Bill Text: NY A09000 | 2019-2020 | General Assembly | Introduced

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Bill Title: Provides additional information to employees on public work contracts.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2020-04-17 - SIGNED CHAP.86 [A09000 Detail]

Download: New_York-2019-A09000-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          9000

                   IN ASSEMBLY

                                    January 10, 2020
                                       ___________

        Introduced  by M. of A. WOERNER -- read once and referred to the Commit-
          tee on Labor

        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 (a) of subdivision 1 and subdivisions 3 and 4  of
     2  section  195 of the labor law, paragraph (a) of subdivision 1 as amended
     3  by chapter 537 of the laws of 2014, and subdivisions 3 and 4 as  amended
     4  by chapter 564 of the laws of 2010, are amended to read as follows:
     5    (a)  provide  his  or  her employees, in writing in English and in the
     6  language identified by each employee as the  primary  language  of  such
     7  employee,  at  the  time  of  hiring,  a notice containing the following
     8  information: the rate or rates of pay and basis thereof, whether paid by
     9  the hour, shift, day, week, salary, piece, commission, or other;  allow-
    10  ances, if any, claimed as part of the minimum wage, including tip, meal,
    11  or  lodging  allowances; prevailing wage supplements, if any, claimed as
    12  part of any prevailing wage or similar requirement pursuant  to  article
    13  eight of this chapter; the regular pay day designated by the employer in
    14  accordance with section one hundred ninety-one of this article; the name
    15  of the employer; any "doing business as" names used by the employer; the
    16  physical  address  of  the  employer's main office or principal place of
    17  business, and a mailing address if different; the  telephone  number  of
    18  the  employer;  plus  such  other  information as the commissioner deems
    19  material and necessary.   Where such  prevailing  wage  supplements  are
    20  claimed, the notice shall identify, for each type of supplement claimed:
    21  (i) the hourly rate claimed; (ii) the type of supplement, including when
    22  applicable,  but  not limited to, pension or healthcare; (iii) the names
    23  and addresses of the person or entity  providing  such  supplement;  and
    24  (iv)  the agreement, if any, requiring or providing for such supplement,
    25  together with information on how copies of such agreements or  summaries
    26  thereof  may be obtained. Each time the employer provides such notice to
    27  an employee, the employer shall obtain from the employee  a  signed  and
    28  dated written acknowledgement, in English and in the primary language of

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06045-06-0
        A. 9000                             2

     1  the  employee,  of  receipt  of  this  notice,  which the employer shall
     2  preserve and maintain for six years. Such acknowledgement shall  include
     3  an  affirmation  by the employee that the employee accurately identified
     4  his  or  her  primary  language  to  the  employer,  and that the notice
     5  provided by the employer to such employee pursuant to  this  subdivision
     6  was  in  the language so identified or otherwise complied with paragraph
     7  (c) of this subdivision, and shall conform to  any  additional  require-
     8  ments  established  by the commissioner with regard to content and form.
     9  For all employees who are  not  exempt  from  overtime  compensation  as
    10  established  in  the  commissioner's  minimum  wage  orders or otherwise
    11  provided by New York state law or regulation, the notice must state  the
    12  regular hourly rate and overtime rate of pay;
    13    3. furnish each employee with a statement with every payment of wages,
    14  listing  the  following:  the  dates  of work covered by that payment of
    15  wages; name of employee; name of employer; address and phone  number  of
    16  employer;  rate  or  rates of pay and basis thereof, whether paid by the
    17  hour, shift, day, week,  salary,  piece,  commission,  or  other;  gross
    18  wages;  deductions;  allowances,  if any, claimed as part of the minimum
    19  wage; prevailing wage supplements,  if  any,  claimed  as  part  of  any
    20  prevailing wage or similar requirement pursuant to article eight of this
    21  chapter;  and  net  wages.  Where  such  prevailing wage supplements are
    22  claimed, the statement shall either:  (i)  identify  the  type  of  each
    23  supplement  claimed and the hourly rate for each; or (ii) be accompanied
    24  by a copy of the applicable notice required under subdivisions  one  and
    25  two  of this section. For all employees who are not exempt from overtime
    26  compensation as established in the commissioner's minimum wage orders or
    27  otherwise provided by New York state law or  regulation,  the  statement
    28  shall include the regular hourly rate or rates of pay; the overtime rate
    29  or  rates  of pay; the number of regular hours worked, and the number of
    30  overtime hours worked. For all employees paid a piece rate,  the  state-
    31  ment  shall include the applicable piece rate or rates of pay and number
    32  of pieces completed at each piece rate. Upon the request of an employee,
    33  an employer shall furnish an explanation in writing of  how  such  wages
    34  were computed;
    35    4.  establish,  maintain  and  preserve  for  not  less than six years
    36  contemporaneous, true, and accurate payroll  records  showing  for  each
    37  week  worked the hours worked; the rate or rates of pay and basis there-
    38  of, whether paid by the hour, shift, day, week, salary,  piece,  commis-
    39  sion,  or other; gross wages; deductions; allowances, if any, claimed as
    40  part of the minimum wage; prevailing wage supplements, if  any,  claimed
    41  as  part of any prevailing wage or similar requirement pursuant to arti-
    42  cle eight of this chapter; and net wages for each employee.  Where  such
    43  prevailing  wage  supplements  are  claimed,  the  payroll records shall
    44  include copies of all notices required by subdivisions one  and  two  of
    45  this section. For all employees who are not exempt from overtime compen-
    46  sation  as  established  in  the  commissioner's  minimum wage orders or
    47  otherwise provided by New York state  law  or  regulation,  the  payroll
    48  records shall include the regular hourly rate or rates of pay, the over-
    49  time  rate  or rates of pay, the number of regular hours worked, and the
    50  number of overtime hours worked. For all employees paid  a  piece  rate,
    51  the  payroll records shall include the applicable piece rate or rates of
    52  pay and number of pieces completed at each piece rate;
    53    § 2. Paragraph (e) of subdivision 3 of section 220 of the  labor  law,
    54  as  amended  by  a  chapter  of the laws of 2019, amending the labor law
    55  relating to additional information provided to employees on public  work
        A. 9000                             3

