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S01947 Summary:

Amd §220, add §224-a, Lab L
Relates to hours, wages and supplements in contracts for public work.
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S01947 Actions:

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S01947 Text:

                STATE OF NEW YORK
                               2019-2020 Regular Sessions
                    IN SENATE
                                    January 17, 2019
        Introduced  by  Sen.  RAMOS  -- read twice and ordered printed, and when
          printed to be committed to the Committee on Labor
        AN ACT to amend the labor law, in relation to hours, wages  and  supple-
          ments in contracts for public work
          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]  Every  contract  [to  which  the state or a public benefit
     4  corporation or a municipal corporation or a commission appointed  pursu-
     5  ant  to law is a party, and any contract for public work entered into by
     6  a third party acting in place of, on behalf of and for  the  benefit  of
     7  such  public  entity  pursuant  to  any lease, permit or other agreement
     8  between such third party and the public entity, and  which  may  involve
     9  the  employment of laborers, workers or mechanics] for public work shall
    10  contain a stipulation that no laborer, worker or mechanic in the  employ
    11  of the contractor, subcontractor or other person doing or contracting to
    12  do the whole or a part of the work contemplated by the contract shall be
    13  permitted  or required to work more than eight hours in any one calendar
    14  day or more than five days in any one week except in cases  of  extraor-
    15  dinary emergency including fire, flood or danger to life or property. No
    16  such  person  shall  be  so employed more than eight hours in any day or
    17  more than five days in any one week except in such  emergency.  Extraor-
    18  dinary  emergency  within the meaning of this section shall be deemed to
    19  include situations in which sufficient laborers, workers  and  mechanics
    20  cannot  be employed to carry on public work expeditiously as a result of
    21  such restrictions upon the number of hours and days  of  labor  and  the
    22  immediate  commencement or prosecution or completion without undue delay
    23  of the public work is necessary in the judgment of the commissioner  for
    24  the preservation of the contract site and for the protection of the life
    25  and  limb  of  the  persons  using the same. Upon the application of any
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 1947                             2
     1  person interested, the commissioner shall make  a  determination  as  to
     2  whether  or  not  on any public project or on all public projects in any
     3  area of this state, sufficient laborers, workers and mechanics of any or
     4  all  classifications  can  be employed to carry on work expeditiously if
     5  their labor is restricted to eight hours per day and five days per week,
     6  and in the event that the commissioner determines  that  there  are  not
     7  sufficient workers, laborers and mechanics of any or all classifications
     8  which may be employed to carry on such work expeditiously if their labor
     9  is  restricted  to  eight  hours per day and five days per week, and the
    10  immediate commencement or prosecution or completion without undue  delay
    11  of  the public work is necessary in the judgment of the commissioner for
    12  the preservation of the contract site and for the protection of the life
    13  and limb of the persons using the same, the commissioner shall  grant  a
    14  dispensation  permitting  all  laborers,  workers  and mechanics, or any
    15  classification of such laborers, workers and  mechanics,  to  work  such
    16  additional  hours  or  days  per  week on such public project or in such
    17  areas the commissioner shall determine. Whenever such a dispensation  is
    18  granted,  all  work  in  excess of eight hours per day and five days per
    19  week shall be considered overtime work, and the  laborers,  workers  and
    20  mechanics performing such work shall be paid a premium wage commensurate
    21  with  the  premium  wages  prevailing  in  the area in which the work is
    22  performed. No such dispensation shall be effective with respect  to  any
    23  public  work unless and until the department of jurisdiction, as defined
    24  in this section, certifies to the commissioner that such public work  is
    25  of  an  important  nature  and that a delay in carrying it to completion
    26  would result in serious disadvantage to the public.  Time  lost  in  any
    27  week   because   of  inclement  weather  by  employees  engaged  in  the
    28  construction, reconstruction and maintenance of highways outside of  the
    29  limits of cities and villages may be made up during that week and/or the
    30  succeeding three weeks.
    31    §  2.  Subdivision  5  of  section  220 of the labor law is amended by
    32  adding four new paragraphs m, n, o and p to read as follows:
    33    m. For the purposes of this article, "public work" means  any  of  the
    34  following:
    35    (i) Construction paid for in whole or in part out of public funds;
    36    (ii)  Construction  work  performed under private contract when all of
    37  the following conditions exist:
    38    (A) The construction contract is between private parties;
    39    (B) The property subject to the  construction  contract  is  privately
    40  owned,  but upon completion of the construction work, any portion of the
    41  property is leased or will be leased to the state or any public  entity,
    42  and one of the following conditions exist:
    43    (1)  The  public entity entered into or bargained for the lease agree-
    44  ment prior to the construction contract; or
    45    (2) The construction work is performed according to plans,  specifica-
    46  tions,  or criteria furnished by the public entity, and the lease agree-
    47  ment between the lessor and public entity, as lessee,  is  entered  into
    48  during,  or  upon  completion  of,  the construction work, or within six
    49  months following completion of the construction work; or
    50    (iii) Construction work performed on property owned by a public entity
    51  in whole or in part or will be owned or maintained by a public entity in
    52  whole or in part upon completion of the project.
    53    (iv) For the purposes of this article, "public work"  shall  not  mean
    54  any of the following:
    55    (A) Construction work on one or two family dwellings where the proper-
    56  ty is the owner's primary residence or construction work done on proper-

