p. 2, discussing City of Long Beach v. Department of
Industrial Relations (2004) 34 Cal.4th 942.
17
City of Long Beach, supra, 34 Cal.4th at pp. 947, 950.
18
Id. at pp. 946-947, 952-954; see Stats. 2000, ch. 881, §1 (“‘construction’ includes work
performed during the design and preconstruction phases of construction including, but
not limited to, inspection and land surveying work”); Stats. 2019, ch. 719, §1
(“‘construction’ includes work performed during the design, site assessment, feasibility
study, and other preconstruction phases of construction, including, but not limited to,
inspection and land surveying work”); see also Stats. 2014, ch. 864, § 1 (construction also
includes “work performed during the postconstruction phases of construction, including,
but not limited to, all cleanup work at the jobsite”).
19
Letter from Requestor, supra, at p. 2.
See Kaanaana v. Barrett Business Services, Inc., supra, 11 Cal.5th at p. 171; Busker v.
20
Wabtec Corp., supra, 11 Cal.5th at pp. 1157, 1169.
21
See Webster’s New World Dict. (3d college ed. 1988) p. 1538 (“work” means
“physical or mental effort exerted to do or make something; purposeful activity; labor;
toil”); see also 109 Ops.Cal.Atty.Gen. 96 (2026) (prevailing wage law covers only
manual labor).
22
See, e.g., Lab. Code, §§ 1720, subds. (a)(1) (referring to “work performed” during the
(continued…)
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from the United States Department of Justice, Office of Legal Counsel, which construed
a similar prevailing wage requirement in 42 U.S.C. § 5310 regarding federally financed
“construction work” as not applying to “the use of federal funds either to purchase
materials, equipment, machinery, or other fixtures.” 23
But on the other hand, it could be argued that the reference to construction work in
section 1720(a)(1) includes not only an act of labor but also the real or personal property
upon which the labor is performed. In City of Long Beach, for example, the court quoted
dictionaries that define construction as “[t]he act of putting parts together to form a
complete integrated object” or “the action of framing, devising, or forming, by the putting
together of parts; erection, building.” 24 And the court similarly explained in Busker that
installation work is covered by the prevailing wage law only if it involves the installation
of “fixtures on real property,” as would be the case with the “‘bolting, securing or
mounting of fixtures to realty.’” 25
The example proffered by the requestor illustrates how materials can be an
essential part of construction or installation work under section 1720(a)(1). As
mentioned, we are asked to assume that a public agency has appropriated funds for the
preconstruction and postconstruction phases of construction), (c)(5)(A) (“work . . .
performed” by home buyers), 1720.4, subd. (a) (“work performed” by volunteers).
23
Off. of Legal Counsel, U.S. Dept. of Justice, Application of the Davis-Bacon Act to
Urban Development Projects That Receive Partial Federal Funding (Aug. 6, 1987) 11 Op.
O.L.C. 92, 99-100, 103. The opinion reasoned in part that, if Congress wanted 42 U.S.C.
§ 5310 to apply when funds are used for “the purchase of land, equipment, and raw
materials,” it would have broadly referred to construction “projects” or development
“activities” rather than to construction “work.” (Id. at p. 100, quoting 42 U.S.C.
§§ 1440(g), 3222.) We note that Congress subsequently included a broad, project-
oriented approach in several bills, such as the American Recovery and Reinvestment Act
(Pub.L. No. 111-5 (Feb. 17, 2009) 123 Stat. 303, § 1606) [referring to “projects funded
directly by or assisted in whole or in part by and through the Federal Government”]), the
Consolidated Appropriations Act of 2021 (20 U.S.C. § 1232b [“all construction and
minor remodeling projects assisted under any applicable program”]), and the Creating
Helpful Incentives to Produce Semiconductors (CHIPS) Act of 2022 (15 U.S.C.
§§ 4652(f) [“a construction project that receives financial assistance”], 4656(h) [same]).