     1  contracts,  as  proposed  in  legislative bills numbers S. 5679-A and A.
     2  2101-A, is amended to read as follows:
     3    (e)  The commissioner shall ensure that all supplements due under this
     4  article shall be paid to or on behalf of an employee. [(i)] The  commis-
     5  sioner  shall  require proof that the pension plan for which any supple-
     6  ment has been paid is qualified as a bona fide plan by the United States
     7  internal revenue service. Acceptable proof shall be shown by  submission
     8  of  a  determination letter issued by the United States internal revenue
     9  service. [(ii) The commissioner shall also  require  any  contractor  or
    10  subcontractor  who provides any supplement which is part of a fund, plan
    11  or program to furnish to the commissioner proof that the  supplement  is
    12  provided  through  a fund, plan or program and the amount contributed on
    13  the employees' behalf to such fund, plan or program.]
    14    § 3. Subparagraphs (ii) and (iii) of paragraph a of subdivision 3-a of
    15  section 220 of the labor law, as amended by a chapter  of  the  laws  of
    16  2019, amending the labor law relating to additional information provided
    17  to  employees on public work contracts, as proposed in legislative bills
    18  numbers S. 5679-A and A. 2101-A, 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
    24  the  work.  Such  posted statement shall be written in plain English and
    25  titled, in lettering no smaller than two inches in height and two inches
    26  in width, with the phrase "Prevailing Rate of Wages". Such posted state-
    27  ment shall be constructed of materials capable of  withstanding  adverse
    28  weather conditions. The contractor and every sub-contractor shall notify
    29  all  laborers,  workers  or  mechanics in their employ in writing of the
    30  prevailing [rate] rates  of  [wage]  wages  and  supplements  for  their
    31  particular job classification. Such notification shall be given to every
    32  laborer,  worker  or  mechanic upon hire, [on] with their first pay stub
    33  and [with] every pay stub thereafter[, and shall set forth  the  amounts
    34  paid per hour for each supplement provided for his or her particular job
    35  classification in accordance with the schedules determined by the fiscal
    36  officer.    Such  notification  shall  be provided in English and in the
    37  language identified by such laborer, worker, or mechanic as his  or  her
    38  primary language.] At the beginning of performance of every public works
    39  contract, and with the first paycheck after July first of each year, the
    40  contractor  and every sub-contractor shall notify all laborers, workers,
    41  and mechanics in their employ in writing, in English and in the language
    42  identified by each laborer, worker, and mechanic as his or  her  primary
    43  language,  in  accordance  with such form as is prescribed by the fiscal
    44  officer, of the telephone number and address for the fiscal officer. The
    45  notice shall also inform each laborer, worker, or mechanic of his or her
    46  right to contact the fiscal officer or some other representative if,  at
    47  any  time  while working for the public works contractor or sub-contrac-
    48  tor, he or she does not receive the proper prevailing rate of  wages  or
    49  supplements  for his or her particular job classification that he or she
    50  is entitled to receive under the contract. If  after  investigation  the
    51  fiscal  officer finds that a contractor or sub-contractor has (1) failed
    52  to post [or provide  any  notice]  the  statement  required  under  this
    53  [subdivision,  including having failed to provide any such notice in the
    54  language identified by any laborer, worker, or mechanic as  his  or  her
    55  primary  language] subparagraph, (2) failed to [set forth the prevailing
    56  wage or the breakdown of  supplements  on  the  pay  stub]  provide  any
        A. 9000                             4

