Bill Text: NY S07434 | 2011-2012 | General Assembly | Introduced
Bill Title: Relates to prevailing wages for service workers; amends certain definitions, payroll filing requirements and penalties for violations thereof.
Spectrum: Partisan Bill (Democrat 8-0)
Status: (Introduced - Dead) 2012-05-16 - REFERRED TO LABOR [S07434 Detail]
Download: New_York-2011-S07434-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 7434 I N S E N A T E May 16, 2012 ___________ Introduced by Sen. SAVINO -- 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 prevailing wages for service workers THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. The article heading of article 9 of the labor law, as added 2 by chapter 777 of the laws of 1971, is amended to read as follows: 3 PREVAILING WAGE FOR [BUILDING] SERVICE EMPLOYEES 4 S 2. Subdivisions 1, 2, 3, 4, 6, 8, 9 and 10 of section 230 of the 5 labor law, as added by chapter 777 of the laws of 1971, subdivision 1 as 6 amended and subdivision 9 as added by chapter 542 of the laws of 1984, 7 subdivision 4 as amended by chapter 678 of the laws of 2007 and subdivi- 8 sion 10 as added by chapter 547 of the laws of 1998, are amended and a 9 new subdivision 15 is added to read as follows: 10 1. "[Building service] SERVICE employee" or "employee" means any 11 person performing JANITORIAL, OR SECURITY SERVICE WORK FOR A CONTRACTOR, 12 UNDER CONTRACT WITH A PUBLIC AGENCY WHICH IS IN EXCESS OF TWO THOUSAND 13 DOLLARS AND THE PRINCIPAL PURPOSE OF WHICH IS TO FURNISH SERVICES 14 THROUGH THE USE OF SERVICE EMPLOYEES, OR ANY OTHER PERSON PERFORMING 15 work in connection with the care or maintenance of an existing building, 16 or in connection with the transportation of office furniture or equip- 17 ment to or from such building, or in connection with the transportation 18 and delivery of fossil fuel to such building, for a contractor under a 19 contract with a public agency which is in excess of [one] TWO thousand 20 [five hundred] dollars and the principal purpose of which is to furnish 21 services through the use of [building] service employees. THE 22 PROVISIONS OF THIS ARTICLE SHALL NOT APPLY TO ANY EMPLOYEE DIRECTLY OR 23 INDIRECTLY PERFORMING WORK FOR OR ON BEHALF OF A BUSINESS IMPROVEMENT 24 DISTRICT UNLESS SUCH WORK WOULD HAVE BEEN SUBJECT TO THE REQUIREMENTS OF 25 THIS ARTICLE AS IN EFFECT ON JANUARY FIRST, TWO THOUSAND ELEVEN. THE 26 PRECEDING SENTENCE SHALL NOT BE CONSTRUED TO AFFECT ANY DETERMINATION 27 HEREAFTER BY THE FISCAL OFFICER OR A COURT OF COMPETENT JURISDICTION AS EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD10637-02-1 S. 7434 2 1 TO THE APPLICABILITY OR INAPPLICABILITY TO SUCH WORK OF SUCH REQUIRE- 2 MENTS. 3 "[Building service] SERVICE employee" or "employee" includes, but is 4 not limited, to, watchman, guard, doorman, building cleaner, porter, 5 handyman, janitor, gardener, groundskeeper, stationary fireman, elevator 6 operator and starter, window cleaner, and occupations relating to the 7 collection of garbage or refuse, and to the transportation of office 8 furniture and equipment, and to the transportation and delivery of 9 fossil fuel but does not include clerical, sales, professional, techni- 10 cian and related occupations. 11 "[Building service] SERVICE employee" or "employee" also does not 12 include any employee to whom the provisions of articles eight and 13 [eight-a] EIGHT-A of this chapter are applicable. 14 2. "[Building service] SERVICE work" [or "service work"] means work 15 performed by a [building] service employee, but does not include work 16 performed for a contractor under a contract for the furnishing of 17 services by radio, telephone, telegraph or cable companies[; and any 18 contract for public utility services, including electric light and 19 power, water, steam and gas] OR JANITORIAL OR SECURITY WORK PERFORMED ON 20 THE PREMISES OWNED OR OPERATED BY THE POWER AUTHORITY OF THE STATE OF 21 NEW YORK UNLESS SUCH PREMISES ARE JOINTLY OWNED OR OPERATED WITH ANY 22 NON-GOVERNMENTAL UTILITY OR SUBSTANTIALLY-OWNED OR AFFILIATED ENTITY OF 23 SUCH PUBLIC UTILITY AS DEFINED IN SUBDIVISION THREE OF THIS SECTION. 