A09375 Summary:

BILL NOA09375
 
SAME ASSAME AS S07434
 
SPONSORCamara (MS)
 
COSPNSRWright, Lopez V, Abbate, Gottfried, Dinowitz, Ortiz, Kavanagh, Hevesi, Rosenthal, Perry, Colton, Lancman, Jeffries, Weisenberg, Rivera P, Titone, Bronson, Roberts, Schimel, Markey, Hooper, Weprin, Miller M, Stevenson, Moya, Castro, Linares, Maisel, Abinanti, Gibson, Ramos, Russell, Aubry, Magnarelli, Kellner
 
MLTSPNSRArroyo, Barron, Benedetto, Braunstein, Brook-Krasny, Clark, Cook, Crespo, Cymbrowitz, DenDekker, Espinal, Glick, Goldfeder, Heastie, Jacobs, Lavine, McEneny, Meng, O'Donnell, Pretlow, Quart, Rivera J, Rivera N, Robinson, Rodriguez, Saladino, Scarborough, Simanowitz, Simotas, Titus
 
Amd Art 9 Art Head, SS230, 231, 235, 237 & 238, Lab L
 
Relates to prevailing wages for service workers; amends certain definitions, payroll filing requirements and penalties for violations thereof.
Go to top    

A09375 Actions:

BILL NOA09375
 
02/24/2012referred to labor
06/06/2012reported referred to codes
Go to top

A09375 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A9375
 
SPONSOR: Camara (MS)
  TITLE OF BILL: An act to amend the labor law, in relation to prevail- ing wages for service workers   PURPOSE OR GENERAL IDEA OF BILL: This bill strengthens and clarifies Article 9 of the Labor Law to ensure that workers employed to provide service work for the benefit of public agencies are paid the prevailing wages to which the law entitles them.   SUMMARY OF SPECIFIC PROVISIONS: The bill renames Article P of the Labor Law "Prevailing Wage for Service Employees" and makes changes in two basic areas: A. Definitions in 5230 are clarified to ensure that they clearly apply to all appropriate categories of service work for public agencies: (1) The terms "building service employee" and "building service work" are changed to "service employee" and "service work" throughout the article, in order to more accurately reflect the types of service work commonly required by public agencies. The definition of "service employ- ee" is clarified to reflect the fact that service work often is not restricted to building interiors, but can also include care, mainte- nance, and patrolling of outdoor areas, such as parking lots, grounds and other outdoor work sites. The provisions of this article. are neutral in respect to any employee directly or indirectly Performing work for or, on behalf of a business improvement district. (2) The definition of "service work" is amended to delete the exemption for public utility services. (3) The definition of "public agency" is amended to include public util- ity services provided by a public authority or by a public utility sell- ing gas, electric or steam services at retail rates under a franchise granted by the Public Service commission (including any substantially owned entity affiliated with the public utility). (4) The definition of "person" (from Article 8) is added to ensure the law is enforceable against partnerships, joint ventures and other forms of organization. B. Safeguards against abuse are added and time-tested enforcement tools are borrowed from Labor Law Article 9 (prevailing wages for public work) to ensure compliance: (1) A new 5235(2) (g) is added to apply enforcement tools that have long been a part of Article E. Specifically, this paragraph empowers the fiscal officer to request and receive person or entity who is responsi- ble for paying the service employees, and authorizes Partial (up to 28.T;) withholding of payments to any such person or entity that fails to produce the records. (2) 5237 is amended to import other enforcement tools from Article 8 that make willful failure to file Payroll records with the public agency a class E felony, and that require public agencies to designate an indi- vidual responsible for the receipt, collection and review for facial validity of contractors' certified payroll statements before payment is made. (3) Amendments to S238(2) increase the criminal penalties for failure to pay service work prevailing wages to a misdemeanor and the greater of two thousand five hundred dollars or double the amount of underpayments for a first violation and a class E felony and the greater of five thou- sand dollars or three times the amount of underpayment, or imprisoned for a second or subsequent relation.   EFFECTS OF PRESENT LAN WHICH THIS BILL WOULD ALTER: Currently, the prevailing wane law for service employees lacks many of the procedural safeguards and enforcement tools that have long been incorporated into Article 9 of the labor law, Combined with some ambiguous and outdated definitions, this has left the door open for efforts to avoid paying prevailing wages for service work performed for public agencies. This bill would bolster the ability of enforcement agencies to ensure that service employees receive the prevailing wages to which they are enti- tled. Business improvement districts are exempted from this legislation, unless such work performed directly or indirectly for such entities would have been subject to the requirements of Article 9 as in effect on January first, two thousand eleven.   JUSTIFICATION: For almost forty years, Article 9 of the Labor Law has promoted the public policy that workers who perform service work on behalf of public agencies should be raid the prevailing wage for such experience has been gained over what provisions of the law require strengthening to prevent abuses. This bill clarifies the definitions and applicability of Article 9 and adds provisions that are analogous to several enforcement tools that have long been a part of Article 8, in order to ensure that prevailing wages are paid for all appropriate service work.   PRIOR LEGISLATIVE HISTORY: 2010: A. 10257-D/S. 9379-A passed both houses of the Legislature and vetoed by the Governor.   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: Any fiscal implications are completely dependent upon specific agency/worksite circumstances, including when current contracts or agreements expire or are up for renewal and what terms are negotiated in the future.   EFFECTIVE DATE: Ninetieth day after enactment, to apply to all contracts or other agreements entered into, renewed or extended on or after such date; provided that the amendments to subdivision 4 of section 230 of the labor law made by section two of this act shall be subject to the expiration and reversion of such subdivision pursuant to section 5 of chapter 678 of the laws of 2007, as amended, when such date the provisions of section three of this shall take effect; and the amendments to subdivision 5 of section 231 of the labor law made by section four of this act shall be subject to the expiration and rever- sion of such subdivision Pursuant to section 5 of chanter 673 of the laws of 2007, as amended, when upon such date the provisions of section five of this act shall take effect.
Go to top

