Bill Text: NY S00618 | 2021-2022 | General Assembly | Introduced
Bill Title: Relates to covered developers, covered employers, covered lessees or lessors, financial assistance provided to covered developers, covered leases, and covered development projects; provides for rights of employees working under such circumstances.
Spectrum: Partisan Bill (Democrat 7-0)
Status: (Introduced - Dead) 2022-01-05 - REFERRED TO LABOR [S00618 Detail]
Download: New_York-2021-S00618-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 618 2021-2022 Regular Sessions IN SENATE (Prefiled) January 6, 2021 ___________ Introduced by Sens. RAMOS, BENJAMIN, BIAGGI, HARCKHAM, SALAZAR, SKOUFIS, STAVISKY -- 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 covered developers, covered employers, covered lessees or lessors, financial assistance provided to covered developers, covered leases, and covered develop- ment projects The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivisions 1, 5, 8, 12 and 13 of section 230 of the labor 2 law, subdivision 1 as amended by chapter 542 of the laws of 1984, subdi- 3 visions 5 and 8 as added by chapter 777 of the laws of 1971, and subdi- 4 visions 12 and 13 as added by chapter 547 of the laws of 1998, are 5 amended and seven new subdivisions 15, 16, 17, 18, 19, 20 and 21 are 6 added to read as follows: 7 1. "Building service employee" or "employee" means any person perform- 8 ing work in connection with the care or maintenance of an existing 9 building, or in connection with the transportation of office furniture 10 or equipment to or from such building, or in connection with the trans- 11 portation and delivery of fossil fuel to such building, for a contractor 12 under a contract with a public agency which is in excess of one thousand 13 five hundred dollars and the principal purpose of which is to furnish 14 services through the use of building service employees or in connection 15 with a covered development project or lease. 16 "Building service employee" or "employee" includes, but is not limit- 17 ed, to, watchman, guard, doorman, building cleaner, porter, handyman, 18 janitor, gardener, groundskeeper, stationary fireman, elevator operator 19 and starter, window cleaner, and occupations relating to the collection 20 of garbage or refuse, and to the transportation of office furniture and 21 equipment, and to the transportation and delivery of fossil fuel but EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04772-01-1S. 618 2 1 does not include clerical, sales, professional, technician and related 2 occupations. 3 "Building service employee" or "employee" also does not include any 4 employee to whom the provisions of articles eight and eight-a of this 5 chapter are applicable. 6 5. "Wage" includes: (a) basic hourly cash rate of pay; and (b) supple- 7 ments. The term "supplements" means fringe benefits including medical or 8 hospital care, pensions on retirement or death, compensation for inju- 9 ries or illness resulting from occupational activity, or insurance to 10 provide any of the foregoing, unemployment benefits, life insurance, 11 disability and sickness insurance, accident insurance, vacation and 12 holiday pay, costs of apprenticeship or other similar programs and other 13 bona fide fringe benefits not otherwise required by federal, state or 14 local law to be provided by the contractor, covered developer, covered 15 lessee or lessor, covered employer, or subcontractor. 16 8. "Fiscal officer" means the industrial commissioner, except for 17 building service work performed by or on behalf of a city, or where the 18 covered development project or real property subject to a covered lease 19 is located within a city with a population of over one million, in which 20 case "fiscal officer" means the comptroller or other analogous officer 21 of such city. 22 12. "Parent company" shall mean an entity that directly controls the 23 contractor or subcontractor, or covered developer, or covered lessee or 24 lessor. 25 13. "Subsidiary" shall mean an entity that is controlled directly, or 26 indirectly through one or more intermediaries, by a contractor or 27 subcontractor, or covered developer, or covered lessee or lessor, or the 28 contractor's, or covered developer's, or covered lessee's or lessor's 29 parent company. 30 15. "Covered developer" means any entity receiving financial assist- 31 ance in relation to a covered development project, or any assignee or 32 successor in interest of real property that qualifies as a covered 33 development project. 34 16. "Covered employer" means any entity, other than a covered develop- 35 er, or covered lessee or lessor, who employs building service workers at 36 a covered development project or at any real property subject to a 37 covered lease. 38 17. "Covered lessee" means any entity leasing real property from a 39 public agency. 40 18. "Covered lessor" means any entity from whom a public agency is 41 leasing commercial office space or commercial office facilities of ten 42 thousand square feet or more, provided that the public agency, whether 43 through a single agreement or multiple agreements, leases no less than 44 fifty-one percent of the total square footage of the building to which 45 the lease or leases apply. 