24 3. "Public agency" means the state, any of its political subdivisions, 25 a public benefit corporation, a public authority, INCLUDING A PUBLIC 26 AUTHORITY PROVIDING PUBLIC UTILITY SERVICES, or commission or special 27 purpose district board appointed pursuant to law, [and] a board of 28 education, AND ANY PUBLIC UTILITY THAT DISTRIBUTES ELECTRIC LIGHT OR 29 POWER, OR GAS OR STEAM SERVICES AT RETAIL RATES REGULATED BY THE PUBLIC 30 SERVICE COMMISSION PURSUANT TO A FRANCHISE GRANTED UNDER THE PROVISIONS 31 OF SECTION SIXTY-EIGHT OR EIGHTY-ONE OF THE PUBLIC SERVICE LAW, AND ANY 32 SUBSTANTIALLY-OWNED AFFILIATED ENTITY OF SUCH PUBLIC UTILITY. 33 4. "Contractor" means any employer who employs employees to perform 34 [building] service work under a contract with a public agency and shall 35 include any of the contractor's subcontractors. 36 6. "Prevailing wage" means the wage determined by the fiscal officer 37 to be prevailing for the various classes of [building] service employees 38 in the locality. In no event shall the basic hourly cash rate of pay be 39 less than the statutory minimum wage established by article nineteen of 40 this chapter, or, in a city with a local law requiring a higher minimum 41 wage on city contract work, less than the minimum wage specified in such 42 local law. 43 8. "Fiscal officer" means the [industrial] commissioner, except for 44 [building] service work performed by or on behalf of a city, in which 45 case "fiscal officer" means the comptroller or other analogous officer 46 of such city. 47 9. "Fossil fuel" shall mean coal, petroleum products and fuel gases. 48 "Coal" shall include bituminous coal, anthracite coal and lignite. "Fuel 49 gases" shall include but not be limited to methane, natural gas, lique- 50 fied natural gas and manufactured fuel gases. "Petroleum products" shall 51 include all products refined or rerefined from synthetic or crude oil or 52 oil extracted from other sources, including natural gas liquids. 53 [Provided that nothing in this subdivision shall affect the exclusion 54 for public utility services set forth in subdivision two of this 55 section.] S. 7434 3 1 10. "Substantially-owned affiliated entity" shall mean the parent 2 company of the PUBLIC UTILITY, contractor or subcontractor, any subsid- 3 iary of the PUBLIC UTILITY, contractor or subcontractor, or any entity 4 in which the parent of the PUBLIC UTILITY, contractor or subcontractor 5 owns more than fifty percent of the voting stock, or an entity in which 6 one or more of the top five shareholders of the PUBLIC UTILITY, contrac- 7 tor or subcontractor individually or collectively also owns a control- 8 ling share of the voting stock, or an entity which exhibits any other 9 indicia of control over the PUBLIC UTILITY, contractor or subcontractor 10 or over which the PUBLIC UTILITY, contractor or subcontractor exhibits 11 control, regardless of whether or not the controlling party or parties 12 have any identifiable or documented ownership interest. Such indicia 13 shall include: power or responsibility over employment decisions, access 14 to and/or use of the relevant entity's assets or equipment, power or 15 responsibility over contracts of the entity, responsibility for mainte- 16 nance or submission of certified payroll records, and influence over the 17 business decisions of the relevant entity. 18 15. "PERSON" SHALL MEAN A HUMAN BEING AND SHALL INCLUDE AN "ENTITY" AS 19 DEFINED IN THIS ARTICLE, INCLUDING, BUT NOT LIMITED TO A CONTRACTOR OR 20 SUBCONTRACTOR. 21 S 3. Subdivision 4 of section 230 of the labor law, as added by chap- 22 ter 777 of the laws of 1971, is amended to read as follows: 23 4. "Contractor" means any employer who employs employees to perform 24 [building] service work under a contract with a public agency, and shall 25 include any of his subcontractors. 