A09375 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          9375
 
                   IN ASSEMBLY
 
                                    February 24, 2012
                                       ___________
 
        Introduced  by  M.  of  A.  CAMARA, WRIGHT, V. LOPEZ, ABBATE, GOTTFRIED,
          DINOWITZ, ORTIZ, KAVANAGH, HEVESI, ROSENTHAL, PERRY, COLTON,  LANCMAN,
          JEFFRIES,  WEISENBERG,  P. RIVERA,  TITONE, BRONSON, ROBERTS, SCHIMEL,
          MARKEY, HOOPER, WEPRIN, M. MILLER, STEVENSON, MOYA,  CASTRO,  LINARES,
          MAISEL,  ABINANTI, GIBSON, RAMOS, RUSSELL, AUBRY, MAGNARELLI -- Multi-

          Sponsored by --  M.  of  A.  ARROYO,  BARRON,  BENEDETTO,  BRAUNSTEIN,
          BROOK-KRASNY, CLARK, COOK, CRESPO, DenDEKKER, ESPINAL, GLICK, GOLDFED-
          ER, HEASTIE, JACOBS, LAVINE, McENENY, MENG, O'DONNELL, PRETLOW, QUART,
          J. RIVERA,  N. RIVERA,  ROBINSON,  RODRIGUEZ,  SALADINO,  SCARBOROUGH,
          SIMANOWITZ, SIMOTAS, TITUS -- read once and referred to the  Committee
          on Labor
 
        AN  ACT  to  amend  the  labor  law, in relation to prevailing wages for
          service workers
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. The article heading of article 9 of the labor law, as added
     2  by chapter 777 of the laws of 1971, is amended to read as follows:
     3              PREVAILING WAGE FOR [BUILDING] SERVICE EMPLOYEES

     4    §  2.  Subdivisions  1,  2, 3, 4, 6, 8, 9 and 10 of section 230 of the
     5  labor law, as added by chapter 777 of the laws of 1971, subdivision 1 as
     6  amended and subdivision 9 as added by chapter 542 of the laws  of  1984,
     7  subdivision 4 as amended by chapter 678 of the laws of 2007 and subdivi-
     8  sion  10  as added by chapter 547 of the laws of 1998, are amended and a
     9  new subdivision 15 is added to read as follows:
    10    1. "[Building service]  Service  employee"  or  "employee"  means  any
    11  person performing janitorial, or security service work for a contractor,
    12  under  contract  with a public agency which is in excess of two thousand
    13  dollars and the principal  purpose  of  which  is  to  furnish  services
    14  through  the  use  of  service employees, or any other person performing

