Ensures that construction and fabrication done off of a public work site for specific use only in a public work project be compensated at the prevailing wage rate.
STATE OF NEW YORK
________________________________________________________________________
373--B
2023-2024 Regular Sessions
IN ASSEMBLY
January 6, 2023
___________
Introduced by M. of A. BRONSON, TAYLOR, DARLING, ROZIC, CRUZ, GLICK,
L. ROSENTHAL, SIMONE, LAVINE, BORES, GONZALEZ-ROJAS, SEAWRIGHT, BENE-
DETTO, REYES, WEPRIN, BRABENEC, SILLITTI, RAGA, SLATER, BRAUNSTEIN,
DINOWITZ, DURSO, ZEBROWSKI, ARDILA, STECK, RA, BURGOS, EPSTEIN, RAJKU-
MAR, GIBBS, TAPIA, HYNDMAN, BERGER, LEE, BURDICK, JACOBSON, K. BROWN,
BENDETT, REILLY, McDONOUGH, PHEFFER AMATO, MIKULIN -- read once and
referred to the Committee on Labor -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee -- recommitted to the Committee on Labor in accordance with Assem-
bly Rule 3, sec. 2 -- reported and referred to the Committee on Ways
and Means -- reported and referred to the Committee on Rules -- Rules
Committee discharged, bill amended, ordered reprinted as amended and
recommitted to the Committee on Rules
AN ACT to amend the labor law, in relation to inclusion of certain off-
site custom fabrication as public work for the purposes of payment of
prevailing wage; and providing for the repeal of certain provisions
upon expiration thereof
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative findings and intent. The legislature finds and
2 declares that the prevailing wage law was established to provide fair
3 and equitable working conditions, wages and supplementary benefits for
4 persons employed on public works construction projects.
5 The legislature further finds and declares that there are growing
6 number of instances where custom fabricated materials are fabricated off
7 the public work job site either to meet the unique specifications of the
8 project subject to a public work contract or for the contractor's
9 convenience or to evade the wage requirements imposed by the prevailing
10 wage law.
11 The legislature further finds and declares that in many instances the
12 prevailing wage is not paid to persons involved in off-site fabrication
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01720-05-4
A. 373--B 2
1 of materials which are used specifically for public works projects to
2 the detriment of the workers at the site and the local economy where the
3 public work is situated.
4 The legislature further finds and declares that, in effect, various
5 custom fabricated materials on local public works construction projects
6 are being entirely outsourced to workers at a location or locations away
7 from the project site or in foreign jurisdictions, thereby intentionally
8 evading the payment of the prevailing wage and benefit package by elimi-
9 nating the employment of workers at the site of the project to the
10 detriment of those workers and the local economy.
11 It is the intent of the legislature that construction and fabrication
12 done off the public work site for specific use only in public work
13 projects be compensated at the prevailing wage rate.
14 § 2. Subdivision 3 of section 220 of the labor law is amended by
15 adding a new paragraph (f) to read as follows:
16 (f) (i) For the purposes of this subdivision contractors or subcon-
17 tractors engaged in custom fabrication shall not be regarded as material
18 suppliers. For the purposes of this subdivision, a legal day's work for
19 which the prevailing rate of wages for the New York county in which the
20 public works project is situated shall be paid to laborers, workers and
21 mechanics shall include custom fabrication regardless of whether the
22 custom fabrication occurs on-site, off-site or in another jurisdiction
23 outside the state. It shall be a condition of the contract concerning
24 all such custom fabrication work that the contractor or employer awarded
25 the public work contract, except where the project includes federal
26 funding that triggers federal rules for wage requirements, and any
27 subcontractor thereto shall covenant to pay the on-site prevailing wage
28 required for workers at the site of the public work project to those
29 workers performing the custom fabrication where a contract for custom
30 fabrication exceeds two hundred fifty thousand dollars or for contracts
31 where the cumulative annual total of contracts performed by the custom
32 fabricator has exceeded five hundred thousand dollars. In addition,
33 custom fabricators who choose to perform a public works contract exceed-
34 ing two hundred fifty thousand dollars or who exceed five hundred thou-
35 sand dollars in public works contracts in total in a single year shall
36 be required to pay the on-site prevailing wage to those workers perform-
37 ing custom fabrication for subsequent public works contracts, regardless
38 of the amount, thereafter for at least one year and shall register with
39 the department under section two hundred twenty-i of this article and
40 remain registered for at least one year in order to qualify to perform
41 future custom fabrication with regard to public works projects. Each
42 contractor or subcontractor who employs workers off-site for the custom
43 fabrication work related to a public work project shall maintain certi-
44 fied payrolls for those workers and provide such payrolls, with original
45 certifications, to the department at least once every thirty days. For
46 the purposes of this subdivision the term "custom fabrication" shall
47 include, but not be limited to, the fabrication of exterior or interior
48 wall panel systems, the fabrication of woodwork, cases, cabinets or
49 counters and the fabrication of electrical, plumbing, heating, cooling,
50 ventilation or exhaust duct systems including the drafting of technical
51 drawings and plans, and mechanical insulation solely and specifically
52 designed and engineered for installation in the construction, repair or
53 renovation of a building which is the subject of a contract to which the
54 state, a department of the state, a board or officer in the state, a
55 municipal corporation, a public benefit corporation or a commission
56 appointed pursuant to law is a party.
A. 373--B 3
1 (ii) The department of jurisdiction, as defined in subdivision three-a
2 of this section and including any entity to whom such department of
3 jurisdiction delegates their authority, shall be required to report to
4 the fiscal officer the intention to contract for custom, off-site fabri-
5 cation of any materials on all contracts, regardless of the amount,
6 which may include the employment of laborers, workers or mechanics in
7 the application to the fiscal officer for the approval of such contract.
8 The department of jurisdiction's report shall state the name and address
9 of the off-site, custom fabricator, identify the custom materials that
10 are being fabricated off-site and the quantity thereof, the estimated
11 and actual cost of the off-site fabrication, including the transporta-
12 tion of the materials to the site of the work and the estimated number
13 of workers employed to complete the custom fabrication at the off-site
14 location. Upon receipt of the department of jurisdiction's report, the
15 fiscal officer shall make available said report to the public through
16 its website and, similarly, maintain and publish on its website all data
17 specified herein for each custom fabricator.
18 (iii) The fiscal officer shall produce an annual report on the econom-
19 ic impact to the state businesses and residents due to off-site fabri-
20 cation.
21 § 3. This act shall take effect on the sixtieth day after it shall
22 have become a law and shall apply only to those contracts put out to bid
23 on or after such effective date; provided, however, that subparagraph
24 (i) of paragraph (f) of subdivision 3 of section 220 of the labor law,
25 as added by section two of this act, shall expire and be deemed repealed
26 upon the ruling of a court of competent jurisdiction that the require-
27 ments of such subparagraph are unenforceable on fabricators located
28 outside the state; provided, further, that the commissioner of labor
29 shall notify the legislative bill drafting commission upon the occur-
30 rence of such a court ruling in order that the commission may maintain
31 an accurate and timely effective data base of the official text of the
32 laws of the state of New York in furtherance of effectuating the
33 provisions of section 44 of the legislative law and section 70-b of the
34 public officers law.