26 S 4. Subdivisions 1, 3, 4 and 5 of section 231 of the labor law, as 27 added by chapter 777 of the laws of 1971 and subdivision 5 as amended by 28 chapter 678 of the laws of 2007, are amended to read as follows: 29 1. Every contractor shall pay a service employee under a contract for 30 [building] service work a wage of not less than the prevailing wage in 31 the locality for the craft, trade or occupation of the service employee. 32 3. Each contract for [building] service work shall contain as part of 33 the specifications thereof a schedule of the wages required to be paid 34 to the various classes of service employees on such work, and each such 35 contract shall further contain a provision obligating the contractor to 36 pay each employee on such work not less than the wage specified for his 37 craft, trade or occupation in such schedule. 38 4. The public agency, or appropriate officer or agent thereof, whose 39 responsibility it is to prepare or direct the preparation of the plans 40 and specifications for a contract for [building] service work, shall 41 ascertain from such plans and specifications the classifications of 42 employees to be employed on such work and shall file a list of such 43 classifications with the fiscal officer, together with a statement of 44 the work to be performed. The fiscal officer shall determine the crafts, 45 trades and occupations required for such work and shall make a determi- 46 nation of the wages required to be paid in the locality for each such 47 craft, trade or occupation. A schedule of such wages shall be annexed to 48 and form a part of the specifications for the contract prior to the time 49 of the advertisement for bids on such contract and shall constitute the 50 schedule of wages referred to in subdivision three of this section. 51 5. Upon the award of a contract for [building] service work by a 52 public agency other than a city, the contracting public agency shall 53 immediately furnish to the commissioner: (a) the name and address of the 54 contractor to whom the contract was awarded; (b) the date when the 55 contract was awarded; and (c) the approximate consideration stipulated 56 for in the contract. S. 7434 4 1 S 5. Subdivision 5 of section 231 of the labor law, as added by chap- 2 ter 777 of the laws of 1971, is amended to read as follows: 3 5. Upon the award of a contract for [building] service work by a 4 public agency other than a city, the contracting public agency shall 5 immediately furnish to the [industrial] commissioner: (a) the name and 6 address of the contractor to whom the contract was awarded; (b) the date 7 when the contract was awarded; and (c) the approximate consideration 8 stipulated for in the contract. 9 S 6. Paragraphs a and c of subdivision 2 and subdivision 7 of section 10 235 of the labor law, paragraph a of subdivision 2 and subdivision 7 as 11 amended and paragraph c of subdivision 2 as added by chapter 547 of the 12 laws of 1998, are amended and subdivision 2 is amended by adding a new 13 paragraph g to read as follows: 14 a. At the start of such investigation the fiscal officer may notify 15 the financial officer of the public agency interested who shall, at the 16 direction of the fiscal officer, forthwith withhold from any payment due 17 to the contractor executing the contract sufficient money to safeguard 18 the rights of the service employees and to cover the civil penalty that 19 may be assessed as provided herein, or, if there are insufficient moneys 20 still due or earned to the contractor or subcontractor to safeguard the 21 rights of the service employees and to cover the civil penalty that may 22 be assessed as provided herein, the financial officer of another civil 23 division which has entered or subsequently enters into a [building] 24 service work contract with the contractor or subcontractor, who shall 25 withhold from any payment due the contractor or subcontractor executing 26 any [building] service work, sufficient moneys to safeguard the rights 27 of the service employees and to cover the civil penalty that may be 28 assessed as provided herein. 