24
City of Long Beach v. Department of Industrial Relations, supra, 34 Cal.4th at p. 951,
quoting Webster’s 3d New Internat. Dict. (2002) p. 489 and 3 Oxford English Dict. (2d
ed. 1989) p. 794; see Priest v. Housing Authority of City of Oxnard (1969) 275
Cal.App.2d 751, 756 (“As one thinks of ‘construction’ one ordinarily considers the entire
process, including construction of basements, foundations, utility connections and the
like, all of which may be required in order to erect an above-ground structure”).
25
Busker v. Wabtec Corp., supra, 11 Cal.5th at p. 1162.
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“purchase of the flooring material that will be installed by workers hired by the
nonprofit.” 26 In this scenario, it would be physically impossible for workers to perform
the installation labor unless and until the organization has purchased, leased, or otherwise
acquired the flooring. 27 And recall that coverage under section 1720(a)(1) requires only
that the work be paid for “in part” out of public funds. 28 This suggests that the
appropriation of public funds to purchase the flooring would qualify as payment for part
of the construction or installation “work” involving the flooring.
In any event, the Legislature clarified the scope of the prevailing wage law in 2001
when it amended section 1720(b) to define the circumstances under which work is “paid
for in whole or in part out of public funds.” 29 As amended, subdivision (b) “encompasses
both direct and indirect subsidies.” 30 And it includes “numerous types of subsidies that,
as a practical matter, cannot be used to pay the actual construction costs, but that can
serve to reduce a developer’s project costs” in ways that are unrelated to the cost of
labor. 31 For example, it applies when a public agency has transferred “an asset of value
for less than fair market price.” 32 It also applies when a public agency has “paid,
reduced, charged at less than fair market value, waived, or forgiven” any “[f]ees, costs,
26
Letter from Requestor, supra, at p. 1.
27
Cf. Lab. Code, § 1720, subd. (a)(4) (defining public works as including the “laying of
carpet done under a building lease-maintenance contract and paid for out of public
funds”).
28
Lab. Code, § 1720, subd. (a)(1).
29
Stats. 2001, ch. 938, § 2; Lab. Code, § 1720, subd. (b) (“For purposes of this section,
‘paid for in whole or in part out of public funds’ means all of the following: (1) The
payment of money or the equivalent of money by the state or political subdivision
directly to or on behalf of the public works contractor, subcontractor, or developer.
(2) Performance of construction work by the state or political subdivision in execution of
the project. (3) Transfer by the state or political subdivision of an asset of value for less
than fair market price. (4) Fees, costs, rents, insurance or bond premiums, loans, interest
rates, or other obligations that would normally be required in the execution of the
contract, that are paid, reduced, charged at less than fair market value, waived, or
forgiven by the state or political subdivision. (5) Money loaned by the state or political
subdivision that is to be repaid on a contingent basis. (6) Credits that are applied by the
state or political subdivision against repayment obligations to the state or political
subdivision”) (line breaks omitted).
30
Cinema West, LLC v. Baker (2017) 13 Cal.App.5th 194, 205.
31
Hensel Phelps Construction Co. v. San Diego Unified Port Dist., supra,
197 Cal.App.4th at p. 1034.
32
Lab. Code, § 1720, subd. (b)(3).
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rents, insurance or bond premiums, loans, interest rates, or other obligations that would
normally be required in the execution of the contract.” 33
The hypothetical scenario presented here involves a straightforward “[p]ayment of
money or the equivalent of money” by the county “directly to or on behalf of the public
works contractor, subcontractor, or developer” under section 1720(b)(1). Although we
are asked to assume that the funds will be earmarked for the purchase of materials, we are
also told that the materials “will be installed by workers hired by the nonprofit.” 34
Indeed, it does not appear that the appropriation of public funds would serve any public
purpose other than to help the nonprofit “construct a project.” 35
It also appears that, by paying for the purchase of materials, the county would be
paying one of the “costs” that “would normally be required in the execution of the
contract” for the installation of the materials under section 1720(b)(4). And it would be
no different if the county were to donate the materials to the nonprofit organization as a
“transfer” of “an asset of value for less than fair market price” under section 1720(b)(3).
