Establishes the public works security and accountability act which requires public works contractors and sub-contractors to establish back-up systems and other security measures in the event of an attack or major disaster; sets penalties for failure to post prevailing wage schedules; increases non-compliance withholding; makes provisions relating to debarment involving the use of non-compliant sub-contractors; requires sub-contracts to be in writing; requires all workers to be provided a pay stub; and requires the maintenance of a sign-in registry.
STATE OF NEW YORK
________________________________________________________________________
7073
2009-2010 Regular Sessions
IN ASSEMBLY
March 19, 2009
___________
Introduced by M. of A. JOHN, NOLAN, ALFANO, SCHROEDER -- Multi-Sponsored
by -- M. of A. ABBATE, CLARK, COLTON, HEASTIE, MARKEY, MAYERSOHN,
MILLMAN, ORTIZ, PERALTA, PERRY, WRIGHT -- read once and referred to
the Committee on Labor
AN ACT to amend the labor law, in relation to establishing the public
works security and accountability act
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as "the public
2 works security and accountability act".
3 § 2. The labor law is amended by adding a new section 222-b to read as
4 follows:
5 § 222-b. Public work site security. 1. Contractors and sub-contractors
6 shall establish an incident management system to ensure that informa-
7 tion, materials, the construction site and all employees are secure and
8 accounted for in the case of a terrorist attack or a major disaster.
9 Such incident management system shall include the following provisions:
10 a. The requirement that duplicate copies of all essential information
11 be maintained at a secure off-site facility; and
12 b. The establishment of protections commensurate with the risk and
13 magnitude of the harm resulting from unauthorized access, use, disclo-
14 sure, disruption, modification, or destruction of:
15 (i) information collected or maintained by or on behalf of the
16 contracting agency; and
17 (ii) information systems used or operated by the contractor or sub-
18 contractor.
19 2. a. In any public works contract, the contractor or sub-contractor
20 shall:
21 (i) indicate whether the job will include explosives or any other
22 incendiary devices;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10445-01-9
A. 7073 2
1 (ii) prior to the legal use of any explosive materials, verify that
2 the proper user permits have been obtained and copies of such permits
3 shall be maintained on the work site where such explosives will be used;
4 (iii) attach copies of all permits or certificates involving the use
5 of such explosives or devices, including user permits for individuals
6 employed by the contractor or sub-contractor; and
7 (iv) certify in writing that he or she is familiar with all published
8 federal, state and local laws relating to explosives.
9 b. In those jobs where explosives may be used, the contractor shall
10 designate a place of storage for explosive materials which meets the
11 legal standards for public safety and security against theft pursuant
12 to applicable federal and state laws.
13 c. Contractors and sub-contractors shall report any theft of such
14 materials to local authorities no later than twenty-four hours after
15 discovery. The failure to report a theft of such materials in a timely
16 manner shall be punishable by a fine of not less than one thousand
17 dollars nor more than five thousand dollars.
18 3. Every contractor or sub-contractor shall maintain on the site of
19 the work, or on the site where workers report to work, original sign-in
20 and sign-out logs reflecting the name, social security number, the actu-
21 al dates and times of work, including arrival and departure times, of
22 all laborers, workers or mechanics employed on the public work, and the
23 classification in which they worked during such times. Such records
24 shall be certified by an officer of the contractor or sub-contractor and
25 the site manager, and such records shall immediately be produced on the
26 site of the work, or submitted within five days to the fiscal officer
27 upon receipt of a request by the fiscal officer to produce such records.
28 Such records shall be maintained by the contractor or sub-contractor for
29 three years after the final acceptance of the project. Knowingly provid-
30 ing the fiscal officer with false records shall be a class A misdemea-
31 nor.
32 § 3. Subdivision 3 of section 220 of the labor law is amended by
33 adding a new paragraph (f) to read as follows:
34 (f) All wages payable under this article shall be accompanied by a
35 written receipt or statement, such as a pay stub, detailing, at a mini-
36 mum, the hours and days worked by such employee, the job classification
37 at which the employee was employed, and the prevailing wage rate and the
38 supplement paid to such employee, including sums which are not paid
39 directly to the employee and which are expended for supplements.