    15  work in connection with the care or maintenance of an existing building,
    16  or in connection with the transportation of office furniture  or  equip-
    17  ment  to or from such building, or in connection with the transportation
    18  and delivery of fossil fuel to such building, for a contractor  under  a
    19  contract  with  a public agency which is in excess of [one] two thousand
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10637-02-1

        A. 9375                             2
 
     1  [five hundred] dollars and the principal purpose of which is to  furnish
     2  services   through  the  use  of  [building]  service  employees.    The

     3  provisions of this article shall not apply to any employee  directly  or
     4  indirectly  performing  work  for or on behalf of a business improvement
     5  district unless such work would have been subject to the requirements of
     6  this article as in effect on January first, two thousand  eleven.    The
     7  preceding  sentence  shall  not be construed to affect any determination
     8  hereafter by the fiscal officer or a court of competent jurisdiction  as
     9  to  the  applicability  or inapplicability to such work of such require-
    10  ments.
    11    "[Building service] Service employee" or "employee" includes,  but  is
    12  not  limited,  to,  watchman,  guard, doorman, building cleaner, porter,
    13  handyman, janitor, gardener, groundskeeper, stationary fireman, elevator

    14  operator and starter, window cleaner, and occupations  relating  to  the
    15  collection  of  garbage  or  refuse, and to the transportation of office
    16  furniture and equipment, and  to  the  transportation  and  delivery  of
    17  fossil  fuel but does not include clerical, sales, professional, techni-
    18  cian and related occupations.
    19    "[Building service] Service employee"  or  "employee"  also  does  not
    20  include  any  employee  to  whom  the  provisions  of articles eight and
    21  [eight-a] eight-A of this chapter are applicable.
    22    2. "[Building service] Service work" [or "service  work"]  means  work
    23  performed  by  a  [building] service employee, but does not include work
    24  performed for a contractor  under  a  contract  for  the  furnishing  of

    25  services  by  radio,  telephone,  telegraph or cable companies[; and any
    26  contract for public  utility  services,  including  electric  light  and
    27  power, water, steam and gas] or janitorial or security work performed on
    28  the  premises  owned  or operated by the power authority of the state of
    29  New York unless such premises are jointly owned  or  operated  with  any
    30  non-governmental  utility or substantially-owned or affiliated entity of
    31  such public utility as defined in subdivision three of this section.
    32    3. "Public agency" means the state, any of its political subdivisions,
    33  a public benefit corporation, a public  authority,  including  a  public
    34  authority  providing  public  utility services, or commission or special

    35  purpose district board appointed pursuant  to  law,  [and]  a  board  of
    36  education,  and  any  public  utility that distributes electric light or
    37  power, or gas or steam services at retail rates regulated by the  public
    38  service  commission pursuant to a franchise granted under the provisions
    39  of section sixty-eight or eighty-one of the public service law, and  any
    40  substantially-owned affiliated entity of such public utility.
    41    4.  "Contractor"  means  any employer who employs employees to perform
    42  [building] service work under a contract with a public agency and  shall
    43  include any of the contractor's subcontractors.
    44    6.  "Prevailing  wage" means the wage determined by the fiscal officer
    45  to be prevailing for the various classes of [building] service employees

    46  in the locality. In no event shall the basic hourly cash rate of pay  be
    47  less  than the statutory minimum wage established by article nineteen of
    48  this chapter, or, in a city with a local law requiring a higher  minimum
    49  wage on city contract work, less than the minimum wage specified in such
    50  local law.
    51    8.  "Fiscal  officer"  means the [industrial] commissioner, except for
    52  [building] service work performed by or on behalf of a  city,  in  which
    53  case  "fiscal  officer" means the comptroller or other analogous officer
    54  of such city.
    55    9. "Fossil fuel" shall mean coal, petroleum products and  fuel  gases.
    56  "Coal" shall include bituminous coal, anthracite coal and lignite. "Fuel