46 19. "Financial assistance" means assistance that is provided to a 47 covered developer for the improvement or development of real property, 48 economic development, job retention and growth, or other similar 49 purposes, and that is paid in whole or in part by a public agency or 50 agencies, and having a cumulative anticipated total financial value of 51 one million dollars. Financial assistance includes, but is not limited 52 to, cash payments or grants, bond financing, tax abatements or 53 exemptions (including, but not limited to, abatements or exemptions from 54 real property, mortgage recording, sales and uses taxes, or the differ- 55 ence between any payments in lieu of taxes and the amount of real prop- 56 erty or other taxes that would have been due if the property were notS. 618 3 1 exempted from the payment of such taxes), tax increment financing, 2 filing fee waivers, energy cost reductions, environmental remediation 3 costs, write-downs in the market value of building, land, or the cost of 4 capital improvements related to real property that, under ordinary 5 circumstances, the public agency would not pay for. Where assistance 6 takes the form of loans or bond financing, the value of the assistance 7 shall be determined based on the difference between the financing cost 8 to a borrower and the cost to a similar borrower that does not receive 9 financial assistance. 10 20. "Covered lease" means any agreement by a public agency with a 11 covered lessor or lessee. 12 21. "Covered development project" means a project that has received or 13 is expected to receive financial assistance. 14 § 2. The labor law is amended by adding a new section 231-a to read as 15 follows: 16 § 231-a. Prevailing wage for covered leases and covered development 17 projects. 1. Covered developers and covered lessees or lessors shall 18 ensure that all building service employees performing building service 19 work in connection with a covered development project or covered lease 20 are paid no less than the prevailing wage. 21 2. The obligation to pay prevailing supplements may be discharged by 22 furnishing any equivalent combinations of fringe benefits or by making 23 equivalent or differential payments in cash under rules and regulations 24 established by the fiscal officer. 25 3. The public agency providing financial assistance or entering into a 26 covered lease shall require, as a contractual condition of such finan- 27 cial assistance or covered lease, that any building service employee 28 performing building service work in connection with a covered develop- 29 ment project or covered lease, regardless of the employing entity, shall 30 be paid no less than the prevailing wage; and any lease, contract for 31 property management services, or contract for the provision of building 32 services, entered into by the covered developer or covered lessee or 33 lessor, and any subcontract thereof, shall contain the following 34 provision: "All building service employees shall be paid no less than 35 the prevailing wage as provided by the fiscal officer as described in 36 section two hundred thirty-four of the Labor Law. Any covered employer, 37 as defined in section two hundred thirty of the Labor Law, shall main- 38 tain all records relating to the employment of building service workers 39 as described in section two hundred thirty-three of the Labor Law which 40 are to be provided to the covered developer. Such covered employer shall 41 also submit such statements as required under section two hundred thir- 42 ty-seven of the Labor Law. This requirement shall apply to any covered 43 development project or real property subject to a covered lease as 44 provided by Article nine of the Labor Law." 45 4. Upon the awarding of financial assistance or entering into a 46 covered lease by a public agency, the awarding public agency shall imme- 47 diately furnish to the fiscal officer: 48 (a) the name and address of the awardee; 49 (b) the date when the financial assistance was awarded or the covered 50 lease was entered into; 51 (c) the specific building or facility address or addresses, or locali- 52 ty to which the covered lease or financial assistance pertains, if the 53 financial assistance is targeted to a particular building or buildings, 54 facility or facilities, or locality; and 55 (d) the anticipated total value of the financial assistance.S. 618 4 1 5. When the financial assistance to the covered development project 2 applies to a particular building or buildings, facility or facilities, 3 or locality, the prevailing wage shall apply only to such building or 4 buildings, facility or facilities, or locality; however, when the finan- 5 cial assistance is not so limited, the covered development project shall 6 be deemed to include any building or facility in which the covered 7 developer operates within the state, and the prevailing wage requirement 8 set forth in this subdivision shall apply to any building or facility in 9 which the covered developer operates within the state. 