40 § 4. Subparagraph (ii) of paragraph a of subdivision 3-a of section
41 220 of the labor law, as separately amended by chapters 7 and 63 of the
42 laws of 2008, is amended to read as follows:
43 (ii) The contractor and every sub-contractor on public works contracts
44 shall post in a prominent and accessible place on the site where the
45 work is performed a legible statement of all wage rates and supplements
46 as specified in the contract to be paid or provided, as the case may be,
47 for the various classes of mechanics, workers, or laborers employed on
48 the work. Such posted statement shall be written in plain English and
49 titled, in lettering no smaller than two inches in height and two inches
50 in width, with the phrase "Prevailing Rate of Wages". Each contractor
51 or sub-contractor shall ensure that such statement is provided in
52 English, Spanish and any other languages spoken by ten percent or more
53 of the workers employed by the contractor or sub-contractors. Such post-
54 ed statement shall be constructed of materials capable of withstanding
55 adverse weather conditions. The contractor and every sub-contractor
56 shall notify all laborers, workers or mechanics in their employ in writ-
A. 7073 3
1 ing of the prevailing rate of wage for their particular job classifica-
2 tion. Such notification shall be given to every laborer, worker or
3 mechanic on their first pay stub and with every pay stub thereafter. At
4 the beginning of performance of every public works contract, and with
5 the first paycheck after July first of each year, the contractor and
6 every sub-contractor shall notify all laborers, workers, and mechanics
7 in their employ in writing, in accordance with such form as is
8 prescribed by the fiscal officer, of the telephone number and address
9 for the fiscal officer. The notice shall also inform each laborer, work-
10 er, or mechanic of his or her right to contact the fiscal officer or
11 some other representative if, at any time while working for the public
12 works contractor or sub-contractor, he or she does not receive the prop-
13 er prevailing rate of wages or supplements for his or her particular job
14 classification that he or she is entitled to receive under the contract.
15 If after investigation the fiscal officer finds that a contractor or
16 sub-contractor has (1) failed to post any notice required under this
17 subdivision, (2) failed to set forth the prevailing wage on the pay
18 stub, (3) wilfully posted the incorrect prevailing wage, or (4) wilfully
19 set forth the incorrect prevailing wage on the pay stub, the fiscal
20 officer, shall by an order which shall describe particularly the nature
21 of the alleged violation, assess the contractor or sub-contractor a
22 civil penalty of not more than fifty dollars upon the first finding of a
23 violation, two hundred fifty dollars upon the second finding of a
24 violation, and five hundred dollars for each subsequent violation. In
25 assessing the amount of the penalty, the fiscal officer shall give due
26 consideration to the size of the employer's business, the good faith of
27 the employer, and the gravity of the violation.
28 § 5. Paragraph c of subdivision 3-a of section 220 of the labor law,
29 as added by chapter 137 of the laws of 1985, is amended to read as
30 follows:
31 c. The fiscal officer may require any person or corporation performing
32 such public work to file with the fiscal officer within ten days of
33 receipt of said request, payroll records, including the reports required
34 in section two hundred twenty-two-b of this article, sworn to as to
35 their validity and accuracy, requested by the fiscal officer, for said
36 public work or for any public or private work performed by said person
37 or corporation during the same period of time as said public work. In
38 the event said person or corporation fails to provide the requested
39 information within the allotted ten days, the fiscal officer shall,
40 within fifteen days, order the department of jurisdiction to immediately
41 withhold from payment to said person or corporation up to twenty-five
42 percent of the amount, not to exceed one [hundred thousand] million
43 dollars, to be paid to said person or corporation under the terms of the
44 contract pursuant to which said public work is being performed. Said
45 amount withheld shall be immediately released upon receipt by the
46 department of jurisdiction of a notice from the fiscal officer indicat-
47 ing that the request for records had been satisfied.
