Bill Text: NY S04630 | 2019-2020 | 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 2-0)

Status: (Introduced) 2019-03-18 - REFERRED TO LABOR [S04630 Detail]

Download: New_York-2019-S04630-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          4630
                               2019-2020 Regular Sessions
                    IN SENATE
                                     March 18, 2019
                                       ___________
        Introduced  by  Sen.  RAMOS  -- 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
    22  does not include clerical, sales, professional, technician  and  related
    23  occupations.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10763-03-9

        S. 4630                             2
     1    "Building  service  employee"  or "employee" also does not include any
     2  employee to whom the provisions of articles eight and  eight-a  of  this
     3  chapter are applicable.
     4    5. "Wage" includes: (a) basic hourly cash rate of pay; and (b) supple-
     5  ments. The term "supplements" means fringe benefits including medical or
     6  hospital  care,  pensions on retirement or death, compensation for inju-
     7  ries or illness resulting from occupational activity,  or  insurance  to
     8  provide  any  of  the  foregoing, unemployment benefits, life insurance,
     9  disability and sickness  insurance,  accident  insurance,  vacation  and
    10  holiday pay, costs of apprenticeship or other similar programs and other
    11  bona  fide  fringe  benefits not otherwise required by federal, state or
    12  local law to be provided by the contractor, covered  developer,  covered
    13  lessee or lessor, covered employer, or subcontractor.
    14    8.  "Fiscal  officer"  means  the  industrial commissioner, except for
    15  building service work performed by or on behalf of a city, or where  the
    16  covered  development project or real property subject to a covered lease
    17  is located within a city with a population of over one million, in which
    18  case "fiscal officer" means the comptroller or other  analogous  officer
    19  of such city.
    20    12.  "Parent  company" shall mean an entity that directly controls the
    21  contractor or subcontractor, or covered developer, or covered lessee  or
    22  lessor.
    23    13.  "Subsidiary" shall mean an entity that is controlled directly, or
    24  indirectly through one  or  more  intermediaries,  by  a  contractor  or
    25  subcontractor, or covered developer, or covered lessee or lessor, or the
    26  contractor's,  or  covered  developer's, or covered lessee's or lessor's
    27  parent company.
    28    15. "Covered developer" means any entity receiving  financial  assist-
    29  ance  in  relation  to a covered development project, or any assignee or
    30  successor in interest of real  property  that  qualifies  as  a  covered
    31  development project.
    32    16. "Covered employer" means any entity, other than a covered develop-
    33  er, or covered lessee or lessor, who employs building service workers at
    34  a  covered  development  project  or  at  any real property subject to a
    35  covered lease.
    36    17. "Covered lessee" means any entity leasing  real  property  from  a
    37  public agency.
    38    18.  "Covered  lessor"  means  any entity from whom a public agency is
    39  leasing commercial office space or commercial office facilities  of  ten
    40  thousand  square  feet or more, provided that the public agency, whether
    41  through a single agreement or multiple agreements, leases no  less  than
    42  fifty-one  percent  of the total square footage of the building to which
    43  the lease or leases apply.
    44    19. "Financial assistance" means assistance  that  is  provided  to  a
    45  covered  developer  for the improvement or development of real property,
    46  economic  development,  job  retention  and  growth,  or  other  similar
    47  purposes,  and  that  is  paid in whole or in part by a public agency or
    48  agencies, and having a cumulative anticipated total financial  value  of
    49  one  million  dollars. Financial assistance includes, but is not limited
    50  to,  cash  payments  or  grants,  bond  financing,  tax  abatements   or
    51  exemptions (including, but not limited to, abatements or exemptions from
    52  real  property, mortgage recording, sales and uses taxes, or the differ-
    53  ence between any payments in lieu of taxes and the amount of real  prop-
    54  erty  or  other  taxes that would have been due if the property were not
    55  exempted from the payment  of  such  taxes),  tax  increment  financing,
    56  filing  fee  waivers,  energy cost reductions, environmental remediation

