STATE OF NEW YORK
________________________________________________________________________
7472
2011-2012 Regular Sessions
IN ASSEMBLY
May 6, 2011
___________
Introduced by M. of A. BING, WRIGHT, V. LOPEZ, ABBATE, GOTTFRIED, DINOW-
ITZ, ORTIZ, KAVANAGH, HEVESI, ROSENTHAL, PERRY, COLTON, LANCMAN --
Multi-Sponsored by -- M. of A. CLARK, COOK, HEASTIE, McENENY -- 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
20 [five hundred] dollars and the principal purpose of which is to furnish
21 services through the use of [building] service employees. The
22 provisions of this article shall not apply to any employee directly or
23 indirectly performing work for or on behalf of a business improvement
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10637-02-1
A. 7472 2
1 district unless such work would have been subject to the requirements of
2 this article as in effect on January first, two thousand eleven. The
3 preceding sentence shall not be construed to affect any determination
4 hereafter by the fiscal officer or a court of competent jurisdiction as
5 to the applicability or inapplicability to such work of such require-
6 ments.
7 "[Building service] Service employee" or "employee" includes, but is
8 not limited, to, watchman, guard, doorman, building cleaner, porter,
9 handyman, janitor, gardener, groundskeeper, stationary fireman, elevator
10 operator and starter, window cleaner, and occupations relating to the
11 collection of garbage or refuse, and to the transportation of office
12 furniture and equipment, and to the transportation and delivery of
13 fossil fuel but does not include clerical, sales, professional, techni-
14 cian and related occupations.
15 "[Building service] Service employee" or "employee" also does not
16 include any employee to whom the provisions of articles eight and
17 [eight-a] eight-A of this chapter are applicable.
18 2. "[Building service] Service work" [or "service work"] means work
19 performed by a [building] service employee, but does not include work
20 performed for a contractor under a contract for the furnishing of
21 services by radio, telephone, telegraph or cable companies[; and any
22 contract for public utility services, including electric light and
23 power, water, steam and gas] or janitorial or security work performed on
24 the premises owned or operated by the power authority of the state of
25 New York unless such premises are jointly owned or operated with any
26 non-governmental utility or substantially-owned or affiliated entity of
27 such public utility as defined in subdivision three of this section.
28 3. "Public agency" means the state, any of its political subdivisions,
29 a public benefit corporation, a public authority, including a public
30 authority providing public utility services, or commission or special
31 purpose district board appointed pursuant to law, [and] a board of
32 education, and any public utility that distributes electric light or
33 power, or gas or steam services at retail rates regulated by the public
34 service commission pursuant to a franchise granted under the provisions
35 of section sixty-eight or eighty-one of the public service law, and any
36 substantially-owned affiliated entity of such public utility.
37 4. "Contractor" means any employer who employs employees to perform
38 [building] service work under a contract with a public agency and shall
39 include any of the contractor's subcontractors.
40 6. "Prevailing wage" means the wage determined by the fiscal officer
41 to be prevailing for the various classes of [building] service employees
42 in the locality. In no event shall the basic hourly cash rate of pay be
43 less than the statutory minimum wage established by article nineteen of
44 this chapter, or, in a city with a local law requiring a higher minimum
45 wage on city contract work, less than the minimum wage specified in such
46 local law.
47 8. "Fiscal officer" means the [industrial] commissioner, except for
48 [building] service work performed by or on behalf of a city, in which
49 case "fiscal officer" means the comptroller or other analogous officer
50 of such city.
51 9. "Fossil fuel" shall mean coal, petroleum products and fuel gases.
52 "Coal" shall include bituminous coal, anthracite coal and lignite. "Fuel
53 gases" shall include but not be limited to methane, natural gas, lique-
54 fied natural gas and manufactured fuel gases. "Petroleum products" shall
55 include all products refined or rerefined from synthetic or crude oil or
56 oil extracted from other sources, including natural gas liquids.
A. 7472 3
1 [Provided that nothing in this subdivision shall affect the exclusion
2 for public utility services set forth in subdivision two of this
3 section.]
4 10. "Substantially-owned affiliated entity" shall mean the parent
5 company of the public utility, contractor or subcontractor, any subsid-
6 iary of the public utility, contractor or subcontractor, or any entity
7 in which the parent of the public utility, contractor or subcontractor
8 owns more than fifty percent of the voting stock, or an entity in which
9 one or more of the top five shareholders of the public utility, contrac-
10 tor or subcontractor individually or collectively also owns a control-
11 ling share of the voting stock, or an entity which exhibits any other
12 indicia of control over the public utility, contractor or subcontractor
13 or over which the public utility, contractor or subcontractor exhibits
14 control, regardless of whether or not the controlling party or parties
15 have any identifiable or documented ownership interest. Such indicia
16 shall include: power or responsibility over employment decisions, access
17 to and/or use of the relevant entity's assets or equipment, power or
18 responsibility over contracts of the entity, responsibility for mainte-
19 nance or submission of certified payroll records, and influence over the
20 business decisions of the relevant entity.