48 § 6. Subparagraph 1 of paragraph b of subdivision 3 of section 220-b
49 of the labor law, as amended by chapter 241 of the laws of 2002, is
50 amended to read as follows:
51 (1) When two final determinations have been rendered against a
52 contractor, subcontractor, successor, or any substantially-owned affil-
53 iated entity of the contractor or subcontractor, any of the partners if
54 the contractor or subcontractor is a partnership, any officer of the
55 contractor or subcontractor who knowingly participated in the violation
56 of this article, any of the shareholders who own or control at least ten
A. 7073 4
1 per centum of the outstanding stock of the contractor or subcontractor
2 or any successor within any consecutive six-year period determining that
3 such contractor, subcontractor, successor, or any substantially-owned
4 affiliated entity of the contractor or subcontractor, any of the part-
5 ners or any of the shareholders who own or control at least ten per
6 centum of the outstanding stock of the contractor or subcontractor, any
7 officer of the contractor or subcontractor who knowingly participated in
8 the violation of this article has [wilfully] willfully failed to pay the
9 prevailing rate of wages or to provide supplements in accordance with
10 this article, or has engaged in a pattern or practice of contracting
11 with subcontractors who willfully fail to pay the prevailing wage or to
12 provide supplements in accordance with this article, whether such fail-
13 ures were concurrent or consecutive and whether or not such final deter-
14 minations concerning separate public work projects are rendered simul-
15 taneously, such contractor, subcontractor, successor, or any
16 substantially-owned affiliated entity of the contractor or subcontrac-
17 tor, any of the partners if the contractor or subcontractor is a part-
18 nership or any of the shareholders who own or control at least ten per
19 centum of the outstanding stock of the contractor or subcontractor, any
20 officer of the contractor or subcontractor who knowingly participated in
21 the violation of this article shall be ineligible to submit a bid on or
22 be awarded any public work contract or subcontract with the state, any
23 municipal corporation or public body for a period of five years from the
24 second final determination, provided, however, that where any such final
25 determination involves the falsification of payroll records or the kick-
26 back of wages or supplements, the contractor, subcontractor, successor,
27 or any substantially-owned affiliated entity of the contractor or
28 subcontractor, any partner if the contractor or subcontractor is a part-
29 nership or any of the shareholders who own or control at least ten per
30 centum of the outstanding stock of the contractor or subcontractor, any
31 officer of the contractor or subcontractor who knowingly participated in
32 the violation of this article shall be ineligible to submit a bid on or
33 be awarded any public work contract with the state, any municipal corpo-
34 ration or public body for a period of five years from the first final
35 determination.
36 § 7. Section 220 of the labor law is amended by adding a new subdivi-
37 sion 4-a to read as follows:
38 4-a. 1. No contractor or sub-contractor can engage a sub-contractor or
39 any person to perform the whole or any part of a public works or
40 improvement sub-contract except pursuant to a written agreement.
41 2. The terms and conditions of such agreement shall include, but not
42 be limited to:
43 a. the names of the parties;
44 b. the office addresses of the parties, which shall not be a post
45 office box;
46 c. if the sub-contractor is not a corporation, the names of the indi-
47 vidual owners or partners and their home addresses;
48 d. the tax identification number of the sub-contractor;
49 e. a description of the goods, work or services to be provided;
50 f. the work location or site where the goods, work or services are to
51 be provided;
52 g. the projected schedule for delivery of goods or completion of such
53 work or services;
54 h. the value of the sub-contract;
55 i. the projected number of employees and their work classifications;
56 and
A. 7073 5
1 j. an agreement to abide by and comply with all applicable state and
2 federal labor laws, including prevailing wage laws, posting requirements
3 and the requirements of section two hundred twenty-two-b of this arti-
4 cle, where applicable.
5 § 8. Subdivisions 1, 2 and 6 of section 231 of the labor law, as added
6 by chapter 777 of the laws of 1971, are amended to read as follows:
7 1. Every contractor shall pay a service employee under a contract for
8 building service work a wage of not less than the prevailing wage in the
9 locality for the craft, trade or occupation of the service employee.
10 Such wages shall be accompanied by a written receipt or statement, such
11 as a pay stub, detailing, at a minimum, the hours and days worked by
12 such employee, the job classification at which the employee is employed,
13 and the prevailing wage rate and the supplement paid to such employee,
14 including sums which are not paid directly to the employee and which are
15 expended for supplements.
16 2. The obligation of a contractor to pay prevailing supplements may be
17 discharged by furnishing any equivalent combinations of fringe benefits
18 or by making equivalent or differential payments in cash provided such
19 benefit is disclosed on an accompanied written receipt or statement and
20 under rules and regulations established by the fiscal officer.
21 6. (a) No later than the first day upon which work on said contract is
22 performed by any employee, the contractor shall post in a prominent and
23 accessible place on the site of the work a legible statement of the
24 wages to be paid to the [workmen] workers employed thereon. Each
25 contractor or sub-contractor shall ensure that such statement is
26 provided in English, Spanish and any other languages spoken by ten
27 percent or more of the workers employed by the contractor or sub-con-
28 tractors. Every contractor or sub-contractor who fails to post such
29 statement shall, for the first day of a violation thereof, be liable for
30 a civil penalty of not less than fifty dollars nor more than one hundred
31 dollars; and for the second day of such violation and each subsequent
32 day thereafter until such posting is displayed, be liable for a civil
33 penalty that is two times the amount of the penalty of the previous day,
34 not to exceed ten thousand dollars per day. Where the fiscal officer is
35 the commissioner, the fine shall be paid to the commissioner for deposit
36 in the state treasury. Where the fiscal officer is the city comptroller
37 of a city with a population in excess of one million, the penalty shall
38 be paid to said officer for deposit in the city treasury.