29 c. The notice of withholding shall provide that the fiscal officer 30 intends to instruct the financial officer, not less than ten days 31 following service of the notice by mail, to withhold sufficient moneys 32 to safeguard the rights of the service employees and to cover the civil 33 penalty that may be assessed as provided herein, from any payment due 34 the notified party under any [building] service work contract pending 35 final determination. The notice of withholding shall provide that within 36 thirty days following the date of the notice of withholding the notified 37 party may, contest the withholding on the basis that the notified party 38 is not a partner or one of the five largest shareholders of the subcon- 39 tractor or contractor, an officer of the contractor or subcontractor who 40 knowingly participated in the violation of this article, a substantial- 41 ly-owned affiliated entity or successor. If the notified party fails to 42 contest the notice of withholding, or if the fiscal officer, after 43 reviewing the information provided by the notified party in such 44 contest, determines that the notified party is a partner or one of the 45 five largest shareholders, a substantially-owned affiliated entity, an 46 officer of the contractor or subcontractor who knowingly participated in 47 the violation of this article, or a successor, the fiscal officer may 48 instruct the financial officer to immediately withhold sufficient moneys 49 to safeguard the rights of the service employees and to cover the civil 50 penalty that may be assessed as provided herein from any payment due the 51 notified party under any [building] service work contract pending the 52 final determination. 53 G. THE FISCAL OFFICER MAY REQUIRE ANY PERSON OR CORPORATION PERFORMING 54 SUCH PUBLIC WORK TO FILE WITH THE FISCAL OFFICER WITHIN TEN DAYS OF 55 RECEIPT OF SAID REQUEST, PAYROLL RECORDS, SWORN TO AS TO THEIR VALIDITY 56 AND ACCURACY, REQUESTED BY THE FISCAL OFFICER, FOR SAID SERVICE WORK OR S. 7434 5 1 FOR ANY PUBLIC OR PRIVATE WORK PERFORMED BY SAID PERSON OR CORPORATION 2 DURING THE SAME PERIOD OF TIME AS SAID SERVICE WORK. IN THE EVENT SAID 3 PERSON OR CORPORATION FAILS TO PROVIDE THE REQUESTED INFORMATION WITHIN 4 THE ALLOTTED TEN DAYS, THE FISCAL OFFICER MAY, WITHIN FIFTEEN DAYS, 5 ORDER THE FINANCIAL OFFICER OF THE PUBLIC AGENCY TO IMMEDIATELY WITHHOLD 6 FROM PAYMENT TO SAID PERSON OR CORPORATION UP TO TWENTY-FIVE PERCENT OF 7 THE AMOUNT, NOT TO EXCEED FIVE HUNDRED THOUSAND DOLLARS, TO BE PAID TO 8 SAID PERSON OR CORPORATION UNDER THE TERMS OF THE CONTRACT PURSUANT TO 9 WHICH SAID SERVICE WORK IS BEING PERFORMED. SAID AMOUNT WITHHELD SHALL 10 BE IMMEDIATELY RELEASED UPON RECEIPT BY THE PUBLIC AGENCY OF A NOTICE 11 FROM THE FISCAL OFFICER INDICATING THAT THE REQUEST FOR RECORDS HAD BEEN 12 SATISFIED. 13 7. When, pursuant to the provisions of this section, two final orders 14 have been entered against a contractor, subcontractor, successor, or any 15 substantially-owned affiliated entity of the contractor or subcontrac- 16 tor, any of the partners if the contractor or subcontractor is a part- 17 nership, any of the five largest shareholders of the contractor or 18 subcontractor, any officer of the contractor or subcontractor who know- 19 ingly participated in the violation of this article within any consec- 20 utive six-year period determining that such contractor or subcontractor 21 and/or its successor, substantially-owned affiliated entity of the 22 contractor or subcontractor, any of the partners or any of the five 23 largest shareholders of the contractor or subcontractor, any officer of 24 the contractor or subcontractor who knowingly participated in the 25 violation of this article has willfully failed to pay the prevailing 26 wages in accordance with the provisions of this article, whether such 27 failures were concurrent or consecutive and whether or not such final 28 determinations concerning separate public [building] service WORK 29 contracts are rendered simultaneously, such contractor, subcontractor, 