Bill Text: NY A08142 | 2019-2020 | General Assembly | Amended
Bill Title: Relates to minimum wage rates for covered airport workers.
Spectrum: Partisan Bill (Democrat 63-0)
Status: (Passed) 2020-12-31 - APPROVAL MEMO.76 [A08142 Detail]
Download: New_York-2019-A08142-Amended.html
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. LBD13101-11-0A. 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 meanA. 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 suchA. 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:A. 8142--E 5 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.A. 8142--E 6 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.
