STATE OF NEW YORK
________________________________________________________________________
5679--A
2019-2020 Regular Sessions
IN SENATE
May 10, 2019
___________
Introduced by Sens. SAVINO, SKOUFIS -- read twice and ordered printed,
and when printed to be committed to the Committee on Labor -- commit-
tee discharged, bill amended, ordered reprinted as amended and recom-
mitted to said committee
AN ACT to amend the labor law, in relation to additional information
provided to employees on public work contracts
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (e) of subdivision 3 of section 220 of the labor
2 law, as amended by chapter 7 of the laws of 2008, is amended to read as
3 follows:
4 (e) The commissioner shall ensure that all supplements due under this
5 article shall be paid to or on behalf of an employee. (i) The commis-
6 sioner shall require proof that the pension plan for which any supple-
7 ment has been paid is qualified as a bona fide plan by the United States
8 internal revenue service. Acceptable proof shall be shown by submission
9 of a determination letter issued by the United States internal revenue
10 service. (ii) The commissioner shall also require any contractor or
11 subcontractor who provides any supplement which is part of a fund, plan
12 or program to furnish to the commissioner proof that the supplement is
13 provided through a fund, plan or program and the amount contributed on
14 the employees' behalf to such fund, plan or program.
15 § 2. Subparagraphs (ii) and (iii) of paragraph a of subdivision 3-a of
16 section 220 of the labor law, subparagraph (ii) as separately amended by
17 chapters 7 and 63 of the laws of 2008 and subparagraph (iii) as amended
18 by chapter 8 of the laws of 2008, are amended to read as follows:
19 (ii) The contractor and every sub-contractor on public works contracts
20 shall post in a prominent and accessible place on the site where the
21 work is performed a legible statement of all wage rates and supplements
22 as specified in the contract to be paid or provided, as the case may be,
23 for the various classes of mechanics, workers, or laborers employed on
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06045-05-9
S. 5679--A 2
1 the work. Such posted statement shall be written in plain English and
2 titled, in lettering no smaller than two inches in height and two inches
3 in width, with the phrase "Prevailing Rate of Wages". Such posted state-
4 ment shall be constructed of materials capable of withstanding adverse
5 weather conditions. The contractor and every sub-contractor shall notify
6 all laborers, workers or mechanics in their employ in writing of the
7 prevailing rate of wage and supplements for their particular job classi-
8 fication. Such notification shall be given to every laborer, worker or
9 mechanic upon hire, on their first pay stub and with every pay stub
10 thereafter, and shall set forth the amounts paid per hour for each
11 supplement provided for his or her particular job classification in
12 accordance with the schedules determined by the fiscal officer. Such
13 notification shall be provided in English and in the language identified
14 by such laborer, worker, or mechanic as his or her primary language. At
15 the beginning of performance of every public works contract, and with
16 the first paycheck after July first of each year, the contractor and
17 every sub-contractor shall notify all laborers, workers, and mechanics
18 in their employ in writing, in English and in the language identified by
19 each laborer, worker, and mechanic as his or her primary language, in
20 accordance with such form as is prescribed by the fiscal officer, of the
21 telephone number and address for the fiscal officer. The notice shall
22 also inform each laborer, worker, or mechanic of his or her right to
23 contact the fiscal officer or some other representative if, at any time
24 while working for the public works contractor or sub-contractor, he or
25 she does not receive the proper prevailing rate of wages or supplements
26 for his or her particular job classification that he or she is entitled
27 to receive under the contract. If after investigation the fiscal officer
28 finds that a contractor or sub-contractor has (1) failed to post or
29 provide any notice required under this subdivision, including having
30 failed to provide any such notice in the language identified by any
31 laborer, worker, or mechanic as his or her primary language, (2) failed
32 to set forth the prevailing wage or the breakdown of supplements on the
33 pay stub, (3) [wilfully] willfully posted the incorrect prevailing wage,
34 or (4) [wilfully] willfully set forth the incorrect prevailing wage or
35 the amounts paid per hour for each supplement on the pay stub, the
36 fiscal officer[,] shall, by an order which shall describe particularly
37 the nature of the alleged violation, assess the contractor or sub-con-
38 tractor a civil penalty of not more than fifty dollars upon the first
39 finding of a violation, two hundred fifty dollars upon the second find-
40 ing of a violation, and five hundred dollars for each subsequent
41 violation. In assessing the amount of the penalty, the fiscal officer
42 shall give due consideration to the size of the employer's business, the
43 good faith of the employer, and the gravity of the violation.