30 successor, and if the contractor, subcontractor, successor, or any 31 substantially-owned affiliated entity of the contractor or subcontrac- 32 tor, any of the partners if the contractor or subcontractor is a part- 33 nership, or any of the five largest shareholders of the contractor or 34 subcontractor, any officer of the contractor or subcontractor who know- 35 ingly participated in the violation of this article, or any successor is 36 a corporation, any officer of such corporation who knowingly partic- 37 ipated in such failure, shall be ineligible to submit a bid on or be 38 awarded any public [building] service work for a period of five years 39 from the date of the second order, provided, however, that where any 40 such final order involves the falsification of payroll records or the 41 kickback of wages, the contractor, subcontractor, successor, substan- 42 tially-owned affiliated entity of the contractor or subcontractor, any 43 partner if the contractor or subcontractor is a partnership or any of 44 the five largest shareholders of the contractor or subcontractor, any 45 officer of the contractor or subcontractor who knowingly participated in 46 the violation of this article shall be ineligible to submit a bid on or 47 be awarded any public [building] service WORK contract or subcontract 48 with the state, any municipal corporation or public body for a period of 49 five years from the date of the first final order. Nothing in this 50 subdivision shall be construed as affecting any provision of any other 51 law or regulation relating to the awarding of public contracts. 52 S 7. Subdivision 2 of section 237 of the labor law, as amended by 53 chapter 698 of the laws of 1988, is amended to read as follows: 54 2. A. Before payment is made by or on behalf of a public agency of any 55 sums due on account of a contract for service work, it shall be the duty 56 of the comptroller of the state or the financial officer of such public S. 7434 6 1 agency or other officer or person charged with the custody and disburse- 2 ment of the state or corporate funds applicable to the contract under 3 and pursuant to which payment is made, to require the contractor to file 4 a statement in writing in form satisfactory to such officer certifying 5 to the amounts then due and owing from such contractor filing such 6 statement to or on behalf of any and all service employees for daily or 7 weekly wages on account of labor performed upon the work under the 8 contract, setting forth therein the names of the persons whose wages are 9 unpaid and the amount due to or on behalf of each respectively, which 10 statement so to be filed shall be verified by the oath of the contractor 11 that he or she has read such statement subscribed by him or her and 12 knows the contents thereof, and that the same is true of his or her own 13 knowledge. THE CONTRACTOR SHALL FILE THESE PAYROLL RECORDS VERIFIED 14 UNDER OATH WITHIN NINETY DAYS AFTER ANY LABOR IS PERFORMED UPON THE WORK 15 UNDER CONTRACT, OR SUCH OTHER TIME AS THE FISCAL OFFICER MAY AUTHORIZE. 16 ANY PERSON WHO WILLFULLY FAILS TO FILE SUCH PAYROLL RECORDS WITH THE 17 PUBLIC AGENCY SHALL BE GUILTY OF A CLASS E FELONY. 18 B. EACH PUBLIC AGENCY SHALL DESIGNATE IN WRITING AN INDIVIDUAL 19 EMPLOYED BY SUCH DEPARTMENT RESPONSIBLE FOR THE RECEIPT, COLLECTION AND 20 REVIEW FOR FACIAL VALIDITY OF A CONTRACTOR'S CERTIFIED PAYROLL STATE- 21 MENT, AS SET FORTH IN THIS SUBDIVISION, BEFORE PAYMENT IS MADE. SAID 22 DESIGNATION SHALL BE FILED WITH THE FISCAL OFFICER AND POSTED IN A 23 CONSPICUOUS LOCATION AT THE WORK SITE. IF THE DESIGNATED INDIVIDUAL 24 CANNOT PERFORM THE RECEIPT, COLLECTION AND REVIEW OF CERTIFIED PAYROLLS 25 DUTIES AS INDICATED ABOVE, FOR ANY REASON, INCLUDING BUT NOT LIMITED TO 26 REASSIGNMENT, PROMOTION OR SEPARATION FROM EMPLOYMENT, THE PUBLIC AGENCY 27 MUST IMMEDIATELY DESIGNATE ANOTHER INDIVIDUAL EMPLOYED BY SUCH AGENCY TO 28 FULFILL SUCH RESPONSIBILITIES. IN THE EVENT THAT A PUBLIC AGENCY FAILS 29 TO NAME AN INDIVIDUAL RESPONSIBLE FOR THE RECEIPT, COLLECTION AND REVIEW 30 FOR FACIAL VALIDITY OF CONTRACTORS' CERTIFIED PAYROLLS, THEN THE INDI- 31 VIDUAL SO RESPONSIBLE SHALL BE THE INDIVIDUAL WHO IS THE CHIEF POLICY 32 MAKING OFFICER OF SUCH PUBLIC AGENCY. 