     1  notification  to  laborers, workers and mechanics as required under this
     2  subparagraph, (3) willfully posted the incorrect prevailing [wage] wages
     3  and supplements, or (4) willfully set  forth  the  incorrect  prevailing
     4  wage  or  [the  amounts paid per hour for each] supplement [on the] with
     5  every pay stub, the fiscal  officer  shall,  by  an  order  which  shall
     6  describe  particularly  the  nature of the alleged violation, assess the
     7  contractor or sub-contractor a civil penalty  of  not  more  than  fifty
     8  dollars upon the first finding of a violation, two hundred fifty dollars
     9  upon  the  second  finding  of a violation, and five hundred dollars for
    10  each subsequent violation. In assessing the amount of the  penalty,  the
    11  fiscal  officer  shall give due consideration to the size of the employ-
    12  er's business, the good faith of the employer, and the  gravity  of  the
    13  violation.
    14    The  fiscal  officer  shall  prepare  templates  that  comply with the
    15  notification requirements of this subparagraph. Each such template shall
    16  be dual-language, including English and  one  additional  language.  The
    17  fiscal  officer  shall  determine,  in  his  or  her  discretion,  which
    18  languages to provide in addition to English, based on the  size  of  the
    19  New York state population that speaks each language and any other factor
    20  that the fiscal officer shall deem relevant. All such templates shall be
    21  posted  on the fiscal officer's website and made available for download-
    22  ing by contractors and subcontractors.  When  any  laborer,  worker,  or
    23  mechanic  identifies  his  or her primary language and a template is not
    24  made available by the fiscal officer in that language, the contractor or
    25  subcontractor shall comply with  this  subparagraph  by  providing  such
    26  laborer,  worker,  or mechanic an English-language notice or acknowledg-
    27  ment. A contractor or subcontractor shall not be penalized for errors or
    28  omissions in the non-English portions of  any  notice  provided  by  the
    29  fiscal  officer.  The  fiscal  officer shall have discretion to waive or
    30  alter the notification requirements of this subparagraph  for  temporary
    31  help firms as defined in section nine hundred sixteen of this chapter.
    32    (iii)  The  contractor  and  every  sub-contractor shall keep original
    33  payrolls or transcripts thereof, subscribed and sworn to or affirmed  by
    34  him  or  her  as  true under the penalties of perjury, setting forth the
    35  names and addresses and showing for each worker,  laborer,  or  mechanic
    36  the hours and days worked, the occupations worked, the hourly wage rates
    37  paid  and the supplements paid or provided. Such payrolls or transcripts
    38  thereof shall [also set forth the amounts paid per hour for each supple-
    39  ment provided in accordance with the schedules determined by the  fiscal
    40  officer] be accompanied by a copy of each notice required under subdivi-
    41  sion  one  or two of section one hundred ninety-five of this chapter for
    42  every laborer, worker or mechanic, which shall be subscribed  and  sworn
    43  to or affirmed as true under penalties of perjury and shall be deemed to
    44  be  part of the original payrolls or transcripts thereof for purposes of
    45  this subdivision.  Where the contractor or sub-contractor  maintains  no
    46  regular  place of business in New York state and where the amount of the
    47  contract is in excess of  twenty-five  thousand  dollars  such  payrolls
    48  shall  be  kept  on the site of the work.  All other contractors or sub-
    49  contractors shall produce within five days on the site of the  work  and
    50  upon formal order of the commissioner or his or her designated represen-
    51  tative  such  original  payrolls  or transcripts thereof, subscribed and
    52  sworn to or affirmed by him or her as true under the penalties of perju-
    53  ry, as may be deemed necessary to adequately enforce the  provisions  of
    54  this  article. Every contractor, and sub-contractor, shall submit to the
    55  department of jurisdiction within thirty  days  after  issuance  of  its
    56  first  payroll,  and  every  thirty days thereafter, a transcript of the
        A. 9000                             5