44 The fiscal officer shall prepare templates that comply with the
45 notification requirements of this subparagraph. Each such template shall
46 be dual-language, including English and one additional language. The
47 fiscal officer shall determine, in his or her discretion, which
48 languages to provide in addition to English, based on the size of the
49 New York state population that speaks each language and any other factor
50 that the fiscal officer shall deem relevant. All such templates shall be
51 posted on the fiscal officer's website and made available for download-
52 ing by contractors and subcontractors. When any laborer, worker, or
53 mechanic identifies his or her primary language and a template is not
54 made available by the fiscal officer in that language, the contractor or
55 subcontractor shall comply with this subparagraph by providing such
56 laborer, worker, or mechanic an English-language notice or acknowledg-
S. 5679--A 3
1 ment. A contractor or subcontractor shall not be penalized for errors or
2 omissions in the non-English portions of any notice provided by the
3 fiscal officer. The fiscal officer shall have discretion to waive or
4 alter the notification requirements of this subparagraph for temporary
5 help firms as defined in section nine hundred sixteen of this chapter.
6 (iii) The contractor and every sub-contractor shall keep original
7 payrolls or transcripts thereof, subscribed and sworn to or affirmed by
8 him or her as true under the penalties of perjury, setting forth the
9 names and addresses and showing for each worker, laborer, or mechanic
10 the hours and days worked, the occupations worked, the hourly wage rates
11 paid and the supplements paid or provided. Such payrolls or transcripts
12 thereof shall also set forth the amounts paid per hour for each supple-
13 ment provided in accordance with the schedules determined by the fiscal
14 officer. Where the contractor or sub-contractor maintains no regular
15 place of business in New York state and where the amount of the contract
16 is in excess of twenty-five thousand dollars such payrolls shall be kept
17 on the site of the work. All other contractors or sub-contractors shall
18 produce within five days on the site of the work and upon formal order
19 of the commissioner or his or her designated representative such
20 original payrolls or transcripts thereof, subscribed and sworn to or
21 affirmed by him or her as true under the penalties of perjury, as may be
22 deemed necessary to adequately enforce the provisions of this article.
23 Every contractor, and sub-contractor, shall submit to the department of
24 jurisdiction within thirty days after issuance of its first payroll, and
25 every thirty days thereafter, a transcript of the original payroll
26 record, as provided by this article, subscribed and sworn to or affirmed
27 as true under the penalties of perjury. Every contractor and subcon-
28 tractor shall submit to the commissioner, and to the fiscal officer,
29 when the fiscal officer is a city comptroller or other analogous offi-
30 cer, within thirty days of its first payroll, and annually thereafter, a
31 transcript of the original payroll record, subscribed and sworn to or
32 affirmed as true under the penalties of perjury, including, documenta-
33 tion of each fund, plan, or program for which any supplement has been
34 paid or provided. Such transcripts and additional information shall be
35 provided on a form promulgated by the department. Any person who
36 [wilfully] willfully fails to file such payroll records with the depart-
37 ment of jurisdiction, commissioner, or the fiscal officer shall be guil-
38 ty of a class E felony. In addition, any person who [wilfully] willfully
39 fails to file such payroll records within the time specified in this
40 subparagraph shall be subject to a civil penalty of up to one thousand
41 dollars per day.
42 § 3. Subdivision 6 of section 220 of the labor law, as amended by
43 chapter 230 of the laws of 1984, is amended to read as follows:
44 6. The fiscal officer[,] may, and on the written request of any inter-
45 ested person shall, require any person or corporation performing such
46 public work to file with such fiscal officer schedules of the supple-
47 ments to be provided and wages to be paid to such laborers, workmen or
48 mechanics, including information regarding the amounts to be paid per
49 hour for each supplement provided for each particular job classifica-
50 tion. The fiscal officer may, and on the written request of any inter-
51 ested party shall, require and furnish proof of any supplements provided
52 or amounts paid to or on behalf of laborers, workers, or mechanics in
53 satisfaction of the obligation to provide supplements under this
54 section. Any such person or corporation shall, within ten days after the
55 receipt of written notice of such requirement, file with the fiscal
56 officer such schedules of wages and supplements. An employer may contest
S. 5679--A 4
1 a determination by the fiscal officer under paragraphs a and c of subdi-
2 vision five of this section. The employer must allege and prove by
3 competent evidence, that the actual percentage of workers, laborers or
4 mechanics is below the required thirty per centum and during the penden-
5 cy of any such contest and until final determination thereof, the work
6 in question shall proceed under the rate established by the fiscal offi-
7 cer.
8 § 4. This act shall take effect on the one hundred eightieth day after
9 it shall have become a law and shall only apply to public work contracts
10 entered into on or after such effective date.