21 15. "Person" shall mean a human being and shall include an "entity" as
22 defined in this article, including, but not limited to a contractor or
23 subcontractor.
24 § 3. Subdivision 4 of section 230 of the labor law, as added by chap-
25 ter 777 of the laws of 1971, is amended to read as follows:
26 4. "Contractor" means any employer who employs employees to perform
27 [building] service work under a contract with a public agency, and shall
28 include any of his subcontractors.
29 § 4. Subdivisions 1, 3, 4 and 5 of section 231 of the labor law, as
30 added by chapter 777 of the laws of 1971 and subdivision 5 as amended by
31 chapter 678 of the laws of 2007, are amended to read as follows:
32 1. Every contractor shall pay a service employee under a contract for
33 [building] service work a wage of not less than the prevailing wage in
34 the locality for the craft, trade or occupation of the service employee.
35 3. Each contract for [building] service work shall contain as part of
36 the specifications thereof a schedule of the wages required to be paid
37 to the various classes of service employees on such work, and each such
38 contract shall further contain a provision obligating the contractor to
39 pay each employee on such work not less than the wage specified for his
40 craft, trade or occupation in such schedule.
41 4. The public agency, or appropriate officer or agent thereof, whose
42 responsibility it is to prepare or direct the preparation of the plans
43 and specifications for a contract for [building] service work, shall
44 ascertain from such plans and specifications the classifications of
45 employees to be employed on such work and shall file a list of such
46 classifications with the fiscal officer, together with a statement of
47 the work to be performed. The fiscal officer shall determine the crafts,
48 trades and occupations required for such work and shall make a determi-
49 nation of the wages required to be paid in the locality for each such
50 craft, trade or occupation. A schedule of such wages shall be annexed to
51 and form a part of the specifications for the contract prior to the time
52 of the advertisement for bids on such contract and shall constitute the
53 schedule of wages referred to in subdivision three of this section.
54 5. Upon the award of a contract for [building] service work by a
55 public agency other than a city, the contracting public agency shall
56 immediately furnish to the commissioner: (a) the name and address of the
A. 7472 4
1 contractor to whom the contract was awarded; (b) the date when the
2 contract was awarded; and (c) the approximate consideration stipulated
3 for in the contract.
4 § 5. Subdivision 5 of section 231 of the labor law, as added by chap-
5 ter 777 of the laws of 1971, is amended to read as follows:
6 5. Upon the award of a contract for [building] service work by a
7 public agency other than a city, the contracting public agency shall
8 immediately furnish to the [industrial] commissioner: (a) the name and
9 address of the contractor to whom the contract was awarded; (b) the date
10 when the contract was awarded; and (c) the approximate consideration
11 stipulated for in the contract.
12 § 6. Paragraphs a and c of subdivision 2 and subdivision 7 of section
13 235 of the labor law, paragraph a of subdivision 2 and subdivision 7 as
14 amended and paragraph c of subdivision 2 as added by chapter 547 of the
15 laws of 1998, are amended and subdivision 2 is amended by adding a new
16 paragraph g to read as follows:
17 a. At the start of such investigation the fiscal officer may notify
18 the financial officer of the public agency interested who shall, at the
19 direction of the fiscal officer, forthwith withhold from any payment due
20 to the contractor executing the contract sufficient money to safeguard
21 the rights of the service employees and to cover the civil penalty that
22 may be assessed as provided herein, or, if there are insufficient moneys
23 still due or earned to the contractor or subcontractor to safeguard the
24 rights of the service employees and to cover the civil penalty that may
25 be assessed as provided herein, the financial officer of another civil
26 division which has entered or subsequently enters into a [building]
27 service work contract with the contractor or subcontractor, who shall
28 withhold from any payment due the contractor or subcontractor executing
29 any [building] service work, sufficient moneys to safeguard the rights
30 of the service employees and to cover the civil penalty that may be
31 assessed as provided herein.