        A. 9375                             3
 
     1  gases"  shall include but not be limited to methane, natural gas, lique-

     2  fied natural gas and manufactured fuel gases. "Petroleum products" shall
     3  include all products refined or rerefined from synthetic or crude oil or
     4  oil  extracted  from  other  sources,  including  natural  gas  liquids.
     5  [Provided that nothing in this subdivision shall  affect  the  exclusion
     6  for  public  utility  services  set  forth  in  subdivision  two of this
     7  section.]
     8    10. "Substantially-owned affiliated  entity"  shall  mean  the  parent
     9  company  of the public utility, contractor or subcontractor, any subsid-
    10  iary of the public utility, contractor or subcontractor, or  any  entity
    11  in  which  the parent of the public utility, contractor or subcontractor
    12  owns more than fifty percent of the voting stock, or an entity in  which

    13  one or more of the top five shareholders of the public utility, contrac-
    14  tor  or  subcontractor individually or collectively also owns a control-
    15  ling share of the voting stock, or an entity which  exhibits  any  other
    16  indicia  of control over the public utility, contractor or subcontractor
    17  or over which the public utility, contractor or  subcontractor  exhibits
    18  control,  regardless  of whether or not the controlling party or parties
    19  have any identifiable or documented  ownership  interest.  Such  indicia
    20  shall include: power or responsibility over employment decisions, access
    21  to  and/or  use  of  the relevant entity's assets or equipment, power or
    22  responsibility over contracts of the entity, responsibility for  mainte-
    23  nance or submission of certified payroll records, and influence over the
    24  business decisions of the relevant entity.

    25    15. "Person" shall mean a human being and shall include an "entity" as
    26  defined  in  this article, including, but not limited to a contractor or
    27  subcontractor.
    28    § 3. Subdivision 4 of section 230 of the labor law, as added by  chap-
    29  ter 777 of the laws of 1971, is amended to read as follows:
    30    4.  "Contractor"  means  any employer who employs employees to perform
    31  [building] service work under a contract with a public agency, and shall
    32  include any of his subcontractors.
    33    § 4. Subdivisions 1, 3, 4 and 5 of section 231 of the  labor  law,  as
    34  added by chapter 777 of the laws of 1971 and subdivision 5 as amended by
    35  chapter 678 of the laws of 2007, are amended to read as follows:
    36    1.  Every contractor shall pay a service employee under a contract for

    37  [building] service work a wage of not less than the prevailing  wage  in
    38  the locality for the craft, trade or occupation of the service employee.
    39    3.  Each contract for [building] service work shall contain as part of
    40  the specifications thereof a schedule of the wages required to  be  paid
    41  to  the various classes of service employees on such work, and each such
    42  contract shall further contain a provision obligating the contractor  to
    43  pay  each employee on such work not less than the wage specified for his
    44  craft, trade or occupation in such schedule.
    45    4. The public agency, or appropriate officer or agent  thereof,  whose
    46  responsibility  it  is to prepare or direct the preparation of the plans
    47  and specifications for a contract for  [building]  service  work,  shall
    48  ascertain  from  such  plans  and  specifications the classifications of

    49  employees to be employed on such work and shall  file  a  list  of  such
    50  classifications  with  the  fiscal officer, together with a statement of
    51  the work to be performed. The fiscal officer shall determine the crafts,
    52  trades and occupations required for such work and shall make a  determi-
    53  nation  of  the  wages required to be paid in the locality for each such
    54  craft, trade or occupation. A schedule of such wages shall be annexed to
    55  and form a part of the specifications for the contract prior to the time

        A. 9375                             4
 
     1  of the advertisement for bids on such contract and shall constitute  the
     2  schedule of wages referred to in subdivision three of this section.
     3    5.  Upon  the  award  of  a  contract for [building] service work by a
     4  public agency other than a city, the  contracting  public  agency  shall

     5  immediately furnish to the commissioner: (a) the name and address of the
     6  contractor  to  whom  the  contract  was  awarded; (b) the date when the
     7  contract was awarded; and (c) the approximate  consideration  stipulated
     8  for in the contract.
     9    §  5. Subdivision 5 of section 231 of the labor law, as added by chap-
    10  ter 777 of the laws of 1971, is amended to read as follows:
    11    5. Upon the award of a contract  for  [building]  service  work  by  a
    12  public  agency  other  than  a city, the contracting public agency shall
    13  immediately furnish to the [industrial] commissioner: (a) the  name  and
    14  address of the contractor to whom the contract was awarded; (b) the date
    15  when  the  contract  was  awarded; and (c) the approximate consideration
    16  stipulated for in the contract.
    17    § 6. Paragraphs a and c of subdivision 2 and subdivision 7 of  section