     1  original payroll record, as provided by  this  article,  subscribed  and
     2  sworn  to  or  affirmed  as true under the penalties of perjury.  [Every
     3  contractor and subcontractor shall submit to the  commissioner,  and  to
     4  the  fiscal  officer,  when  the fiscal officer is a city comptroller or
     5  other analogous officer, within thirty days of its  first  payroll,  and
     6  annually  thereafter,  a  transcript  of  the  original  payroll record,
     7  subscribed and sworn to or affirmed  as  true  under  the  penalties  of
     8  perjury,  including,  documentation  of  each fund, plan, or program for
     9  which any supplement has been paid or  provided.  Such  transcripts  and
    10  additional  information  shall  be provided on a form promulgated by the
    11  department.] Any person who willfully fails to file such payroll records
    12  with the department of jurisdiction, commissioner, or the fiscal officer
    13  shall be guilty of a class E felony. In addition, any person  who  will-
    14  fully  fails  to  file such payroll records within the time specified in
    15  this subparagraph shall be subject to a civil penalty of up to one thou-
    16  sand dollars per day.
    17    § 4. Subdivision 6 of section 220 of the labor law, as  amended  by  a
    18  chapter  of  the  laws of 2019, amending the labor law relating to addi-
    19  tional information provided to employees on public  work  contracts,  as
    20  proposed  in  legislative  bills  numbers  S.  5679-A  and A. 2101-A, is
    21  amended to read as follows:
    22    6. The fiscal officer may, and on the written request  of  any  inter-
    23  ested  person  shall,  require any person or corporation performing such
    24  public work to file with such fiscal officer schedules  of  the  supple-
    25  ments  to  be provided and wages to be paid to such laborers, workmen or
    26  mechanics[, including information regarding the amounts to be  paid  per
    27  hour  for  each  supplement provided for each particular job classifica-
    28  tion. The fiscal officer may, and on the written request of  any  inter-
    29  ested party shall, require and furnish proof of any supplements provided
    30  or  amounts  paid  to or on behalf of laborers, workers, or mechanics in
    31  satisfaction  of  the  obligation  to  provide  supplements  under  this
    32  section].  Any  such  person or corporation shall, within ten days after
    33  the receipt of written notice of such requirement, file with the  fiscal
    34  officer such schedules of wages and supplements. An employer may contest
    35  a determination by the fiscal officer under paragraphs a and c of subdi-
    36  vision  five  of  this  section.  The  employer must allege and prove by
    37  competent evidence, that the actual percentage of workers,  laborers  or
    38  mechanics is below the required thirty per centum and during the penden-
    39  cy  of  any such contest and until final determination thereof, the work
    40  in question shall proceed under the rate established by the fiscal offi-
    41  cer.
    42    § 5. Paragraph c of subdivision 3-a of section 220 of the  labor  law,
    43  as  added  by  chapter  137  of  the laws of 1985, is amended to read as
    44  follows:
    45    c. The fiscal officer may require any person or corporation performing
    46  such public work to file with the fiscal  officer  within  ten  days  of
    47  receipt  of said request, payroll records, sworn to as to their validity
    48  and accuracy, requested by the fiscal officer, for said public  work  or
    49  for  any  public or private work performed by said person or corporation
    50  during the same period of time  as  said  public  work.    Such  payroll
    51  records  shall  include a copy of each notice required under subdivision
    52  one or two of section one hundred ninety-five of this chapter for  every
    53  laborer,  worker  or mechanic, which shall be subscribed and sworn to or
    54  affirmed as true under penalties of perjury.  In  addition,  the  fiscal
    55  officer  may  require such person or corporation to furnish proof of any
    56  supplements provided or amount paid to or on behalf of laborers, workers
        A. 9000                             6

     1  or mechanics in satisfaction of the obligation  to  provide  supplements
     2  pursuant  to this section. In the event said person or corporation fails
     3  to provide the requested information within the allotted ten  days,  the
     4  fiscal  officer  shall,  within  fifteen  days,  order the department of
     5  jurisdiction to immediately withhold from  payment  to  said  person  or
     6  corporation  up  to twenty-five percent of the amount, not to exceed one
     7  hundred thousand dollars, to be paid to said person or corporation under
     8  the terms of the contract pursuant to which said public  work  is  being
     9  performed.  Said  amount  withheld  shall  be  immediately released upon
    10  receipt by the department of jurisdiction of a notice  from  the  fiscal
    11  officer indicating that the request for records had been satisfied.
    12    §  6.  This  act  shall  take  effect on the same date and in the same
    13  manner as a chapter of the laws of 2019, amending the labor law relating
    14  to  additional  information  provided  to  employees  on   public   work
    15  contracts,  as  proposed  in legislative bills numbers S.  5679-A and A.
    16  2101-A, takes effect.