10 6. The fiscal officer shall maintain a list of covered developers, 11 covered lessees or lessors, and covered development projects, including 12 the addresses of each. Such list shall be updated and published as often 13 as is necessary to keep current. 14 7. Within two weeks of receiving financial assistance or entering into 15 a covered lease, a covered developer, covered lessee or lessor, or 16 covered employer shall post, in the same location and manner that other 17 statutorily required notices are posted, at every such covered develop- 18 ment project or real property subject to the covered lease, and provide 19 each building service employee a copy of a written notice which shall be 20 prepared by the fiscal officer, detailing the wages, benefits, and other 21 protections to which building service employees are entitled under this 22 section. Such notice shall also provide the name, address and telephone 23 number of the fiscal officer and a statement advising building service 24 employees that if they have been paid less than the prevailing wage they 25 may notify the fiscal officer and request an investigation or bring suit 26 in a court of competent jurisdiction. Such notices shall be posted in 27 English and in any other language which at least twenty percent of 28 employees speak as a primary language. Such notice shall remain posted 29 for the time that the requirements of this section shall apply and shall 30 be adjusted periodically to reflect the current prevailing wage for 31 building service employees. In addition to posting such notice, the 32 covered developer, covered lessee or lessor, or covered employer shall 33 provide each individual employee a copy of the notice in English or any 34 other language spoken by the employee as a primary language, so long as 35 the fiscal officer has made such notice available to employers in such 36 language on its website. The fiscal officer shall make available on its 37 website sample written notices explaining the rights of building service 38 employees under this section and shall translate such sample written 39 notices into such languages it deems appropriate. 40 8. The requirements of this section shall apply for the term of the 41 financial assistance, ten years from the opening date of the financially 42 assisted project, the duration of any written agreement between a public 43 agency and the covered developer providing for financial assistance, or 44 the duration of the covered lease, whichever is longer. 45 9. This section shall not preempt any public agency from establishing 46 higher minimum wages for covered developers or covered lessees or 47 lessors receiving financial assistance or leasing from or to a public 48 agency. Nor shall any covered developer, covered lessee or lessor, or 49 covered employer be preempted from paying a wage higher than the 50 prevailing wage. 51 § 3. Section 232 of the labor law, as added by chapter 777 of the laws 52 of 1971, is amended to read as follows: 53 § 232. Overtime. An employee, employed by a contractor or employed at 54 a covered development project, or at real property subject to a covered 55 lease, who works more than eight hours in any one day or more than forty 56 hours in any workweek shall be paid wages for such overtime at a rateS. 618 5 1 not less than one-and-one-half times his prevailing basic cash hourly 2 rate. 3 § 4. Subdivisions 1, 2 and 3 of section 233 of the labor law, as added 4 by chapter 777 of the laws of 1971, are amended and two new subdivisions 5 5 and 6 are added to read as follows: 6 1. In all cases where service work is being performed pursuant to a 7 contract, or covered lease, or covered development project therefor, the 8 contractor, or covered developer, or covered lessee or lessor, shall 9 keep original payrolls or transcripts thereof, subscribed and confirmed 10 by him as true, under penalties of perjury, showing the hours and days 11 worked by each employee, the craft, trade or occupation at which he was 12 employed, and the wages paid. A covered developer or covered lessee or 13 lessor may satisfy this requirement by obtaining copies of employment 14 records from a covered employer. 15 2. Where the wages paid include sums which are not paid directly to 16 the workmen weekly and which are expended for supplements, the records 17 required to be maintained shall include a record of such hourly payment 18 on behalf of such employees, the supplement for which such payment has 19 been made, and the name and address of the person to whom such payment 20 has been made. In all such cases, the contractor, or covered developer, 21 or covered lessee or lessor, shall keep a true and inscribed copy of the 22 agreement under which such payments are made, a record of all net 23 payments made thereunder, and a list of all persons for whom such 24 payments are made. A covered developer, or covered lessee or lessor, 25 may satisfy this requirement by obtaining copies of employment records 26 from a covered employer. 27 3. The records required to be maintained shall be kept on the site of 28 the work during all of the time that work under the contract, or other- 29 wise subject to the requirements of this section, is being performed. 