As such, we read the 2001 amendments to section 1720(b) as foreclosing any possibility
that the county could deny coverage under the prevailing wage law by earmarking public
funds for the purchase of construction materials.
We find additional support for this conclusion in section 1720(c)(3). As originally
enacted in 2001, subdivision (c) stated that if a public agency “provides directly or
indirectly a public subsidy to a private development project that is de minimis in the
context of the project, an otherwise private development shall not thereby become subject
to the requirements of [the prevailing wage law].” 36 In 2020, the Legislature established
that a public subsidy is de minimis “if it is both less than six hundred thousand dollars
($600,000) and less than 2 percent of the total project cost.” 37 The $600,000 cap does not
apply if the project “consists entirely of single-family dwellings.” 38
The caps on de minimis subsidies would be ineffective, however, if public
agencies could deny coverage under the prevailing wage law simply by earmarking
public funds for the purchase of materials. According to the United States Bureau of
Labor Statistics, the cost of materials regularly exceeds two percent of total construction
33
Lab. Code, § 1720, subd. (b)(4).
34
Letter from Requestor, supra, at p. 1.
35
Ibid.; cf. Cal. Const., art. XVI, § 6 (prohibiting any gift of public money or thing of
value); Alameda County v. Janssen (1940) 16 Cal.2d 276, 281 (appropriation of public
money is not a gift if it serves a public purpose).
36
Lab. Code, § 1720, former subd. (c)(2)(B); Stats. 2001, ch. 938, § 2.
37
Lab. Code. § 1720, subd. (c)(3)(B)(i); Stats. 2020, ch. 346, § 1.
38
Lab. Code, § 1720, subd. (c)(3)(B)(ii).
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costs. 39 So, giving effect to the hypothetical earmark at issue here would allow a public
agency to circumvent the de minimis contribution limits by carving up a construction
project and allocating all of the public funds for materials and none for labor. We see no
reason why the Legislature would have intended that result.
Our Conclusion Is Consistent with Other Authorities That Have Interpreted the
Prevailing Wage Law.
Our interpretation of section 1720 is also consistent with a recent determination by
the Director of the Department of Industrial Relations, who has authority to determine
whether a “specific” project is subject to the prevailing wage law. 40 The issue presented
to the Director was how the prevailing wage law applied to the recipients of grants that
were designed to expand the infrastructure used by medium- and heavy-duty electric
vehicles. 41 There was no dispute that the program reimbursed the purchase price of
certain electric vehicle chargers. 42 But there was some disagreement about whether the
program also reimbursed the cost to install the chargers. 43
The Director determined that, even if the program “specifically excluded
construction or installation costs as being reimbursable, the construction or installation
likely still would be paid for in part out of public funds” within the meaning of section
1720(a)(1). 44 This is because the purpose of the program was “to have EV chargers and
infrastructure installed,” not merely to have them purchased. 45 And public subsidies for
“the cost of the equipment or other component crucial to the deployment of the EV
charger or infrastructure ‘serve to reduce a developer’s project cost.’” 46
The Director also determined that excluding the grant program from the definition
of public works under section 1720(a)(1) would be inconsistent with authorities that have
39
See U.S. Bureau of Labor Statistics, Producer Price Index Data for the Nonresidential
Building Construction Sector, https://www.bls.gov/ppi/factsheets/producer-price-index-
nonresidential-building-construction-initiative.htm (as of Oct. 12, 2026).
40
See Lab. Code, § 1773.5, subd. (b); Cal. Code Regs., tit. 8, § 16001, subd. (a).
41
Dept. of Industrial Relations, Director Katrina Hagen, Letter to EnergIIZE Deputy
Director Tesi Bravo (Oct. 2, 2024) (EnergIIZE Determination) p. 3.
42
Id. at pp. 3-4.
43
Ibid.
44
Id. at p. 4.
45
Ibid., original italics.
