STATE OF NEW YORK
________________________________________________________________________
8142--E
2019-2020 Regular Sessions
IN ASSEMBLY
June 4, 2019
___________
Introduced by M. of A. HYNDMAN, CARROLL, TAYLOR, REYES, GRIFFIN, GOTT-
FRIED, PAULIN, DINOWITZ, NIOU, BLAKE, WEPRIN, DE LA ROSA, SIMON, SIMO-
TAS, D. ROSENTHAL, AUBRY, PERRY, BARNWELL, MOSLEY, ORTIZ, SEAWRIGHT,
JEAN-PIERRE, WALKER, QUART, DenDEKKER, RYAN, NOLAN, BENEDETTO, SOLAG-
ES, BRAUNSTEIN, ABBATE, KIM, JACOBSON, HEVESI, FERNANDEZ, COLTON,
ARROYO, FRONTUS, L. ROSENTHAL, WILLIAMS, EPSTEIN, BUCHWALD, JOYNER,
O'DONNELL, PHEFFER AMATO, M. G. MILLER, WRIGHT, RIVERA, PICHARDO,
SAYEGH, CRUZ, RAMOS, DICKENS, D'URSO, BICHOTTE -- Multi-Sponsored by
-- M. of A. LENTOL -- read once and referred to the Committee on Labor
-- committee discharged, bill amended, ordered reprinted as amended
and recommitted to said committee -- again reported from said commit-
tee with amendments, ordered reprinted as amended and recommitted to
said committee -- recommitted to the Committee on Labor in accordance
with Assembly Rule 3, sec. 2 -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee --
again reported from said committee with amendments, ordered reprinted
as amended and recommitted to said committee -- again reported from
said committee with amendments, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the labor law, in relation to enacting the "healthy
terminals 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 "healthy
2 terminals act".
3 § 2. The article heading of article 9 of the labor law, as added by
4 chapter 777 of the laws of 1971, is amended to read as follows:
5 PREVAILING WAGE FOR BUILDING SERVICE EMPLOYEES AND COVERED AIRPORT
6 WORKERS
7 § 3. Subdivisions 1, 4 and 8 of section 230 of the labor law, subdivi-
8 sion 1 as amended by chapter 542 of the laws of 1984, subdivision 4 as
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13101-11-0
A. 8142--E 2
1 amended by chapter 678 of the laws of 2007, and subdivision 8 as added
2 by chapter 777 of the laws of 1971, are amended and four new subdivi-
3 sions 1-a, 15, 16 and 17 are added to read as follows:
4 1. "Building service employee" or "service employee" means any person
5 performing work in connection with the care or maintenance of an exist-
6 ing building, or in connection with the transportation of office furni-
7 ture or equipment to or from such building, or in connection with the
8 transportation and delivery of fossil fuel to such building, for a
9 contractor under a contract with a public agency which is in excess of
10 one thousand five hundred dollars and the principal purpose of which is
11 to furnish services through the use of building service employees.
12 "Building service employee" or "service employee" includes, but is not
13 limited, to, watchman, guard, doorman, building cleaner, porter, handy-
14 man, janitor, gardener, groundskeeper, stationary fireman, elevator
15 operator and starter, window cleaner, and occupations relating to the
16 collection of garbage or refuse, and to the transportation of office
17 furniture and equipment, and to the transportation and delivery of
18 fossil fuel but does not include clerical, sales, professional, techni-
19 cian and related occupations.
20 "Building service employee" or "service employee" also does not
21 include any employee to whom the provisions of articles eight and
22 eight-a of this chapter are applicable.
23 1-a. "Employee" means a building service employee or a covered airport
24 worker.
25 4. "Contractor" means any employer who employs employees to perform
26 building service work under a contract with a public agency and shall
27 include any of the contractor's subcontractors. "Contractor" shall also
28 include any covered airport employer as such term is defined in this
29 section.
30 8. "Fiscal officer" means the industrial commissioner, except for
31 building service work performed by or on behalf of a city, or work
32 involving the employment of covered airport workers at a covered airport
33 location located in a city with a population of one million or more, in
34 which case "fiscal officer" means the comptroller or other analogous
35 officer of such city.
36 15. "Covered airport location" means any airport operating under the
37 jurisdiction of the Port Authority of New York and New Jersey within the
38 state.