30 5. A covered developer, or covered lessee or lessor, shall include a 31 requirement in all leases, management agreements, or service contracts, 32 and any subcontracts thereof, that any covered employer shall comply 33 with the recordkeeping requirements of this section. The covered devel- 34 oper, or covered lessee or lessor shall obtain such records from any 35 covered employer and preserve such records for a period of six years 36 after the completion of the employee's work. 37 6. Failure to maintain such records as required by this section shall 38 create a rebuttable presumption that the building service employees were 39 not paid the wages and supplements required under this article. 40 § 5. Paragraph (f) of subdivision 1 of section 234 of the labor law, 41 as added by chapter 777 of the laws of 1971, is amended to read as 42 follows: 43 (f) to require a contractor, or covered developer, or covered lessee 44 or lessor, to file with the fiscal officer a record of the wages actual- 45 ly paid by such contractor, or covered developer, or covered lessee or 46 lessor, to the employees and of their hours of work; 47 § 6. The labor law is amended by adding a new section 235-a to read as 48 follows: 49 § 235-a. Investigations, hearings, and private right of action for 50 covered leases and covered development projects. 1. Whenever the fiscal 51 officer has reason to believe that a building service employee perform- 52 ing building service work in connection with a covered lease or covered 53 development project has been paid less than the applicable prevailing 54 wage and supplements, or upon receipt of a written complaint, the fiscal 55 officer shall conduct a special investigation to determine the facts 56 relating thereto.S. 618 6 1 2. If, despite the requirements of law, the fiscal officer has not 2 determined the prevailing wage as required in this article, the fiscal 3 officer shall determine in the proceeding before him the wages prevail- 4 ing at the time the work was performed for the crafts, trades, or occu- 5 pations of the employees involved. 6 3. In an investigation conducted under the provisions of this section, 7 the inquiry of the fiscal officer shall not extend to work performed 8 more than three years prior to: (a) the filing of the complaint; or (b) 9 the commencement of the investigation upon the fiscal officer's own 10 violation, whichever occurs first. 11 4. (a) The investigation and hearing shall be expeditiously conducted, 12 and upon the completion thereof, the fiscal officer shall determine the 13 issues raised and shall make and file an order in his office stating 14 such determination, and forthwith serve personally or by mail a copy of 15 such order and determination together with a notice of filing upon all 16 parties to the proceeding, and upon the financial officer of the public 17 agency involved. 18 (b) In addition to directing payment of wages found to be due, such 19 order of the fiscal officer shall direct payment of liquidated damages 20 in an amount equal to the greater of two percent of the annual value of 21 the financial assistance or covered lease, or two-tenths of a percent of 22 the total value of the financial assistance or covered lease. Where the 23 fiscal officer is the commissioner, the penalty shall be paid to the 24 commissioner for deposit in the state treasury. Where the fiscal officer 25 is a city comptroller or other analogous officer, the penalty shall be 26 paid to said officer for deposit in the city treasury. 27 (c) An order directing the payment to specified employees of wages 28 found to be due and unpaid shall include interest at a rate not less 29 than six per centum per year, and not more than the rate of interest 30 then in effect as prescribed by the superintendent of financial services 31 pursuant to section fourteen-a of the banking law per annum from the 32 time such wages should have been paid. In determining the rate of inter- 33 est to be imposed, the fiscal officer shall consider the size of the 34 employer's business, the good faith of the employer, the gravity of the 35 violation, the history of previous violations of the employer, successor 36 or substantially-owned affiliated entity, any officer of the covered 37 developer, covered lessee or lessor, or covered employer who knowingly 38 participated in the violation of this article, and any of the partners 39 if the covered developer, covered lessee or lessor, or covered employer 40 is a partnership, or any of the five largest shareholders of the covered 41 developer, covered lessee or lessor, or the covered employer, as deter- 42 mined by the fiscal officer, and the failure to comply with recordkeep- 43 ing or other non-wage requirements. 44 5. (a) Provided that no proceeding for judicial review as provided in 45 this section shall then be pending and the time for initiation of such 46 proceeding shall have expired, the fiscal officer shall file with the 47 county clerk of the county where the employer resides or has a place of 48 business, the order of the fiscal officer containing the amount found to 49 be due. The filing of such order shall have the full force and effect of 50 a judgment duly docketed in the office of such clerk. The order may be 51 enforced by and in the name of the fiscal officer in the same manner, 52 and with like effect, as that prescribed by the civil practice law and 53 rules for the enforcement of a money judgment. 