        S. 4630                             3
     1  costs, write-downs in the market value of building, land, or the cost of
     2  capital improvements related  to  real  property  that,  under  ordinary
     3  circumstances,  the  public  agency  would not pay for. Where assistance
     4  takes  the  form of loans or bond financing, the value of the assistance
     5  shall be determined based on the difference between the  financing  cost
     6  to  a  borrower and the cost to a similar borrower that does not receive
     7  financial assistance.
     8    20. "Covered lease" means any agreement by  a  public  agency  with  a
     9  covered lessor or lessee.
    10    21. "Covered development project" means a project that has received or
    11  is expected to receive financial assistance.
    12    § 2. The labor law is amended by adding a new section 231-a to read as
    13  follows:
    14    §  231-a.  Prevailing  wage for covered leases and covered development
    15  projects. 1. Covered developers and covered  lessees  or  lessors  shall
    16  endure  that  all building service employees performing building service
    17  work in connection with a covered development project or  covered  lease
    18  are paid no less than the prevailing wage.
    19    2.  The  obligation to pay prevailing supplements may be discharged by
    20  furnishing any equivalent combinations of fringe benefits or  by  making
    21  equivalent  or differential payments in cash under rules and regulations
    22  established by the fiscal officer.
    23    3. The public agency providing financial assistance or entering into a
    24  covered lease shall require, as a contractual condition of  such  finan-
    25  cial  assistance  or  covered  lease, that any building service employee
    26  performing building service work in connection with a  covered  develop-
    27  ment project or covered lease, regardless of the employing entity, shall
    28  be  paid  no  less than the prevailing wage; and any lease, contract for
    29  property management services, or contract for the provision of  building
    30  services,  entered  into  by  the covered developer or covered lessee or
    31  lessor,  and  any  subcontract  thereof,  shall  contain  the  following
    32  provision:  "All  building  service employees shall be paid no less than
    33  the prevailing wage as provided by the fiscal officer  as  described  in
    34  section  two hundred thirty-four of the Labor Law. Any covered employer,
    35  as defined in section two hundred thirty of the Labor Law,  shall  main-
    36  tain  all records relating to the employment of building service workers
    37  as described in section two hundred thirty-three of the Labor Law  which
    38  are to be provided to the covered developer. Such covered employer shall
    39  also  submit such statements as required under section two hundred thir-
    40  ty-seven of the Labor Law. This requirement shall apply to  any  covered
    41  development  project  or  real  property  subject  to a covered lease as
    42  provided by Article nine of the Labor Law."
    43    4. Upon the awarding  of  financial  assistance  or  entering  into  a
    44  covered lease by a public agency, the awarding public agency shall imme-
    45  diately furnish to the fiscal officer:
    46    (a) the name and address of the awardee;
    47    (b)  the date when the financial assistance was awarded or the covered
    48  lease was entered into;
    49    (c) the specific building or facility address or addresses, or locali-
    50  ty to which the covered lease or financial assistance pertains,  if  the
    51  financial  assistance is targeted to a particular building or buildings,
    52  facility or facilities, or locality; and
    53    (d) the anticipated total value of the financial assistance.
    54    5. When the financial assistance to the  covered  development  project
    55  applies  to  a particular building or buildings, facility or facilities,
    56  or locality, the prevailing wage shall apply only to  such  building  or