    18  235  of the labor law, paragraph a of subdivision 2 and subdivision 7 as
    19  amended and paragraph c of subdivision 2 as added by chapter 547 of  the
    20  laws  of  1998, are amended and subdivision 2 is amended by adding a new
    21  paragraph g to read as follows:
    22    a. At the start of such investigation the fiscal  officer  may  notify
    23  the  financial officer of the public agency interested who shall, at the
    24  direction of the fiscal officer, forthwith withhold from any payment due
    25  to the contractor executing the contract sufficient money  to  safeguard
    26  the  rights of the service employees and to cover the civil penalty that
    27  may be assessed as provided herein, or, if there are insufficient moneys
    28  still due or earned to the contractor or subcontractor to safeguard  the
    29  rights  of the service employees and to cover the civil penalty that may

    30  be assessed as provided herein, the financial officer of  another  civil
    31  division  which  has  entered  or  subsequently enters into a [building]
    32  service work contract with the contractor or  subcontractor,  who  shall
    33  withhold  from any payment due the contractor or subcontractor executing
    34  any [building] service work, sufficient moneys to safeguard  the  rights
    35  of  the  service  employees  and  to cover the civil penalty that may be
    36  assessed as provided herein.
    37    c. The notice of withholding shall provide  that  the  fiscal  officer
    38  intends  to  instruct  the  financial  officer,  not  less than ten days
    39  following service of the notice by mail, to withhold  sufficient  moneys
    40  to  safeguard the rights of the service employees and to cover the civil
    41  penalty that may be assessed as provided herein, from  any  payment  due

    42  the  notified  party  under any [building] service work contract pending
    43  final determination. The notice of withholding shall provide that within
    44  thirty days following the date of the notice of withholding the notified
    45  party may, contest the withholding on the basis that the notified  party
    46  is  not a partner or one of the five largest shareholders of the subcon-
    47  tractor or contractor, an officer of the contractor or subcontractor who
    48  knowingly participated in the violation of this article, a  substantial-
    49  ly-owned  affiliated entity or successor. If the notified party fails to
    50  contest the notice of withholding,  or  if  the  fiscal  officer,  after
    51  reviewing  the  information  provided  by  the  notified  party  in such
    52  contest, determines that the notified party is a partner or one  of  the
    53  five  largest  shareholders, a substantially-owned affiliated entity, an

    54  officer of the contractor or subcontractor who knowingly participated in
    55  the violation of this article, or a successor, the  fiscal  officer  may
    56  instruct the financial officer to immediately withhold sufficient moneys

        A. 9375                             5
 
     1  to  safeguard the rights of the service employees and to cover the civil
     2  penalty that may be assessed as provided herein from any payment due the
     3  notified party under any [building] service work  contract  pending  the
     4  final determination.
     5    g. The fiscal officer may require any person or corporation performing
     6  such  public  work  to  file  with the fiscal officer within ten days of
     7  receipt of said request, payroll records, sworn to as to their  validity
     8  and  accuracy, requested by the fiscal officer, for said service work or

     9  for any public or private work performed by said person  or  corporation
    10  during  the  same period of time as said service work. In the event said
    11  person or corporation fails to provide the requested information  within
    12  the  allotted  ten  days,  the  fiscal officer may, within fifteen days,
    13  order the financial officer of the public agency to immediately withhold
    14  from payment to said person or corporation up to twenty-five percent  of
    15  the  amount,  not to exceed five hundred thousand dollars, to be paid to
    16  said person or corporation under the terms of the contract  pursuant  to
    17  which  said  service work is being performed. Said amount withheld shall
    18  be immediately released upon receipt by the public agency  of  a  notice