54 (b) When a final determination has been made in favor of a complain- 55 ant, and the covered developer, covered lessee or lessor, or covered 56 employer found in violation of this article has failed to make paymentS. 618 7 1 as required by the order of the fiscal officer, and provided that no 2 relevant proceeding for judicial review shall then be pending and the 3 time for initiation of such proceeding shall have expired, the fiscal 4 officer may file a copy of the order of the fiscal officer containing 5 the amount found to be due with the county clerk of the county of resi- 6 dence or place of business of any of the following: 7 (i) any substantially-owned affiliated entity or any successor of the 8 covered developer, covered lessee or lessor, or covered employer; 9 (ii) any of the partners if the covered developer, covered lessee or 10 lessor, or covered employer is a partnership or any of the five largest 11 shareholders of the covered developer, covered lessee or lessor, or 12 covered employer, as determined by the fiscal officer; or 13 (iii) any officer of the covered developer, covered lessee or lessor, 14 or covered employer who knowingly participated in the violation of this 15 article; provided, however, that the fiscal officer shall within five 16 days of the filing of the order provide notice thereof to the partner or 17 top five shareholders or successor or substantially-owned affiliated 18 entity. 19 (c) The notified party may contest the filing on the basis that it is 20 not a partner or one of the five largest shareholders, an officer of the 21 covered developer, covered lessee or lessor, or covered employer who 22 knowingly participated in the violation of this article, successor or 23 substantially-owned affiliated entity. If, after reviewing the informa- 24 tion provided by the notified party in support of such contest, the 25 fiscal officer determines that the notified party is not within the 26 definitions described herein, the fiscal officer shall immediately with- 27 draw his filing of the order. 28 (d) The filing of such order shall have the full force and effect of a 29 judgment duly docketed in the office of such clerk. The order may be 30 enforced by and in the name of the fiscal officer in the same manner, 31 and with like effect as that prescribed by the civil practice law and 32 rules for the enforcement of a money judgment. 33 6. When a final determination has been made and such determination is 34 in favor of an employee, such employee may, in addition to any other 35 remedy provided by this article, institute an action in any court of 36 appropriate jurisdiction against the entity found to have violated this 37 article, any substantially-owned affiliated entity, any officer of the 38 covered developer, covered lessee or lessor, or covered employer who 39 knowingly participated in the violation of this article, and any of the 40 partners if the covered developer, covered lessee or lessor, or covered 41 employer is a partnership or any of the five largest shareholders of the 42 covered developer, covered lessee or lessor, or covered employer, as 43 determined by the fiscal officer, for the recovery of the difference 44 between the sum, if any, actually paid to him or her by the aforesaid 45 financial officer pursuant to said order and the amount found to be due 46 to him or her as determined by said order. Such action must be commenced 47 within three years from the date of the filing of said order, or if said 48 order is reviewed in a proceeding pursuant to article seventy-eight of 49 the civil practice law and rules, within three years after the termi- 50 nation of such review proceeding. 51 7. (a) Any person claimed to be aggrieved by a violation of this arti- 52 cle shall have a cause of action in any court of competent jurisdiction 53 against the entity alleged to have violated this article, any substan- 54 tially-owned affiliated entity, any officer of the covered developer, 55 covered lessee or lessor, or covered employer who knowingly participated 56 in the violation of this article, and any of the partners if the coveredS. 618 8 1 developer, covered lessee or lessor, or covered employer is a partner- 2 ship or any of the five largest shareholders of the covered developer, 3 covered lessee or lessor, or covered employer, as determined by the 4 fiscal officer, for the recovery of the difference between the sum, if 5 any, actually paid to him or her by the aforesaid financial officer 6 pursuant to said order and the amount found to be due to him or her as 7 determined by said order. The aggrieved party may seek damages includ- 8 ing punitive damages, injunctive relief, and such other remedies as may 9 be appropriate, unless such person has filed a complaint with the fiscal 10 officer with respect to such claim. In an action brought by a building 11 service employee, if the court finds in favor of the employee, it shall 12 award the employee, in addition to other relief, his or her reasonable 13 attorneys' fees and costs. 