46
Ibid., quoting Hensel Phelps Construction Co. v. San Diego Unified Port Dist., supra,
197 Cal.App.4th at p. 1034.
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“specifically rejected” a “contract-based analysis” of the prevailing wage law. 47 In
particular, the proffered reasons for exempting the grant program would allow a public
agency to “simply assign all public funding to pay for all non-labor costs on a public
works project [in an] attempt to avoid prevailing wage requirements.” 48
Regarding the question presented here, the Chief Counsel of the Department of
Industrial Relations informs us that “it is [his] office’s opinion that prevailing wage
requirements apply to the construction or installation work described in the County
Counsel’s hypothetical.” 49 He also reiterates that a contrary conclusion “would
‘incentivize gamesmanship’ because public entities and contractors ‘often have strong
incentives to avoid the prevailing wage law and thus may structure their contracts to
circumvent it.’” 50 “To allow the prevailing wage law to be circumvented in situations
where payment of public funds was meant to subsidize construction would contravene the
law’s overarching purposes to ‘protect and benefit employees on public works projects’
and ‘to benefit the public through the superior efficiency of well-paid employees.’” 51
Courts have similarly rejected attempts to limit coverage under the prevailing
wage law through other forms of creative earmarking. In Azusa Land Partners, for
example, the court held that a public agency may not “carve up the individual
components of an overall project into publicly and privately financed pieces” to avoid
paying prevailing wages to the workers on the latter pieces. 52 So, if a project requires
public improvement work, an agency may not “allocate all public funds to one piece of
improvement work instead of applying [the funds], in part, to pay for all required
improvements.” 53 Nor may developers “allocate lump sum public contributions to
specific structures in order to minimize their prevailing wage obligations.” 54 Similarly,
the court in Oxbow rejected an attempt to “contract around the prevailing wage law by
47
Ibid., quoting Azusa Land Partners v. Department of Industrial Relations (2010) 191
Cal.App.4th 1, 35; see Lusardi Construction Co. v. Aubry, supra, 1 Cal.4th at p. 987.
48
EnergIIZE Determination, supra, at p. 4.
49
Letter from Dept. of Industrial Relations Chief Counsel Ken Lau (June 1, 2026) p. 3.
50
Ibid., citations omitted; see Lusardi Construction Co. v. Aubry, supra, 1 Cal.4th at
pp. 987-988; Cinema West, LLC v. Baker, supra, 13 Cal.App.5th at p. 211.
51
Letter from Dept. of Industrial Relations Chief Counsel Ken Lau, supra, at p. 3,
quoting Lusardi Construction Co. v. Aubry, supra, 1 Cal.4th at p. 987.
52
Azusa Land Partners v. Department of Industrial Relations, supra, 191 Cal.App.4th at
p. 36.
53
Id. at p. 35.
54
Id. at p. 32.
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breaking up individual tasks into separate construction contracts.” 55 And the court in
Cinema West likewise rejected an “attempt to segment [a] development into separate
components so as to avoid application of the [prevailing wage law].” 56 There is no cause
to believe that the result would be any different with respect to the hypothetical earmark
at issue here.
CONCLUSION
For the foregoing reasons, the facts presented to us would involve public works
within the meaning of the prevailing wage law. And there is no suggestion that these
facts might qualify for an exception to the law’s coverage, such as the exception
discussed above for private development projects that receive only de minimis subsidies.
We therefore conclude that the prevailing wage law would cover the workers hired by the
nonprofit organization. 57
55
Oxbow Carbon & Minerals, LLC v. Department of Industrial Relations (2011) 194
Cal.App.4th 538, 550; see id. at pp. 551-552 (public funds earmarked for construction of
conveyor system to bring petroleum coke into a facility indirectly paid for construction of
a roof over the same facility).
56
Cinema West, LLC v. Baker, supra, 13 Cal.App.5th at p. 213; see id. at p. 217 (public
funds earmarked for construction of a parking lot to be used by theatergoers indirectly
paid for construction of the adjacent theater).
57
See Azusa Land Partners v. Department of Industrial Relations, supra, 191
Cal.App.4th at p. 29 (“Once the determination is made that the Project is a ‘public work’
under section 1720, subdivision (a)(1), the entire Project is subject to the [prevailing
wage law]”).
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