39 (b) Every contractor or sub-contractor shall maintain on the site of
40 the work, or on the site where workers report to work, original sign-in
41 and sign-out logs reflecting the name, social security number, the actu-
42 al dates and times of work, including arrival and departure times, of
43 all workers employed under the service contract, and the classification
44 in which they worked during such times. Such records shall be certified
45 by an officer of the contractor or sub-contractor and shall immediately
46 be produced on the site of the work, or submitted within five days to
47 the fiscal officer upon receipt of a request by the fiscal officer to
48 produce such records. Such records shall be maintained by the contractor
49 or sub-contractor for three years after the final acceptance of the
50 project. Knowingly providing the fiscal officer with false records shall
51 be a class A misdemeanor.
52 § 9. Paragraph (c) of subdivision 1 of section 234 of the labor law,
53 as added by chapter 777 of the laws of 1971, is amended to read as
54 follows:
55 (c) to examine the books, documents and records pertaining to the
56 wages paid to, and the hours of work performed by, service employees and
A. 7073 6
1 to require the immediate production of records required to be maintained
2 pursuant to subdivision one of section two hundred thirty-three of this
3 article. If a contractor or sub-contractor fails to respond within ten
4 days to such a request, the fiscal officer shall, within fifteen days,
5 order the department of jurisdiction to immediately withhold from
6 payment to said person or corporation up to twenty-five percent of the
7 amount, not to exceed one million dollars, to be paid to said contractor
8 under the terms of the service contract. Said amount withheld shall be
9 immediately released upon receipt by the department of jurisdiction of a
10 notice from the fiscal officer indicating that the request for records
11 had been satisfied;
12 § 10. Subdivision 7 of section 235 of the labor law, as amended by
13 chapter 547 of the laws of 1998, is amended to read as follows:
14 7. When, pursuant to the provisions of this section, two final orders
15 have been entered against a contractor, subcontractor, successor, or any
16 substantially-owned affiliated entity of the contractor or subcontrac-
17 tor, any of the partners if the contractor or subcontractor is a part-
18 nership, any of the five largest shareholders of the contractor or
19 subcontractor, any officer of the contractor or subcontractor who know-
20 ingly participated in the violation of this article within any consec-
21 utive six-year period determining that such contractor or subcontractor
22 and/or its successor, substantially-owned affiliated entity of the
23 contractor or subcontractor, any of the partners or any of the five
24 largest shareholders of the contractor or subcontractor, any officer of
25 the contractor or subcontractor who knowingly participated in the
26 violation of this article has willfully failed to pay the prevailing
27 wages in accordance with the provisions of this article, or has engaged
28 in a pattern or practice of contracting with subcontractors who willful-
29 ly fail to pay the prevailing wage or to provide supplements in accord-
30 ance with this article, whether such failures were concurrent or consec-
31 utive and whether or not such final determinations concerning separate
32 public building service contracts are rendered simultaneously, such
33 contractor, subcontractor, successor, and if the contractor, subcontrac-
34 tor, successor, or any substantially-owned affiliated entity of the
35 contractor or subcontractor, any of the partners if the contractor or
36 subcontractor is a partnership, or any of the five largest shareholders
37 of the contractor or subcontractor, any officer of the contractor or
38 subcontractor who knowingly participated in the violation of this arti-
39 cle, or any successor is a corporation, any officer of such corporation
40 who knowingly participated in such failure, shall be ineligible to
41 submit a bid on or be awarded any public building service work for a
42 period of five years from the date of the second order, provided, howev-
43 er, that where any such final order involves the falsification of
44 payroll records or the kickback of wages, the contractor, subcontractor,
45 successor, substantially-owned affiliated entity of the contractor or
46 subcontractor, any partner if the contractor or subcontractor is a part-
47 nership or any of the five largest shareholders of the contractor or
48 subcontractor, any officer of the contractor or subcontractor who know-
49 ingly participated in the violation of this article shall be ineligible
50 to submit a bid on or be awarded any public building service contract or
51 subcontract with the state, any municipal corporation or public body for
52 a period of five years from the date of the first final order. Nothing
53 in this subdivision shall be construed as affecting any provision of any
54 other law or regulation relating to the awarding of public contracts.
55 § 11. This act shall take effect on the one hundred eightieth day
56 after it shall have become a law.
