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
________________________________________________________________________
5475--B
2023-2024 Regular Sessions
IN SENATE
March 6, 2023
___________
Introduced by Sens. JACKSON, ADDABBO, CHU, COMRIE, FERNANDEZ, HINCHEY,
HOYLMAN-SIGAL, KAVANAGH, KRUEGER, MATTERA, MAYER, PALUMBO, PARKER,
RAMOS, SKOUFIS, STAVISKY, WEIK -- read twice and ordered printed, and
when printed to be committed to the Committee on Labor -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- recommitted to the Committee on Labor in accord-
ance with Senate Rule 6, sec. 8 -- reported favorably from said
committee and committed to the Committee on Finance -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
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
13 of materials which are used specifically for public works projects to
14 the detriment of the workers at the site and the local economy where the
15 public work is situated.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01720-04-4
S. 5475--B 2
1 The legislature further finds and declares that, in effect, various
2 custom fabricated materials on local public works construction projects
3 are being entirely outsourced to workers at a location or locations away
4 from the project site or in foreign jurisdictions, thereby intentionally
5 evading the payment of the prevailing wage and benefit package by elimi-
6 nating the employment of workers at the site of the project to the
7 detriment of those workers and the local economy.
8 It is the intent of the legislature that construction and fabrication
9 done off the public work site for specific use only in public work
10 projects be compensated at the prevailing wage rate.
11 § 2. Subdivision 3 of section 220 of the labor law is amended by
12 adding a new paragraph (f) to read as follows:
13 (f) (i) For the purposes of this subdivision contractors or subcon-
14 tractors engaged in custom fabrication shall not be regarded as material
15 suppliers. For the purposes of this subdivision, a legal day's work for
16 which the prevailing rate of wages for the New York county in which the
17 public works project is situated shall be paid to laborers, workers and
18 mechanics shall include custom fabrication regardless of whether the
19 custom fabrication occurs on-site, off-site or in another jurisdiction
20 outside the state. It shall be a condition of the contract concerning
21 all such custom fabrication work that the contractor or employer awarded
22 the public work contract, except where the project includes federal
23 funding that triggers federal rules for wage requirements, and any
24 subcontractor thereto shall covenant to pay the on-site prevailing wage
25 required for workers at the site of the public work project to those
26 workers performing the custom fabrication where a contract for custom
27 fabrication exceeds two hundred fifty thousand dollars or for contracts
28 where the cumulative annual total of contracts performed by the custom
29 fabricator has exceeded five hundred thousand dollars. In addition,
30 custom fabricators who choose to perform a public works contract exceed-
31 ing two hundred fifty thousand dollars or who exceed five hundred thou-
32 sand dollars in public works contracts in total in a single year shall
33 be required to pay the on-site prevailing wage to those workers perform-
34 ing custom fabrication for subsequent public works contracts, regardless
35 of the amount, thereafter for at least one year and shall register with
36 the department under section two hundred twenty-i of this article and
37 remain registered for at least one year in order to qualify to perform
38 future custom fabrication with regard to public works projects. Each
39 contractor or subcontractor who employs workers off-site for the custom
40 fabrication work related to a public work project shall maintain certi-
41 fied payrolls for those workers and provide such payrolls, with original
42 certifications, to the department at least once every thirty days. For
43 the purposes of this subdivision the term "custom fabrication" shall
44 include, but not be limited to, the fabrication of exterior or interior
45 wall panel systems, the fabrication of woodwork, cases, cabinets or
46 counters and the fabrication of electrical, plumbing, heating, cooling,
47 ventilation or exhaust duct systems including the drafting of technical
48 drawings and plans, and mechanical insulation solely and specifically
49 designed and engineered for installation in the construction, repair or
50 renovation of a building which is the subject of a contract to which the
51 state, a department of the state, a board or officer in the state, a
52 municipal corporation, a public benefit corporation or a commission
53 appointed pursuant to law is a party.
54 (ii) The department of jurisdiction, as defined in subdivision three-a
55 of this section and including any entity to whom such department of
56 jurisdiction delegates their authority, shall be required to report to
S. 5475--B 3
1 the fiscal officer the intention to contract for custom, off-site fabri-
2 cation of any materials on all contracts, regardless of the amount,
3 which may include the employment of laborers, workers or mechanics in
4 the application to the fiscal officer for the approval of such contract.
5 The department of jurisdiction's report shall state the name and address
6 of the off-site, custom fabricator, identify the custom materials that
7 are being fabricated off-site and the quantity thereof, the estimated
8 and actual cost of the off-site fabrication, including the transporta-
9 tion of the materials to the site of the work and the estimated number
10 of workers employed to complete the custom fabrication at the off-site
11 location. Upon receipt of the department of jurisdiction's report, the
12 fiscal officer shall make available said report to the public through
13 its website and, similarly, maintain and publish on its website all data
14 specified herein for each custom fabricator.
15 (iii) The fiscal officer shall produce an annual report on the econom-
16 ic impact to the state businesses and residents due to off-site fabri-
17 cation.
18 § 3. This act shall take effect on the sixtieth day after it shall
19 have become a law and shall apply only to those contracts put out to bid
20 on or after such effective date; provided, however, that subparagraph
21 (i) of paragraph (f) of subdivision 3 of section 220 of the labor law,
22 as added by section two of this act, shall expire and be deemed repealed
23 upon the ruling of a court of competent jurisdiction that the require-
24 ments of such subparagraph are unenforceable on fabricators located
25 outside the state; provided, further, that the commissioner of labor
26 shall notify the legislative bill drafting commission upon the occur-
27 rence of such a court ruling in order that the commission may maintain
28 an accurate and timely effective data base of the official text of the
29 laws of the state of New York in furtherance of effectuating the
30 provisions of section 44 of the legislative law and section 70-b of the
31 public officers law.