    19  from the fiscal officer indicating that the request for records had been
    20  satisfied.
    21    7.  When, pursuant to the provisions of this section, two final orders
    22  have been entered against a contractor, subcontractor, successor, or any
    23  substantially-owned affiliated entity of the contractor  or  subcontrac-
    24  tor,  any  of the partners if the contractor or subcontractor is a part-
    25  nership, any of the five  largest  shareholders  of  the  contractor  or
    26  subcontractor,  any officer of the contractor or subcontractor who know-
    27  ingly participated in the violation of this article within  any  consec-
    28  utive  six-year period determining that such contractor or subcontractor
    29  and/or its  successor,  substantially-owned  affiliated  entity  of  the
    30  contractor  or  subcontractor,  any  of  the partners or any of the five

    31  largest shareholders of the contractor or subcontractor, any officer  of
    32  the  contractor  or  subcontractor  who  knowingly  participated  in the
    33  violation of this article has willfully failed  to  pay  the  prevailing
    34  wages  in  accordance  with the provisions of this article, whether such
    35  failures were concurrent or consecutive and whether or  not  such  final
    36  determinations   concerning  separate  public  [building]  service  work
    37  contracts are rendered simultaneously, such  contractor,  subcontractor,
    38  successor,  and  if  the  contractor,  subcontractor,  successor, or any
    39  substantially-owned affiliated entity of the contractor  or  subcontrac-
    40  tor,  any  of the partners if the contractor or subcontractor is a part-
    41  nership, or any of the five largest shareholders of  the  contractor  or
    42  subcontractor,  any officer of the contractor or subcontractor who know-

    43  ingly participated in the violation of this article, or any successor is
    44  a corporation, any officer of such  corporation  who  knowingly  partic-
    45  ipated  in  such  failure,  shall be ineligible to submit a bid on or be
    46  awarded any public [building] service work for a period  of  five  years
    47  from  the  date  of  the second order, provided, however, that where any
    48  such final order involves the falsification of payroll  records  or  the
    49  kickback  of  wages,  the contractor, subcontractor, successor, substan-
    50  tially-owned affiliated entity of the contractor or  subcontractor,  any
    51  partner  if  the  contractor or subcontractor is a partnership or any of
    52  the five largest shareholders of the contractor  or  subcontractor,  any
    53  officer of the contractor or subcontractor who knowingly participated in
    54  the  violation of this article shall be ineligible to submit a bid on or

    55  be awarded any public [building] service work  contract  or  subcontract
    56  with the state, any municipal corporation or public body for a period of

        A. 9375                             6
 
     1  five  years  from  the  date  of  the first final order. Nothing in this
     2  subdivision shall be construed as affecting any provision of  any  other
     3  law or regulation relating to the awarding of public contracts.
     4    §  7.  Subdivision  2  of  section 237 of the labor law, as amended by
     5  chapter 698 of the laws of 1988, is amended to read as follows:
     6    2. a. Before payment is made by or on behalf of a public agency of any
     7  sums due on account of a contract for service work, it shall be the duty
     8  of the comptroller of the state or the financial officer of such  public

     9  agency or other officer or person charged with the custody and disburse-
    10  ment  of  the  state or corporate funds applicable to the contract under
    11  and pursuant to which payment is made, to require the contractor to file
    12  a statement in writing in form satisfactory to such  officer  certifying
    13  to  the  amounts  then  due  and  owing from such contractor filing such
    14  statement to or on behalf of any and all service employees for daily  or
    15  weekly  wages  on  account  of  labor  performed upon the work under the
    16  contract, setting forth therein the names of the persons whose wages are
    17  unpaid and the amount due to or on behalf of  each  respectively,  which
    18  statement so to be filed shall be verified by the oath of the contractor
    19  that  he  or  she  has  read such statement subscribed by him or her and
    20  knows the contents thereof, and that the same is true of his or her  own

    21  knowledge.    The  contractor  shall file these payroll records verified
    22  under oath within ninety days after any labor is performed upon the work
    23  under contract, or such other time as the fiscal officer may  authorize.
    24  Any  person  who  willfully  fails to file such payroll records with the
    25  public agency shall be guilty of a class E felony.
    26    b. Each  public  agency  shall  designate  in  writing  an  individual
    27  employed  by such department responsible for the receipt, collection and
    28  review for facial validity of a contractor's  certified  payroll  state-
    29  ment,  as  set  forth  in this subdivision, before payment is made. Said
    30  designation shall be filed with the  fiscal  officer  and  posted  in  a

    31  conspicuous  location  at  the  work  site. If the designated individual
    32  cannot perform the receipt, collection and review of certified  payrolls
    33  duties  as indicated above, for any reason, including but not limited to
    34  reassignment, promotion or separation from employment, the public agency
    35  must immediately designate another individual employed by such agency to
    36  fulfill such responsibilities. In the event that a public  agency  fails
    37  to name an individual responsible for the receipt, collection and review
    38  for  facial  validity of contractors' certified payrolls, then the indi-
    39  vidual so responsible shall be the individual who is  the  chief  policy
    40  making officer of such public agency.