33 S 8. Subdivision 2 of section 238 of the labor law, as added by chap- 34 ter 777 of the laws of 1971, is amended to read as follows: 35 2. When a contract for service work contains as part thereof a sched- 36 ule of wages as provided for in this article, any [contractor] PERSON 37 who, after entering into such contract[, and any subcontractor of such 38 contractor who] WILLFULLY fails to pay to any service employee the wages 39 stipulated in such wage schedule [is guilty of a misdemeanor and upon 40 conviction shall be punished for a first offense by a fine of five 41 hundred dollars or by imprisonment for not more than thirty days or by 42 both fine and imprisonment; for a second offense by a fine of one thou- 43 sand dollars, and in] SHALL BE GUILTY OF A MISDEMEANOR FOR THE FIRST 44 OFFENSE AND UPON CONVICTION THEREFOR SHALL BE FINED TWO THOUSAND FIVE 45 HUNDRED DOLLARS OR TWICE THE AMOUNT OF UNDERPAYMENT, WHICHEVER IS GREAT- 46 ER OR IMPRISONED FOR NOT MORE THAN ONE YEAR, OR BOTH. IF A PERSON STANDS 47 CONVICTED OF A VIOLATION OF THIS SECTION AND WITHIN THE PREVIOUS SIX 48 YEARS HAS BEEN CONVICTED ONE OR MORE TIMES OF A VIOLATION OF THIS 49 SECTION IN SEPARATE TRANSACTIONS, THEN SUCH PERSON SHALL BE GUILTY OF A 50 CLASS E FELONY UPON CONVICTION FOR SUCH SUBSEQUENT OFFENSE, AND SHALL BE 51 FINED FIVE THOUSAND DOLLARS OR TRIPLE THE AMOUNT OF UNDERPAYMENT, WHICH- 52 EVER IS GREATER OR IMPRISONED AS AUTHORIZED BY SECTION 70.00 OF THE 53 PENAL LAW OR PUNISHED BY BOTH SUCH FINE AND IMPRISONMENT, FOR EACH SUCH 54 OFFENSE. IN addition [thereto] TO ANY OTHER FINE OR PENALTY THAT MAY BE 55 IMPOSED FOR SUCH FELONY OFFENSE, the contract on which the violation has 56 occurred shall be forfeited; and no such contractor shall be entitled to S. 7434 7 1 receive any sum, nor shall any officer, agent or employee of the 2 contracting public agency pay any such sum or authorize its payment from 3 the funds under his OR HER charge or control to such contractor for work 4 done upon the contract on which the contractor has been convicted of a 5 second offense. If the contractor or subcontractor is a corporation, any 6 officer of such corporation who knowingly permits the corporation to 7 fail to make such payment shall also be guilty of [a misdemeanor] THE 8 OFFENSE DEFINED IN THIS SUBDIVISION and the criminal and civil penalties 9 [herein] OF THIS SUBDIVISION shall attach to such officer upon 10 conviction. 11 S 9. Severability. If any clause, sentence, paragraph, section or part 12 of this act be adjudged by any court of competent jurisdiction to be 13 invalid and after exhaustion of all further judicial review, the judg- 14 ment shall not affect, impair or invalidate the remainder thereof, but 15 shall be confined in its operation to the clause, sentence, paragraph, 16 section or part of this act directly involved in the controversy in 17 which the judgment shall have been rendered. 18 S 10. This act shall take effect on the ninetieth day after it shall 19 have become a law and shall apply to all contracts or other agreements 20 entered into, renewed or extended on or after such date; provided, 21 however, that: 22 (a) the amendments to subdivision 4 of section 230 of the labor law 23 made by section two of this act shall be subject to the expiration and 24 reversion of such subdivision pursuant to section 5 of chapter 678 of 25 the laws of 2007, as amended, when upon such date the provisions of 26 section three of this act shall take effect; and 27 (b) the amendments to subdivision 5 of section 231 of the labor law 28 made by section four of this act shall be subject to the expiration and 29 reversion of such subdivision pursuant to section 5 of chapter 678 of 30 the laws of 2007, as amended, when upon such date the provisions of 31 section five of this act shall take effect.