32 c. The notice of withholding shall provide that the fiscal officer
33 intends to instruct the financial officer, not less than ten days
34 following service of the notice by mail, to withhold sufficient moneys
35 to safeguard the rights of the service employees and to cover the civil
36 penalty that may be assessed as provided herein, from any payment due
37 the notified party under any [building] service work contract pending
38 final determination. The notice of withholding shall provide that within
39 thirty days following the date of the notice of withholding the notified
40 party may, contest the withholding on the basis that the notified party
41 is not a partner or one of the five largest shareholders of the subcon-
42 tractor or contractor, an officer of the contractor or subcontractor who
43 knowingly participated in the violation of this article, a substantial-
44 ly-owned affiliated entity or successor. If the notified party fails to
45 contest the notice of withholding, or if the fiscal officer, after
46 reviewing the information provided by the notified party in such
47 contest, determines that the notified party is a partner or one of the
48 five largest shareholders, a substantially-owned affiliated entity, an
49 officer of the contractor or subcontractor who knowingly participated in
50 the violation of this article, or a successor, the fiscal officer may
51 instruct the financial officer to immediately withhold sufficient moneys
52 to safeguard the rights of the service employees and to cover the civil
53 penalty that may be assessed as provided herein from any payment due the
54 notified party under any [building] service work contract pending the
55 final determination.
A. 7472 5
1 g. The fiscal officer may require any person or corporation performing
2 such public work to file with the fiscal officer within ten days of
3 receipt of said request, payroll records, sworn to as to their validity
4 and accuracy, requested by the fiscal officer, for said service work or
5 for any public or private work performed by said person or corporation
6 during the same period of time as said service work. In the event said
7 person or corporation fails to provide the requested information within
8 the allotted ten days, the fiscal officer may, within fifteen days,
9 order the financial officer of the public agency to immediately withhold
10 from payment to said person or corporation up to twenty-five percent of
11 the amount, not to exceed five hundred thousand dollars, to be paid to
12 said person or corporation under the terms of the contract pursuant to
13 which said service work is being performed. Said amount withheld shall
14 be immediately released upon receipt by the public agency of a notice
15 from the fiscal officer indicating that the request for records had been
16 satisfied.
17 7. When, pursuant to the provisions of this section, two final orders
18 have been entered against a contractor, subcontractor, successor, or any
19 substantially-owned affiliated entity of the contractor or subcontrac-
20 tor, any of the partners if the contractor or subcontractor is a part-
21 nership, any of the five largest shareholders of the contractor or
22 subcontractor, any officer of the contractor or subcontractor who know-
23 ingly participated in the violation of this article within any consec-
24 utive six-year period determining that such contractor or subcontractor
25 and/or its successor, substantially-owned affiliated entity of the
26 contractor or subcontractor, any of the partners or any of the five
27 largest shareholders of the contractor or subcontractor, any officer of
28 the contractor or subcontractor who knowingly participated in the
29 violation of this article has willfully failed to pay the prevailing
30 wages in accordance with the provisions of this article, whether such
31 failures were concurrent or consecutive and whether or not such final
32 determinations concerning separate public [building] service work
33 contracts are rendered simultaneously, such contractor, subcontractor,
34 successor, and if the contractor, subcontractor, successor, or any
35 substantially-owned affiliated entity of the contractor or subcontrac-
36 tor, any of the partners if the contractor or subcontractor is a part-
37 nership, or any of the five largest shareholders of the contractor or
38 subcontractor, any officer of the contractor or subcontractor who know-
39 ingly participated in the violation of this article, or any successor is
40 a corporation, any officer of such corporation who knowingly partic-
41 ipated in such failure, shall be ineligible to submit a bid on or be
42 awarded any public [building] service work for a period of five years
43 from the date of the second order, provided, however, that where any
44 such final order involves the falsification of payroll records or the
45 kickback of wages, the contractor, subcontractor, successor, substan-
46 tially-owned affiliated entity of the contractor or subcontractor, any
47 partner if the contractor or subcontractor is a partnership or any of
48 the five largest shareholders of the contractor or subcontractor, any
49 officer of the contractor or subcontractor who knowingly participated in
50 the violation of this article shall be ineligible to submit a bid on or
51 be awarded any public [building] service work contract or subcontract
52 with the state, any municipal corporation or public body for a period of
53 five years from the date of the first final order. Nothing in this
54 subdivision shall be construed as affecting any provision of any other
55 law or regulation relating to the awarding of public contracts.
A. 7472 6
1 § 7. Subdivision 2 of section 237 of the labor law, as amended by
2 chapter 698 of the laws of 1988, is amended to read as follows:
3 2. a. Before payment is made by or on behalf of a public agency of any
4 sums due on account of a contract for service work, it shall be the duty
5 of the comptroller of the state or the financial officer of such public
6 agency or other officer or person charged with the custody and disburse-
7 ment of the state or corporate funds applicable to the contract under
8 and pursuant to which payment is made, to require the contractor to file
9 a statement in writing in form satisfactory to such officer certifying
10 to the amounts then due and owing from such contractor filing such
11 statement to or on behalf of any and all service employees for daily or
12 weekly wages on account of labor performed upon the work under the
13 contract, setting forth therein the names of the persons whose wages are
14 unpaid and the amount due to or on behalf of each respectively, which
15 statement so to be filed shall be verified by the oath of the contractor
16 that he or she has read such statement subscribed by him or her and
17 knows the contents thereof, and that the same is true of his or her own
18 knowledge. The contractor shall file these payroll records verified
19 under oath within ninety days after any labor is performed upon the work
20 under contract, or such other time as the fiscal officer may authorize.