    41    §  8. Subdivision 2 of section 238 of the labor law, as added by chap-
    42  ter 777 of the laws of 1971, is amended to read as follows:
    43    2. When a contract for service work contains as part thereof a  sched-
    44  ule  of  wages  as provided for in this article, any [contractor] person
    45  who, after entering into such contract[, and any subcontractor  of  such
    46  contractor who] willfully fails to pay to any service employee the wages
    47  stipulated  in  such  wage schedule [is guilty of a misdemeanor and upon
    48  conviction shall be punished for a first  offense  by  a  fine  of  five
    49  hundred  dollars  or by imprisonment for not more than thirty days or by
    50  both fine and imprisonment; for a second offense by a fine of one  thou-

    51  sand  dollars,  and  in]  shall be guilty of a misdemeanor for the first
    52  offense and upon conviction therefor shall be fined  two  thousand  five
    53  hundred dollars or twice the amount of underpayment, whichever is great-
    54  er or imprisoned for not more than one year, or both. If a person stands
    55  convicted  of  a  violation  of this section and within the previous six
    56  years has been convicted one or  more  times  of  a  violation  of  this

        A. 9375                             7
 
     1  section  in separate transactions, then such person shall be guilty of a
     2  class E felony upon conviction for such subsequent offense, and shall be
     3  fined five thousand dollars or triple the amount of underpayment, which-

     4  ever  is  greater  or  imprisoned  as authorized by section 70.00 of the
     5  penal law or punished by both such fine and imprisonment, for each  such
     6  offense.  In addition [thereto] to any other fine or penalty that may be
     7  imposed for such felony offense, the contract on which the violation has
     8  occurred shall be forfeited; and no such contractor shall be entitled to
     9  receive any sum, nor  shall  any  officer,  agent  or  employee  of  the
    10  contracting public agency pay any such sum or authorize its payment from
    11  the funds under his or her charge or control to such contractor for work
    12  done  upon  the contract on which the contractor has been convicted of a
    13  second offense. If the contractor or subcontractor is a corporation, any
    14  officer of such corporation who knowingly  permits  the  corporation  to

    15  fail  to  make  such payment shall also be guilty of [a misdemeanor] the
    16  offense defined in this subdivision and the criminal and civil penalties
    17  [herein]  of  this  subdivision  shall  attach  to  such  officer   upon
    18  conviction.
    19    § 9. Severability. If any clause, sentence, paragraph, section or part
    20  of  this  act  be  adjudged by any court of competent jurisdiction to be
    21  invalid and after exhaustion of all further judicial review,  the  judg-
    22  ment  shall  not affect, impair or invalidate the remainder thereof, but
    23  shall be confined in its operation to the clause,  sentence,  paragraph,
    24  section  or  part  of  this  act directly involved in the controversy in
    25  which the judgment shall have been rendered.
    26    § 10. This act shall take effect on the ninetieth day after  it  shall

    27  have  become  a law and shall apply to all contracts or other agreements
    28  entered into, renewed or extended  on  or  after  such  date;  provided,
    29  however, that:
    30    (a)  the  amendments  to subdivision 4 of section 230 of the labor law
    31  made by section two of this act shall be subject to the  expiration  and
    32  reversion  of  such  subdivision pursuant to section 5 of chapter 678 of
    33  the laws of 2007, as amended, when upon  such  date  the  provisions  of
    34  section three of this act shall take effect; and
    35    (b)  the  amendments  to subdivision 5 of section 231 of the labor law
    36  made by section four of this act shall be subject to the expiration  and
    37  reversion  of  such  subdivision pursuant to section 5 of chapter 678 of
    38  the laws of 2007, as amended, when upon  such  date  the  provisions  of
    39  section five of this act shall take effect.
Go to top