        S. 4630                             4
     1  buildings, facility or facilities, or locality; however, when the finan-
     2  cial assistance is not so limited, the covered development project shall
     3  be  deemed  to  include  any  building  or facility in which the covered
     4  developer operates within the state, and the prevailing wage requirement
     5  set forth in this subdivision shall apply to any building or facility in
     6  which the covered developer operates within the state.
     7    6.  The  fiscal  officer  shall maintain a list of covered developers,
     8  covered lessees or lessors, and covered development projects,  including
     9  the addresses of each. Such list shall be updated and published as often
    10  as is necessary to keep current.
    11    7. Within two weeks of receiving financial assistance or entering into
    12  a  covered  lease,  a  covered  developer,  covered lessee or lessor, or
    13  covered employer shall post, in the same location and manner that  other
    14  statutorily  required notices are posted, at every such covered develop-
    15  ment project or real property subject to the covered lease, and  provide
    16  each building service employee a copy of a written notice which shall be
    17  prepared by the fiscal officer, detailing the wages, benefits, and other
    18  protections  to which building service employees are entitled under this
    19  section. Such notice shall also provide the name, address and  telephone
    20  number  of  the fiscal officer and a statement advising building service
    21  employees that if they have been paid less than the prevailing wage they
    22  may notify the fiscal officer and request an investigation or bring suit
    23  in a court of competent jurisdiction. Such notices shall  be  posted  in
    24  English  and  in  any  other  language  which at least twenty percent of
    25  employees speak as a primary language. Such notice shall  remain  posted
    26  for the time that the requirements of this section shall apply and shall
    27  be  adjusted  periodically  to  reflect  the current prevailing wage for
    28  building service employees. In addition  to  posting  such  notice,  the
    29  covered  developer,  covered lessee or lessor, or covered employer shall
    30  provide each individual employee a copy of the notice in English or  any
    31  other  language spoken by the employee as a primary language, so long as
    32  the fiscal officer has made such notice available to employers  in  such
    33  language  on its website. The fiscal officer shall make available on its
    34  website sample written notices explaining the rights of building service
    35  employees under this section and shall  translate  such  sample  written
    36  notices into such languages it deems appropriate.
    37    8.  The  requirements  of this section shall apply for the term of the
    38  financial assistance, ten years from the opening date of the financially
    39  assisted project, the duration of any written agreement between a public
    40  agency and the covered developer providing for financial assistance,  or
    41  the duration of the covered lease, whichever is longer.
    42    9.  This section shall not preempt any public agency from establishing
    43  higher minimum wages  for  covered  developers  or  covered  lessees  or
    44  lessors  receiving  financial  assistance or leasing from or to a public
    45  agency. Nor shall any covered developer, covered lessee  or  lessor,  or
    46  covered  employer  be  preempted  from  paying  a  wage  higher than the
    47  prevailing wage.
    48    § 3. Section 232 of the labor law, as added by chapter 777 of the laws
    49  of 1971, is amended to read as follows:
    50    § 232. Overtime. An employee, employed by a contractor or employed  at
    51  a  covered development project, or at real property subject to a covered
    52  lease, who works more than eight hours in any one day or more than forty
    53  hours in any workweek shall be paid wages for such overtime  at  a  rate
    54  not  less  than  one-and-one-half times his prevailing basic cash hourly
    55  rate.

