Includes state and local agency and public authority work contracts within prevailing wage requirements; expands upon arrangements and contracts subject to the public work hours, wages and supplements requirements; defines public works to include all construction, demolition, reconstruction, excavation, rehabilitation, repairs, renovation or alteration of a building or improvement to property performed pursuant to a contract or other agreement entered into by the state or other public entity involving the employment of laborers; sunsets provision.
STATE OF NEW YORK
________________________________________________________________________
7072
2009-2010 Regular Sessions
IN ASSEMBLY
March 19, 2009
___________
Introduced by M. of A. JOHN, NOLAN -- Multi-Sponsored by -- M. of A.
SCHROEDER -- read once and referred to the Committee on Labor
AN ACT to amend the labor law, in relation to hours, wages and supple-
ments for public work 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. Subdivision 2 of section 220 of the labor law, as amended
2 by chapter 678 of the laws of 2007, is amended to read as follows:
3 2. Each contract to which the state [or a public benefit corporation
4 or a municipal corporation or a commission appointed pursuant to law] is
5 a party, including but not limited to, any contract, lease, grant, bond,
6 covenant or other debt agreement entered into directly or indirectly by
7 the state, an industrial development agency, any other public corpo-
8 ration as defined in section sixty-six of the general construction law,
9 a public authority, or a similar public entity, financing in whole or in
10 part, the construction, demolition, reconstruction, excavation, rehabil-
11 itation, repair, renovation or alteration of a building or an improve-
12 ment to property, and any contract for public work entered into by a
13 third party acting in place of, on behalf of and for the benefit of such
14 public entity pursuant to any lease, permit or other agreement between
15 such third party and the public entity, and which may involve the
16 employment of laborers, workers or mechanics shall contain a stipulation
17 that no laborer, worker or mechanic in the employ of the contractor,
18 subcontractor or other person doing or contracting to do the whole or a
19 part of the work contemplated by the contract shall be permitted or
20 required to work more than eight hours in any one calendar day or more
21 than five days in any one week except in cases of extraordinary emergen-
22 cy including fire, flood or danger to life or property. No such person
23 shall be so employed more than eight hours in any day or more than five
24 days in any one week except in such emergency. Extraordinary emergency
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10444-01-9
A. 7072 2
1 within the meaning of this section shall be deemed to include situations
2 in which sufficient laborers, workers and mechanics cannot be employed
3 to carry on public work expeditiously as a result of such restrictions
4 upon the number of hours and days of labor and the immediate commence-
5 ment or prosecution or completion without undue delay of the public work
6 is necessary in the judgment of the commissioner for the preservation of
7 the contract site and for the protection of the life and limb of the
8 persons using the same. Upon the application of any person interested,
9 the commissioner shall make a determination as to whether or not on any
10 public project or on all public projects in any area of this state,
11 sufficient laborers, workers and mechanics of any or all classifications
12 can be employed to carry on work expeditiously if their labor is
13 restricted to eight hours per day and five days per week, and in the
14 event that the commissioner determines that there are not sufficient
15 workers, laborers and mechanics of any or all classifications which may
16 be employed to carry on such work expeditiously if their labor is
17 restricted to eight hours per day and five days per week, and the imme-
18 diate commencement or prosecution or completion without undue delay of
19 the public work is necessary in the judgment of the commissioner for the
20 preservation of the contract site and for the protection of the life and
21 limb of the persons using the same, the commissioner shall grant a
22 dispensation permitting all laborers, workers and mechanics, or any
23 classification of such laborers, workers and mechanics, to work such
24 additional hours or days per week on such public project or in such
25 areas the commissioner shall determine. Whenever such a dispensation is
26 granted, all work in excess of eight hours per day and five days per
27 week shall be considered overtime work, and the laborers, workers and
28 mechanics performing such work shall be paid a premium wage commensurate
29 with the premium wages prevailing in the area in which the work is
30 performed. No such dispensation shall be effective with respect to any
31 public work unless and until the department of jurisdiction, as defined
32 in this section, certifies to the commissioner that such public work is
33 of an important nature and that a delay in carrying it to completion
34 would result in serious disadvantage to the public. Time lost in any
35 week because of inclement weather by employees engaged in the
36 construction, reconstruction and maintenance of highways outside of the
37 limits of cities and villages may be made up during that week and/or the
38 succeeding three weeks.