14 (b) Investigation by the fiscal officer shall not be a prerequisite 15 to, nor a bar against, a person bringing a civil action under this 16 section. Notwithstanding any inconsistent provision of subdivisions one 17 through six of this section, where a complaint filed with the fiscal 18 officer is dismissed, an aggrieved person shall maintain all rights to 19 commence a civil action pursuant to this action as if no complaint had 20 been filed. 21 (c) No procedure or remedy set forth in this section is intended to be 22 exclusive or a prerequisite for asserting a claim for relief to enforce 23 any rights hereunder in a court of law. This section shall not be 24 construed to limit an employee's right to bring a common law cause of 25 action for wrongful termination. 26 (d) Any judgement or court order awarding remedies under this section 27 shall provide that if any amount remains unpaid upon the expiration of 28 ninety days following issuance of judgement, or ninety days after expi- 29 ration of the time to appeal and no appeal is then pending, whichever is 30 later, the total amount of judgement shall automatically increase by 31 fifteen percent. 32 (e) In any action instituted upon a wage claim by a building service 33 employee in which the employee prevails, the court may allow such 34 employee, in addition to ordinary costs, a reasonable sum not exceeding 35 one hundred dollars for expenses, which may be taxed as costs. No assig- 36 nee of a wage claim shall be benefitted by this provision. 37 (f) Notwithstanding any other provision of law, an action to recover 38 upon liability imposed by this article must be commenced within the 39 greater of six years from the date the cause of action accrued, or two 40 years from the time the plaintiff or the person whom the plaintiff 41 claims discovered the fraud, or could with reasonable diligence have 42 discovered it. The statute of limitations shall be tolled from the date 43 an employee files a complaint with the fiscal officer or the date the 44 fiscal officer commences an investigation, whichever if earlier, until 45 an order to comply issued by the fiscal officer becomes final, or where 46 the fiscal officer does not issue an order, until the date on which the 47 fiscal officer notifies the complainant that the investigation has 48 concluded. 49 8. (a) No person shall take any adverse action against an employee 50 which penalizes an employee for, or is reasonably likely to deter an 51 employee from, exercising or attempting to exercise such employee's 52 rights under this article or interfere with such employee's exercise of 53 rights under this article. 54 (b) Taking an adverse action includes, but is not limited to, threat- 55 ening, intimidating, disciplining, discharging, demoting, suspending, or 56 harassing an employee, reducing the hours of pay of an employee, inform-S. 618 9 1 ing another employer that an employee has engaged in activities 2 protected by this article, discriminating against the employee, includ- 3 ing actions related to perceived immigration status or work authori- 4 zation, and maintenance or application of an absence control policy that 5 counts protected leave as an absence that may lead to or result in an 6 adverse action. 7 (c) An employee need not explicitly refer to a provision of this arti- 8 cle to be protected from an adverse action. 9 (d) A casual connection may be established between the exercise, 10 attempted exercise, or anticipated exercise of rights protected by this 11 article and an employer's adverse action against an employee or a group 12 of employees by indirect or direct evidence. 13 (e) Retaliation is established when it is shown that a protected 14 activity was a motivating factor for an adverse action, whether or not 15 other factors motivated the adverse action. 16 9. (a) When a final determination has been made against a covered 17 employer in favor of a complainant and the covered developer, or covered 18 lessee or lessor, has made payment to the complainant of any wages and 19 interest due the complainant and any civil penalty, and providing that 20 no relevant proceeding for judicial review shall then be pending and the 21 time for initiation of such proceeding shall have expired, the covered 22 developer, or covered lessee or lessor, may file a copy of the order of 23 the fiscal officer containing the amount found to be due with the county 24 clerk of the county of residence or place of business of the covered 25 employer. The filing of such order shall have the full force and effect 26 of a judgment duly docketed in the office of such clerk. The judgment 27 may be docketed in favor of the covered developer, or covered lessee or 28 lessor, who may proceed as a judgment creditor against the covered 29 employer for the recovery of all monies paid by the covered developer, 30 or covered lessee or lessor, under such order. 