39 16. "Covered airport worker" means any person employed by a covered
40 airport employer to perform work at a covered airport location provided
41 at least one-half of the employee's time during any workweek is
42 performed at a covered airport location. "Covered airport worker" shall
43 not include any person employed in an executive, administrative, or
44 professional capacity as defined in 29 U.S.C. 213 (a)(1). "Covered
45 airport worker" does not include any employee to whom the provisions of
46 article eight or eight-A of this chapter are applicable.
47 17. "Covered airport employer" means any person, corporation, limited
48 liability company, or association employing any covered airport worker
49 in an occupation, industry, trade, business or service. The term
50 "covered airport employer" shall not include a public agency.
51 § 4. The labor law is amended by adding a new section 231-a to read as
52 follows:
53 § 231-a. Prevailing wage for covered airport workers. 1. Notwithstand-
54 ing any other provision of law, rule, or regulation to the contrary, as
55 used in this section, the term "wage" shall mean: (a) basic hourly cash
56 rate of pay; and (b) supplements. The term "supplements" shall mean
A. 8142--E 3
1 fringe benefits including medical or hospital care, pensions on retire-
2 ment or death, compensation for injuries or illness resulting from occu-
3 pational activity, or insurance to provide any of the foregoing, unem-
4 ployment benefits, life insurance, disability and sickness insurance,
5 accident insurance, and other bona fide fringe benefits not otherwise
6 required by federal, state or local law to be provided by a covered
7 airport employer.
8 2. Not earlier than September first, two thousand twenty-one, every
9 covered airport employer shall pay a covered airport worker working at a
10 covered airport location a wage of not less than the prevailing wage in
11 the locality for the craft, trade, or occupation of such covered airport
12 worker.
13 3. The obligation of a covered airport employer to pay prevailing
14 supplements may be discharged by furnishing any equivalent combinations
15 of fringe benefits or by making equivalent or differential payments in
16 cash under rules and regulations established by the fiscal officer.
17 4. Notwithstanding any other provisions of law, rule, or regulation to
18 the contrary, for the purposes of this section "prevailing wage" shall
19 mean the wage determined by the fiscal officer to be prevailing for the
20 various classes of covered airport workers in the locality; provided,
21 however, that in no event shall the prevailing wage applicable to a
22 covered airport worker on and after September first, two thousand twen-
23 ty-one and every year thereafter be less than the following: (a) any
24 otherwise applicable minimum wage rate established through a policy of
25 the Port Authority of New York and New Jersey; and
26 (b) an amount of wages or supplements equal to the rate for health and
27 welfare for all occupations, designated by the fiscal officer based on
28 the determinations made by the federal department of labor pursuant to
29 the McNamara-O'Hara Service Contract Act of 1965 41 U.S.C. 6701 et seq
30 for the geographic region in which the covered airport location is
31 located and in effect on the date of the designation by the fiscal offi-
32 cer.
33 5. On or before September first, two thousand twenty-one and each
34 subsequent September first, the fiscal officer shall designate the wage
35 and supplemental benefits rate required under this section by classi-
36 fication and region in which each covered airport is located. The fiscal
37 officer shall publicly post such designated wage rate.
38 6. Nothing in this article shall be deemed to alter or limit any
39 employer's obligation to pay any otherwise applicable prevailing wage
40 under any other provision of this article or article eight of this chap-
41 ter.
42 § 5. The section heading of section 231 of the labor law, as added by
43 chapter 777 of the laws of 1971, is amended to read as follows:
44 Prevailing wage for building service employees.
45 § 6. Subdivisions 1 and 2 of section 233 of the labor law, as added by
46 chapter 777 of the laws of 1971, are amended to read as follows:
47 1. In all cases where service work is being performed pursuant to a
48 contract therefor, or where work is being performed pursuant to a
49 contract involving the employment of covered airport workers, the
50 contractor shall keep original payrolls or transcripts thereof,
51 subscribed and confirmed by him as true, under penalties of perjury,
52 showing the hours and days worked by each employee, the craft, trade or
53 occupation at which he was employed, and the wages paid.
54 2. Where the wages paid include sums which are not paid directly to
55 the [workmen] employees weekly and which are expended for supplements,
56 the records required to be maintained shall include a record of such
A. 8142--E 4
1 hourly payment on behalf of such employees, the supplement for which
2 such payment has been made, and the name and address of the person to
3 whom such payment has been made. In all such cases, the contractor shall
4 keep a true and inscribed copy of the agreement under which such
5 payments are made, a record of all net payments made thereunder, and a
6 list of all persons for whom such payments are made.