39 § 2. Subdivision 2 of section 220 of the labor law, as amended by
40 chapter 851 of the laws of 1947, is amended to read as follows:
41 2. Each contract to which the state [or a public benefit corporation
42 or a municipal corporation or a commission appointed pursuant to law] is
43 a party, including but not limited to, any contract, lease, grant, bond,
44 covenant or other debt agreement entered into directly or indirectly by
45 the state, an industrial development agency, any other public corpo-
46 ration as defined in section sixty-six of the general construction law,
47 a public authority, or a similar public entity, financing in whole or in
48 part, the construction, demolition, reconstruction, excavation, rehabil-
49 itation, repair, renovation or alteration of a building or an improve-
50 ment to property, and which may involve the employment of laborers,
51 [workmen] workers or mechanics shall contain a stipulation that no
52 laborer, [workman] worker or mechanic in the employ of the contractor,
53 subcontractor or other person doing or contracting to do the whole or a
54 part of the work contemplated by the contract shall be permitted or
55 required to work more than eight hours in any one calendar day or more
56 than five days in any one week except in cases of extraordinary emergen-
A. 7072 3
1 cy including fire, flood or danger to life or property. No such person
2 shall be so employed more than eight hours in any day or more than five
3 days in any one week except in such emergency. Extraordinary emergency
4 within the meaning of this section shall be deemed to include situations
5 in which sufficient laborers, [workmen] workers and mechanics cannot be
6 employed to carry on public work expeditiously as a result of such
7 restrictions upon the number of hours and days of labor and the immedi-
8 ate commencement or prosecution or completion without undue delay of the
9 public work is necessary in the judgment of the [industrial] commission-
10 er for the preservation of the contract site and for the protection of
11 the life and limb of the persons using the same. Upon the application of
12 any person interested, the [industrial] commissioner shall make a deter-
13 mination as to whether or not on any public project or on all public
14 projects in any area of this state, sufficient laborers, [workmen] work-
15 ers and mechanics of any or all classifications can be employed to carry
16 on work expeditiously if their labor is restricted to eight hours per
17 day and five days per week, and in the event that the [industrial]
18 commissioner determines that there are not sufficient [workmen] workers,
19 laborers and mechanics of any or all classifications which may be
20 employed to carry on such work expeditiously if their labor is
21 restricted to eight hours per day and five days per week, and the imme-
22 diate commencement or prosecution or completion without undue delay of
23 the public work is necessary in the judgment of the [industrial] commis-
24 sioner for the preservation of the contract site and for the protection
25 of the life and limb of the persons using the same, the [industrial]
26 commissioner shall grant a dispensation permitting all laborers, [work-
27 men] workers and mechanics, or any classification of such laborers,
28 [workmen] workers and mechanics, to work such additional hours or days
29 per week on such public project or in such areas the [industrial]
30 commissioner shall determine. Whenever such a dispensation is granted,
31 all work in excess of eight hours per day and five days per week shall
32 be considered overtime work, and the laborers, [workmen] workers and
33 mechanics performing such work shall be paid a premium wage commensurate
34 with the premium wages prevailing in the area in which the work is
35 performed. No such dispensation shall be effective with respect to any
36 public work unless and until the department of jurisdiction, as defined
37 in this section, certifies to the [industrial] commissioner that such
38 public work is of an important nature and that a delay in carrying it to
39 completion would result in serious disadvantage to the public. Time lost
40 in any week because of inclement weather by employees engaged in the
41 construction, reconstruction and maintenance of highways outside of the
42 limits of cities and villages may be made up during that week and/or the
43 succeeding three weeks.
44 § 3. Section 220 of the labor law is amended by adding a new subdivi-
45 sion 4-a to read as follows:
46 4-a. a. For the purposes of this article only, and subject to the
47 provisions of paragraphs b and c of this subdivision, public work or
48 public works shall include all construction, demolition, reconstruction,
49 excavation, rehabilitation, repairs, renovation or alteration of a
50 building or improvement to property performed pursuant to a contract or
51 other agreement entered into directly or indirectly by the state or
52 other public entity or public corporation governed by subdivision two of
53 this section involving the employment of laborers, workers or mechanics
54 where the state or another such public entity or public corporation
55 issues bonds or provides grants or other financial subsidies to finance
56 such projects in whole or in part, or enters into an agreement for the
A. 7072 4
1 ownership or use of such buildings or property with a private owner or
2 developer. For purposes of this article, public work or public works
3 shall be limited to all construction, demolition, reconstruction, exca-
4 vation, rehabilitation, repairs, renovation or alteration of a building
5 or improvement to property performed pursuant to the aforesaid contract
6 or other agreement and shall not include work performed subsequent ther-
7 eto.