31 (b) When a covered developer, or covered lessee or lessor, has made 32 payment to a complainant of any wages and interest due to him or her 33 because of a covered employer's violation of this article, the covered 34 developer, or covered lessee or lessor, may bring suit to recover all 35 monies paid by the covered developer, or covered lessee or lessor, from 36 the covered employer. 37 10. (a) When two judgments or final orders pursuant to the provisions 38 of this section have been entered against a body, as defined by para- 39 graph (b) of this subdivision, who knowingly participated in the 40 violation of this article within any consecutive six-year period deter- 41 mining that such body who knowingly participated in the violation of 42 this article has willfully failed to pay the prevailing wages in accord- 43 ance with the provisions of this article, whether such failures were 44 concurrent or consecutive and whether or not such final determinations 45 concerning separate covered leases or awards of financial assistance are 46 rendered simultaneously, such entity who knowingly participated in the 47 violation of this article, or any successor is a corporation, any offi- 48 cer of such corporation who knowingly participated in such failure, 49 shall be ineligible to enter into covered leases with a public agency or 50 receive financial assistance for a period of five years from the date of 51 the second order, provided, however, that where any such final order 52 involves the falsification of payroll records or the kickback of wages, 53 the body who knowingly participated in the violation of this article 54 shall be ineligible to enter into covered leases or to receive financial 55 assistance for a period of five years from the date of the first final 56 order. Nothing in this subdivision shall be construed as affecting anyS. 618 10 1 provision of any other law or regulation relating to the awarding of 2 financial assistance or entering into a covered lease with a public 3 agency. The industrial commissioner shall maintain a list of covered 4 developers, covered lessees or lessors, or covered employers, who are 5 ineligible, including their names, address, date, and duration of their 6 ineligibility. Such list shall be updated and published as often as is 7 necessary to keep it current. 8 (b) For the purposes of paragraph (a) of this subdivision, the term 9 "body" shall mean a covered developer, covered lessee or lessor, covered 10 employer, successor, or any substantially-owned affiliated entity of the 11 covered developer, covered lessee or lessor, or covered employer, any of 12 the partners if the covered developer, covered lessee or lessor, or 13 covered employer is a partnership, any of the five largest shareholders 14 of the covered developer, covered lessee or lessor, or covered employer, 15 any officer of the covered developer, covered lessee or lessor, or 16 covered employer. 17 § 7. Subdivision 1 of section 237 of the labor law, as amended by 18 chapter 698 of the laws of 1988, is amended and a new subdivision 5 is 19 added to read as follows: 20 1. Subcontractors engaged for service work by a contractor or its 21 subcontractor and covered employers shall, upon receipt from the covered 22 developer, or covered lessee or lessor, contractor or its subcontractor 23 of the schedule of wages and supplements specified in the contract or 24 the prevailing wage schedule pursuant to this article, provide to the 25 covered developer, covered lessee or lessor, contractor or its subcon- 26 tractor a verified statement attesting that the covered employer or 27 subcontractor has received and reviewed such schedule of wages and 28 supplements, and agrees that it will pay the applicable prevailing wages 29 and will pay or provide the supplements specified therein. Such verified 30 statement shall be filed in the manner described in subdivision three of 31 this section for subcontractors of a contractor or its subcontractor, 32 and in the manner described in subdivision five of this section for 33 covered employers. It shall be a violation of this article for any 34 covered developer, covered lessee or lessor, contractor or its subcon- 35 tractor to fail to provide for its subcontractor a copy of the schedule 36 of wages and supplements specified in the contract or the prevailing 37 wage schedule pursuant to this article. 38 5. Prior to receiving financial assistance or entering into a covered 39 lease, or an extension, renewal, amendment, or modification of a covered 40 lease, and annually thereafter, every covered developer, covered lessee 41 or lessor, or covered employer shall provide to the public agency leas- 42 ing or providing financial assistance and to the fiscal officer an annu- 43 al verified statement that all building service employees employed at a 44 covered development project or at real property subject to a covered 45 lease by the covered developer, covered lessee or lessor, or by a 46 covered employer to perform building service work will be and/or have 47 been paid the prevailing wage. Such verified statement shall include a 48 record of the days and hours worked and the wages paid to each building 49 service employee employed at the covered development project, or at real 50 property subject to a covered lease. Where the wages paid include sums 51 which