7 § 7. Paragraphs (a) and (c) of subdivision 1 of section 234 of the
8 labor law, as added by chapter 777 of the laws of 1971, are amended and
9 a new paragraph (e-1) is added to read as follows:
10 (a) to cause an investigation to be made to determine the wages
11 prevailing in any locality in all crafts, trades and occupations
12 involved in service work or work involving the employment of covered
13 airport workers; in making such investigation, the fiscal officer may
14 utilize wage and fringe benefit data from various sources including, but
15 not limited to, data and determinations of federal, state or other
16 governmental agencies;
17 (c) to examine the books, documents and records pertaining to the
18 wages paid to, and the hours of work performed by, [service] employees;
19 (e-1) to make a classification by craft, trade or other generally
20 recognized occupational category of the covered airport workers and to
21 determine whether such work has been performed by the employees in such
22 classification;
23 § 8. Subdivisions 1 and 3 of section 235 of the labor law, as added by
24 chapter 777 of the laws of 1971, are amended to read as follows:
25 1. Whenever the fiscal officer has reason to believe that [a service]
26 an employee has been paid less than the wages stipulated in the
27 contract, or if such contract has no wage schedule attached thereto and
28 the fiscal officer has reason to believe that [a service] an employee
29 has been paid less than the wages prevailing for his craft, trade or
30 occupation, the fiscal officer may, and upon receipt of a written
31 complaint from an employee employed thereon, shall conduct a special
32 investigation to determine the facts relating thereto.
33 3. If, despite the requirements of law, the contract for the service
34 work or work involving the employment of covered airport workers has
35 been awarded without the annexation thereto of the schedule of wages
36 provided for in this article, the fiscal officer shall determine in the
37 proceeding before him the wages prevailing at the time the work was
38 performed for the crafts, trades or occupations of the employees
39 involved.
40 § 9. Section 236 of the labor law, as added by chapter 777 of the laws
41 of 1971, is amended to read as follows:
42 § 236. Failure to protest underpayments. Notwithstanding any incon-
43 sistent provision of this chapter or of any other general, special or
44 local law, ordinance, charter or administrative code, [a service] an
45 employee shall not be barred from his right to recover the difference
46 between the amount actually paid to him and the amount which should have
47 been paid to him pursuant to an order entered under the provisions of
48 this article because of the prior receipt by him without protest of
49 wages paid or on account of his failure to state orally or in writing
50 upon any payroll or receipt which he is required to sign that the wages
51 received by him are received under protest, or on account of his failure
52 to indicate his protest against the amount, or that the amount so paid
53 does not constitute payment in full of wages due him for the period
54 covered by such payment.
55 § 10. Subdivisions 1 and 4 of section 237 of the labor law, as amended
56 by chapter 698 of the laws of 1988, are amended to read as follows:
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1 1. Subcontractors engaged for service work, or for work involving the
2 employment of covered airport workers, by a contractor or its subcon-
3 tractor shall, upon receipt from the contractor or its subcontractor of
4 the schedule of wages and supplements specified in the contract, provide
5 to the contractor or its subcontractor a verified statement attesting
6 that the subcontractor has received and reviewed such schedule of wages
7 and supplements, and agrees that it will pay the applicable prevailing
8 wages and will pay or provide the supplements specified therein. Such
9 verified statement shall be filed in the manner described in subdivision
10 three of this section, provided, however, that in the case of contracts
11 for work involving the employment of covered airport workers, such veri-
12 fied statement shall be subject to inspection upon request of the fiscal
13 officer. It shall be a violation of this article for any contractor or
14 its subcontractor to fail to provide for its subcontractor a copy of the
15 schedule of wages and supplements specified in the contract.
16 4. If any interested person shall have previously filed a protest in
17 writing objecting to the payment to any contractor or subcontractor to
18 the extent of the amount or amounts due or to become due to him for
19 daily or weekly wages for labor performed on the work for which such
20 contract was entered into, or if for any other reason it may be deemed
21 advisable, the comptroller of the state or the financial officer of the
22 public agency or other officer or person charged with the custody and
23 disbursement of the state or corporate funds applicable to the contract
24 for such work, may deduct from the whole amount of any payment on
25 account thereof the sum or sums admitted by any contractor or subcon-
26 tractor in such statement or statements as filed to be due and owing by
27 him or her on account of labor performed on such work before making
28 payment of the amount certified for payment in any estimate or voucher,
29 and may withhold the amount so deducted for the benefit of the [service]
30 employees whose wages are unpaid as shown by the verified statements
31 filed by any contractor or subcontractor, and may pay directly to any
32 person the amount or amounts shown by the statements filed as hereinbe-
33 fore required to be due to him or her or his or her duly authorized
34 collective bargaining labor organization receiving such payment to the
35 extent of the amount thereof.