        S. 1947                             3
     1  ty  where  the  owner  of  the  property owns no more than four dwelling
     2  units;
     3    (B)  Construction work performed under a contract with a non-profit as
     4  defined in section one hundred two of the not-for-profit corporation law
     5  where the value of the public funds provided to the non-profit  for  the
     6  project is less than one hundred thousand dollars and the non-profit has
     7  gross annual revenue and support less than one million dollars; or
     8    (C)  Construction  work performed on a multiple dwelling where no less
     9  than seventy-five percent of the residential units  are  affordable  for
    10  households  up  to sixty percent of the area median income, adjusted for
    11  family size, as calculated by the United States  department  of  housing
    12  and urban development, provided however, that any construction performed
    13  on  non-residential space in connection with a multiple dwelling project
    14  shall be considered public work if it meets any of the criteria in  this
    15  paragraph.  Further, any construction work performed on a project eligi-
    16  ble for benefits under section four hundred  twenty-one-a  of  the  real
    17  property tax law shall not be considered public work for the purposes of
    18  this article.
    19    n. "Paid for in whole or in part out of public funds" means all of the
    20  following:
    21    (i)  The  payment  of  money or the equivalent of money, including the
    22  issuance of bonds and grants, by the state or  a  public  entity,  or  a
    23  third  party  acting  on  behalf  of and for the benefit of the state or
    24  public entity, directly to or on behalf of the public works  contractor,
    25  subcontractor, or developer.
    26    (ii) Performance of construction work by the state or any public enti-
    27  ty in the execution of the project.
    28    (iii)  Transfer  by  the state or a public entity of an asset of value
    29  for less than fair market value.
    30    (iv) Fees, costs, rents, insurance or bond premiums,  loans,  interest
    31  rates,  taxes,  or  other obligations that would normally be required in
    32  the execution of the project, that are paid, reduced,  charged  at  less
    33  than fair market value, waived, or forgiven by the state or public enti-
    34  ty.
    35    (v) Money loaned by the state or public entity that is to be repaid on
    36  a contingent basis.
    37    (vi)  Credits  that  are applied by the state or public entity against
    38  repayment obligations to the state or public entity.
    39    o.  "Public entity" includes, but is not  limited  to,  the  state,  a
    40  local development corporation as defined in subdivision eight of section
    41  eighteen  hundred  one of the public authorities law or section fourteen
    42  hundred eleven of the not-for-profit corporation law,  municipal  corpo-
    43  ration  as  defined  in  section  one  hundred nineteen-n of the general
    44  municipal law, industrial development agencies formed pursuant to  arti-
    45  cle  eighteen-A  of  the general municipal law or industrial development
    46  authorities formed pursuant to article eight of the  public  authorities
    47  law,  educational corporation established under article fifty-six of the
    48  education law, commission appointed pursuant to law, as well  as  state,
    49  local and interstate and international authorities as defined in section
    50  two  of  the public authorities law; and shall include any trust created
    51  by any such entities.
    52    p. (i) "Construction" includes, but is  not  limited  to,  demolition,
    53  reconstruction,  excavation, rehabilitation, repair, installation, reno-
    54  vation, alteration, and custom fabrication. "Construction" also includes
    55  work  preformed  during  the  design  and  preconstruction   phases   of
    56  construction,  including but not limited to, inspection and land survey-