21 Any person who willfully fails to file such payroll records with the
22 public agency shall be guilty of a class E felony.
23 b. Each public agency shall designate in writing an individual
24 employed by such department responsible for the receipt, collection and
25 review for facial validity of a contractor's certified payroll state-
26 ment, as set forth in this subdivision, before payment is made. Said
27 designation shall be filed with the fiscal officer and posted in a
28 conspicuous location at the work site. If the designated individual
29 cannot perform the receipt, collection and review of certified payrolls
30 duties as indicated above, for any reason, including but not limited to
31 reassignment, promotion or separation from employment, the public agency
32 must immediately designate another individual employed by such agency to
33 fulfill such responsibilities. In the event that a public agency fails
34 to name an individual responsible for the receipt, collection and review
35 for facial validity of contractors' certified payrolls, then the indi-
36 vidual so responsible shall be the individual who is the chief policy
37 making officer of such public agency.
38 § 8. Subdivision 2 of section 238 of the labor law, as added by chap-
39 ter 777 of the laws of 1971, is amended to read as follows:
40 2. When a contract for service work contains as part thereof a sched-
41 ule of wages as provided for in this article, any [contractor] person
42 who, after entering into such contract[, and any subcontractor of such
43 contractor who] willfully fails to pay to any service employee the wages
44 stipulated in such wage schedule [is guilty of a misdemeanor and upon
45 conviction shall be punished for a first offense by a fine of five
46 hundred dollars or by imprisonment for not more than thirty days or by
47 both fine and imprisonment; for a second offense by a fine of one thou-
48 sand dollars, and in] shall be guilty of a misdemeanor for the first
49 offense and upon conviction therefor shall be fined two thousand five
50 hundred dollars or twice the amount of underpayment, whichever is great-
51 er or imprisoned for not more than one year, or both. If a person stands
52 convicted of a violation of this section and within the previous six
53 years has been convicted one or more times of a violation of this
54 section in separate transactions, then such person shall be guilty of a
55 class E felony upon conviction for such subsequent offense, and shall be
56 fined five thousand dollars or triple the amount of underpayment, which-
A. 7472 7
1 ever is greater or imprisoned as authorized by section 70.00 of the
2 penal law or punished by both such fine and imprisonment, for each such
3 offense. In addition [thereto] to any other fine or penalty that may be
4 imposed for such felony offense, the contract on which the violation has
5 occurred shall be forfeited; and no such contractor shall be entitled to
6 receive any sum, nor shall any officer, agent or employee of the
7 contracting public agency pay any such sum or authorize its payment from
8 the funds under his or her charge or control to such contractor for work
9 done upon the contract on which the contractor has been convicted of a
10 second offense. If the contractor or subcontractor is a corporation, any
11 officer of such corporation who knowingly permits the corporation to
12 fail to make such payment shall also be guilty of [a misdemeanor] the
13 offense defined in this subdivision and the criminal and civil penalties
14 [herein] of this subdivision shall attach to such officer upon
15 conviction.
16 § 9. Severability. If any clause, sentence, paragraph, section or part
17 of this act be adjudged by any court of competent jurisdiction to be
18 invalid and after exhaustion of all further judicial review, the judg-
19 ment shall not affect, impair or invalidate the remainder thereof, but
20 shall be confined in its operation to the clause, sentence, paragraph,
21 section or part of this act directly involved in the controversy in
22 which the judgment shall have been rendered.
23 § 10. This act shall take effect on the ninetieth day after it shall
24 have become a law and shall apply to all contracts or other agreements
25 entered into, renewed or extended on or after such date; provided,
26 however, that:
27 (a) the amendments to subdivision 4 of section 230 of the labor law
28 made by section two of this act shall be subject to the expiration and
29 reversion of such subdivision pursuant to section 5 of chapter 678 of
30 the laws of 2007, as amended, when upon such date the provisions of
31 section three of this act shall take effect; and
32 (b) the amendments to subdivision 5 of section 231 of the labor law
33 made by section four of this act shall be subject to the expiration and
34 reversion of such subdivision pursuant to section 5 of chapter 678 of
35 the laws of 2007, as amended, when upon such date the provisions of
36 section five of this act shall take effect.