are not paid directly to the workmen weekly and which are expended 52 for supplements, the statement shall include a record of such hourly 53 payments on behalf of such employees, the supplement for which such 54 payment has been made, and the name and address of the person to whom 55 the payment has been made. Such statement shall be verified by the oath 56 of the chief executive or chief financial officer of the covered devel-S. 618 11 1 oper, or covered lessee or lessor, or the designee of any such person 2 that he or she has read such statements subscribed by him or her and 3 knows the contents thereof, and that the same is true of his or her own 4 knowledge, except with respect to wages and supplements owing by 5 contract which may be certified upon information and belief. A 6 violation of any provision of the statement, or failure to provide such 7 statement, shall constitute a violation of this section. The fiscal 8 officer or a public agency leasing or providing financial assistance may 9 inspect the records maintained pursuant to section two hundred thirty- 10 three of this article to verify these statements. 11 § 8. Subdivision 1 of section 238 of the labor law, as added by chap- 12 ter 777 of the laws of 1971, is amended and a new subdivision 3 is added 13 to read as follows: 14 1. Any contractor, covered developer, covered lessee or lessor, 15 covered employer, or subcontractor who shall upon his oath verify any 16 statement required to be filed under this article which is known by him 17 to be false shall be guilty of perjury and punishable as provided by the 18 penal law. 19 3. In the event of a failure by a covered developer, covered lessee or 20 lessor, or covered employer to comply with the provisions of this arti- 21 cle, the covered developer, covered lessee or lessor, or covered employ- 22 er shall be provided with a written notice of failure to comply by the 23 fiscal officer allowing ten days to cure the failure to comply. If the 24 covered developer, covered lessee or lessor, or covered employer fails 25 to timely cure in addition to any other remedies available at law or in 26 equity, the fiscal officer shall be permitted to seek the following 27 remedies: 28 (a) Suspend the payments of any financial assistance to the covered 29 developer until the date of cure. 30 (b) Failure to provide a required record or statement or to allow work 31 place access may result in liquidated damages to an amount equal to the 32 greater of two percent of the annual value of the financial assistance 33 or covered lease, or two-tenths of a percent of the total value of the 34 financial assistance or covered lease. 35 (c) A material breach of this article that continues for a period of 36 six months or more shall allow the public agency to terminate the finan- 37 cial assistance or covered lease. 38 (d) Late filing of any report required under this article: a payment 39 of one thousand dollars per day for each day the report is late, for up 40 to fourteen days. After fourteen days, the remedy in paragraph (b) of 41 this subdivision shall apply. 42 (e) Where the fiscal officer is the commissioner, the penalty shall be 43 paid to the commissioner for deposit in the state treasury. Where the 44 fiscal officer is a city comptroller or other analogous officer, the 45 penalty shall be paid to said officer for deposit in the city treasury. 46 § 9. The opening paragraph and subdivision 4 of section 239 of the 47 labor law, as added by chapter 777 of the laws of 1971, are amended to 48 read as follows: 49 [Every] Covered developers and covered lessees or lessors shall comply 50 with the following provisions, and every contract for service work shall 51 contain provisions by which the contractor agrees: 52 (4) that the contract, covered lease, or grant of financial assistance 53 may be cancelled or terminated by the public agency, and all moneys due 54 or to become due thereunder may be forfeited for a second or any subse- 55 quent violation of the terms or conditions of this section of the 56 contract.S. 618 12 1 § 10. Section 239-a of the labor law, as added by chapter 777 of the 2 laws of 1971, is amended to read as follows: 3 § 239-a. Enforcement of article. If the fiscal officer, as defined 4 herein, finds that any covered developer, covered lessee or lessor, or 5 contractor on service work fails to comply with or evades the provisions 6 of this article, he shall present evidence of such noncompliance or 7 evasion to the public agency having charge of such work, or having 8 entered into a covered lease or provided financial assistance for the 9 covered development project, for enforcement. Where such evidence indi- 10 cates a noncompliance or evasion on the part of a subcontractor or 11 covered employer, the contractor or covered developer, or covered lessee 12 or lessor, shall be responsible for such noncompliance or evasion. It 13 shall be the duty of the public agency in charge of such service work, 14 or who has entered into a covered lease or provided financial assistance 15 for the covered development project, to enforce the provisions of this 16 article. 17 § 11. This act shall take effect immediately.