        S. 1947                             4
     1  ing work and work  performed  during  the  post-construction  phases  of
     2  construction,  including,  but  not  limited to, all cleanup work at the
     3  jobsite.  "Construction" also includes the delivery to and hauling  from
     4  the  jobsite  of  aggregate supply construction materials, such as sand,
     5  gravel, stone, dirt, fill, as well as any necessary return hauls, wheth-
     6  er empty or loaded.
     7    (ii) For the purposes of this article, "custom fabrication" means  the
     8  fabrication  and  all drafting related to the fabrication of all masonry
     9  panels, woodwork, cases, cabinets, or counters, and the  fabrication  of
    10  plumbing,  heating,  cooling,  ventilation, or exhaust duct systems, and
    11  mechanical insulation solely and specifically  designed  and  engineered
    12  for  installation in the construction, repair, or renovation of a build-
    13  ing, regardless of where the custom fabrication is performed. The appli-
    14  cable prevailing wage for any off-site custom fabrication work shall  be
    15  the on-site prevailing wage for the public work site.
    16    § 3. The labor law is amended by adding a new section 224-a to read as
    17  follows:
    18    §  224-a. Stop-work orders.  Where a complaint is received pursuant to
    19  this article, or where the fiscal officer upon his or her  own  investi-
    20  gation,  finds  cause to believe that any person, in connection with the
    21  performance of any contract for public work, has substantially and mate-
    22  rially failed to comply with or intentionally evaded the  provisions  of
    23  this  article, the commissioner may notify such person in writing of his
    24  or her intention to issue a stop-work order. Such notice  shall  (i)  be
    25  served  in  a  manner consistent with section three hundred eight of the
    26  civil practice law and rules; (ii) notify such  person  of  his  or  her
    27  right  to  a  hearing;  and (iii) state the factual basis upon which the
    28  commissioner has based his or her decision to issue a  stop-work  order.
    29  Any  documents, reports, or information that form a basis for such deci-
    30  sion shall be provided to such person within a  reasonable  time  before
    31  the hearing. Such hearing shall be expeditiously conducted.
    32    Following  the  hearing, if the commissioner issues a stop-work order,
    33  it shall be served by regular mail, and a second copy may be  served  by
    34  telefacsimile or by electronic mail, with service effective upon receipt
    35  of  any  of  such  order. Such stop-work order shall also be served with
    36  regard to a worksite by posting a copy of such order  in  a  conspicuous
    37  location  at  the  worksite.  The order shall remain in effect until the
    38  commissioner directs that the stop-work order be removed, upon  a  final
    39  determination  on the complaint or where such failure to comply or evade
    40  has been deemed corrected. If the person  against  whom  such  order  is
    41  issued  shall  within  thirty days after issuance of the stop-work order
    42  makes an application in affidavit form for a redetermination  review  of
    43  such  order  the  commissioner  shall  make a decision in writing on the
    44  issues raised in such application. The commissioner may direct a  condi-
    45  tional  release  from  a stop-work order upon a finding that such person
    46  has taken meaningful and good faith steps to comply with the  provisions
    47  of this article.
    48    § 4. This act shall take effect immediately.
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