8 b. The provisions of this article shall not apply to privately owned
9 projects whose net present value is less than two hundred thousand
10 dollars. Where the value of directly provided public funds and the net
11 present value over the first ten years of a project undertaken pursuant
12 to such contract of any indirect public subsidies, which shall include
13 but not be limited to interest rate relief and tax exemptions or abate-
14 ments, but which shall not include third-party payments, is one-third or
15 less of the total value of such project, the provisions of this article
16 shall not apply unless the project is substantially of a public nature
17 as determined by consideration of the following factors:
18 (1) the project is owned, leased and/or operated by a public entity;
19 (2) the project is not funded nor the debt amortized, directly or
20 indirectly, in whole or in part, by private funds, and the financial
21 risks of the project are with a public entity;
22 (3) the project is constructed pursuant to a contract required to be
23 publicly bid pursuant to law, and the design and construction of the
24 project is substantially controlled by a public entity;
25 (4) the project is substantially for a public purpose, benefit, enjoy-
26 ment or use.
27 c. The public entity or public corporation which is involved in a
28 project covered by this article shall determine, in the first instance,
29 whether the provisions of this article apply. On any project of total
30 value of two hundred fifty thousand dollars or more, or on a project not
31 required to be publicly advertised and competitively bid pursuant to any
32 applicable statute, the public entity or public corporation shall
33 provide notice to the commissioner and the commissioner of economic
34 development of the applicability of this article. Within thirty days of
35 receiving such notice, the commissioner shall affirm or overrule such
36 determination, notify the public entity or public corporation, and
37 publish the decision in the state register. Within fifteen days of such
38 publication, any party with a direct interest in the application of this
39 article, including the public entity or public corporation involved, may
40 appeal the decision of the commissioner to an impartial arbitration
41 process administered by the american arbitration association. Such arbi-
42 tration process shall be administered in an expedited fashion and
43 completed within thirty days after the receipt of a notice of appeal
44 under the rules established by the american arbitration association. The
45 thirty-day time period for completion of the arbitration may be extended
46 by the arbitrator for good cause. The determination of the arbitrator
47 shall be final, subject to review in accordance with article seventy-
48 five of the civil practice law and rules. All determinations made pursu-
49 ant to this paragraph shall be completed prior to advertising for
50 competitive bids or, where a contract is not required to be publicly
51 bid, prior to award of any contract. The commissioner shall maintain an
52 index of all such determinations. In the event that the private owner or
53 the developer agrees with the public entity or public corporation to pay
54 prevailing wages, the provisions of this paragraph shall not apply.
55 d. Apprentices shall be used on any public work project that will
56 require the use of workers from apprenticeable crafts or trades. Such
A. 7072 5
1 apprentices shall be participants in apprenticeship programs certified
2 by the department in accordance with regulations promulgated by the
3 commissioner pursuant to article twenty-three of this chapter. In
4 accordance with the federal Fitzgerald Act, 29 U.S.C. § 50, sponsors of
5 such apprenticeship programs shall establish affirmative action plans,
6 including goals and timetables, for the admission of minority and/or
7 female applicants into their apprentice eligibility pools. Where a spon-
8 sor fails to submit such goals and timetables or submits goals and time-
9 tables which the commissioner finds unacceptable, the commissioner shall
10 establish goals and timetables applicable to such sponsor for the admis-
11 sion of minority and/or female applicants into its eligibility pool or
12 selection of apprentices, as appropriate. Such sponsors shall make good
13 faith efforts to attain goals and timetables in accordance with the
14 requirements of this paragraph, including contracting with appropriate
15 local community-based organizations, for establishment and sponsorship
16 of pre-employment/pre-apprenticeship screening and training programs in
17 order to identify qualified persons for work opportunities in the
18 construction industry. The commissioner shall on an annual basis report
19 to the governor and the legislature concerning affirmative action plans
20 of such sponsors and whether the goals and timetables therein have been
21 attained.
22 § 4. Section 220 of the labor law is amended by adding a new subdivi-
23 sion 4-b to read as follows:
24 4-b. This article shall not apply to construction, demolition, recon-
25 struction, excavation, rehabilitation, repairs, renovation or alteration
26 of a privately owned residential building or improvement including
27 ancillary facilities except when a direct capital grant of public funds
28 which exceeds fifty-one percent of the total value of the project is
29 provided for new construction and either the total number of units in a
30 given building exceeds one hundred or the building exceeds seven stories
31 in height. A direct capital grant of public funds shall not be inter-
32 preted to include loans that are to be repaid or tax incentives.
33 § 5. This act shall take effect on the one hundred eightieth day after
34 it shall have become a law and shall apply to all applicable contracts
35 or other agreements entered into after such effective date; provided
36 that the amendments to subdivision 2 of section 220 of the labor law
37 made by section one of this act shall be subject to the expiration and
38 reversion of such subdivision pursuant to section 5 of chapter 678 of
39 the laws of 2007, as amended, when upon such date the provisions of
40 section two of this act shall take effect; provided, further that the
41 amendments made to sections two, three and four of this act shall remain
42 in full force and effect until June 30, 2014, when upon such date the
43 provisions of such sections shall expire and be deemed repealed.