36 § 11. Subdivision 2 of section 238 of the labor law, as added by chap-
37 ter 777 of the laws of 1971, is amended to read as follows:
38 2. When a contract for service work or work involving the employment
39 of covered airport workers contains as part thereof a schedule of wages
40 as provided for in this article, any contractor who, after entering into
41 such contract, and any subcontractor of such contractor who fails to pay
42 to any [service] employee the wages stipulated in such wage schedule is
43 guilty of a misdemeanor and upon conviction shall be punished for a
44 first offense by a fine of five hundred dollars or by imprisonment for
45 not more than thirty days or by both fine and imprisonment; for a second
46 offense by a fine of one thousand dollars, and in addition thereto the
47 contract on which the violation has occurred shall be forfeited; and no
48 such contractor shall be entitled to receive any sum, nor shall any
49 officer, agent or employee of the contracting public agency pay any such
50 sum or authorize its payment from the funds under his charge or control
51 to such contractor for work done upon the contract on which the contrac-
52 tor has been convicted of a second offense. If the contractor or
53 subcontractor is a corporation, any officer of such corporation who
54 knowingly permits the corporation to fail to make such payment shall
55 also be guilty of a misdemeanor and the criminal and civil penalties
56 herein shall attach to such officer upon conviction.
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1 § 12. Section 239 of the labor law, as added by chapter 777 of the
2 laws of 1971, subdivisions 1, 2, and 3 as amended by chapter 770 of the
3 laws of 1986, is amended to read as follows:
4 § 239. Provisions in contracts prohibiting discrimination on account
5 of race, creed, color, national origin, age or sex. Every contract for
6 service work or work involving the employment of covered airport workers
7 shall contain provisions by which the contractor agrees:
8 (1) that in the hiring of employees for the performance of work under
9 the contract or any subcontract thereunder within the territorial limits
10 of this state, no contractor, subcontractor, nor any person acting on
11 behalf of such contractor or subcontractor, shall by reason of race,
12 creed, color, national origin, age, sex or disability, discriminate
13 against any citizen of the state of New York who is qualified and avail-
14 able to perform the work to which the employment relates;
15 (2) that no contractor, subcontractor, nor any person on his behalf
16 shall, in any manner, discriminate against or intimidate any employee
17 hired for the performance of work under the contract on account of race,
18 creed, color, national origin, age, sex or disability;
19 (3) that there may be deducted from the amount payable to the contrac-
20 tor by the public agency under the contract for service work a penalty
21 of fifty dollars for each person for each day during which such person
22 was discriminated against or intimidated in violation of the provisions
23 of the contract;
24 (4) that the contract for service work may be cancelled or terminated
25 by the public agency, and all moneys due or to become due thereunder may
26 be forfeited for a second or any subsequent violation of the terms or
27 conditions of this section of the contract.
28 § 13. Section 239-a of the labor law, as added by chapter 777 of the
29 laws of 1971, is amended to read as follows:
30 § 239-a. Enforcement of article. 1. If the fiscal officer, as defined
31 herein, finds that any contractor on service work fails to comply with
32 or evades the provisions of this article, he shall present evidence of
33 such noncompliance or evasion to the public agency having charge of such
34 work for enforcement. Where such evidence indicates a noncompliance or
35 evasion on the part of a subcontractor, the contractor shall be respon-
36 sible for such noncompliance or evasion. It shall be the duty of the
37 public agency in charge of such service work to enforce the provisions
38 of this article.
39 2. If the fiscal officer, as defined herein, finds that any contractor
40 on work involving the employment of covered airport workers fails to
41 comply with or evades the provisions of this article, it shall be the
42 duty of the fiscal officer to enforce the provisions of this article.
43 § 14. If any provision of this article or the application thereof to
44 any person, employer, occupation or circumstance is held invalid, the
45 remainder of the article and the application of such provision to other
46 persons, employees, occupations, or circumstances shall not be affected
47 thereby.
48 § 15. This act shall take effect on January 1, 2021. Effective imme-
49 diately, the addition, amendment and/or repeal of any rule or regulation
50 necessary for the implementation of this act on its effective date are
51 authorized to be made and completed on or before such effective date.