        S. 4630                             5
     1    § 4. Subdivisions 1, 2 and 3 of section 233 of the labor law, as added
     2  by chapter 777 of the laws of 1971, are amended and two new subdivisions
     3  5 and 6 are added to read as follows:
     4    1.  In  all  cases where service work is being performed pursuant to a
     5  contract, or covered lease, or covered development project therefor, the
     6  contractor, or covered developer, or covered  lessee  or  lessor,  shall
     7  keep  original payrolls or transcripts thereof, subscribed and confirmed
     8  by him as true, under penalties of perjury, showing the hours  and  days
     9  worked  by each employee, the craft, trade or occupation at which he was
    10  employed, and the wages paid.  A covered developer or covered lessee  or
    11  lessor  may  satisfy  this requirement by obtaining copies of employment
    12  records from a covered employer.
    13    2. Where the wages paid include sums which are not  paid  directly  to
    14  the  workmen  weekly and which are expended for supplements, the records
    15  required to be maintained shall include a record of such hourly  payment
    16  on  behalf  of such employees, the supplement for which such payment has
    17  been made, and the name and address of the person to whom  such  payment
    18  has  been made. In all such cases, the contractor, or covered developer,
    19  or covered lessee or lessor, shall keep a true and inscribed copy of the
    20  agreement under which such payments  are  made,  a  record  of  all  net
    21  payments  made  thereunder,  and  a  list  of  all persons for whom such
    22  payments are made.  A covered developer, or covered  lessee  or  lessor,
    23  may  satisfy  this requirement by obtaining copies of employment records
    24  from a covered employer.
    25    3. The records required to be maintained shall be kept on the site  of
    26  the  work during all of the time that work under the contract, or other-
    27  wise subject to the requirements of this section, is being performed.
    28    5. A covered developer, or covered lessee or lessor, shall  include  a
    29  requirement  in all leases, management agreements, or service contracts,
    30  and any subcontracts thereof, that any  covered  employer  shall  comply
    31  with  the recordkeeping requirements of this section. The covered devel-
    32  oper, or covered lessee or lessor shall obtain  such  records  from  any
    33  covered  employer  and  preserve  such records for a period of six years
    34  after the completion of the employee's work.
    35    6. Failure to maintain such records as required by this section  shall
    36  create a rebuttable presumption that the building service employees were
    37  not paid the wages and supplements required under this article.
    38    §  5.  Paragraph (f) of subdivision 1 of section 234 of the labor law,
    39  as added by chapter 777 of the laws of  1971,  is  amended  to  read  as
    40  follows:
    41    (f)  to  require a contractor, or covered developer, or covered lessee
    42  or lessor, to file with the fiscal officer a record of the wages actual-
    43  ly paid by such contractor, or covered developer, or covered  lessee  or
    44  lessor, to the employees and of their hours of work;
    45    § 6. The labor law is amended by adding a new section 235-a to read as
    46  follows:
    47    §  235-a.  Investigations,  hearings,  and private right of action for
    48  covered leases and covered development projects. 1. Whenever the  fiscal
    49  officer  has reason to believe that a building service employee perform-
    50  ing building service work in connection with a covered lease or  covered
    51  development  project  has  been paid less than the applicable prevailing
    52  wage and supplements, or upon receipt of a written complaint, the fiscal
    53  officer shall conduct a special investigation  to  determine  the  facts
    54  relating thereto.
    55    2.  If,  despite  the  requirements of law, the fiscal officer has not
    56  determined the prevailing wage as required in this article,  the  fiscal

        S. 4630                             6
     1  officer  shall determine in the proceeding before him the wages prevail-
     2  ing at the time the work was performed for the crafts, trades, or  occu-
     3  pations of the employees involved.
     4    3. In an investigation conducted under the provisions of this section,
     5  the  inquiry  of  the  fiscal officer shall not extend to work performed
     6  more than three years prior to: (a) the filing of the complaint; or  (b)
     7  the  commencement  of  the  investigation  upon the fiscal officer's own
     8  violation, whichever occurs first.
     9    4. (a) The investigation and hearing shall be expeditiously conducted,
    10  and upon the completion thereof, the fiscal officer shall determine  the
    11  issues  raised  and  shall  make and file an order in his office stating
    12  such determination, and forthwith serve personally or by mail a copy  of
    13  such  order  and determination together with a notice of filing upon all
    14  parties to the proceeding, and upon the financial officer of the  public
    15  agency involved.
    16    (b)  In  addition  to directing payment of wages found to be due, such
    17  order of the fiscal officer shall direct payment of  liquidated  damages
    18  in  an amount equal to the greater of two percent of the annual value of
    19  the financial assistance or covered lease, or two-tenths of a percent of
    20  the total value of the financial assistance or covered lease. Where  the
    21  fiscal  officer  is  the  commissioner, the penalty shall be paid to the
    22  commissioner for deposit in the state treasury. Where the fiscal officer
    23  is a city comptroller or other analogous officer, the penalty  shall  be
    24  paid to said officer for deposit in the city treasury.
    25    (c)  An  order  directing  the payment to specified employees of wages
    26  found to be due and unpaid shall include interest at  a  rate  not  less
    27  than  six  per  centum  per year, and not more than the rate of interest
    28  then in effect as prescribed by the superintendent of financial services
    29  pursuant to section fourteen-a of the banking law  per  annum  from  the
    30  time such wages should have been paid. In determining the rate of inter-
    31  est  to  be  imposed,  the fiscal officer shall consider the size of the
    32  employer's business, the good faith of the employer, the gravity of  the
    33  violation, the history of previous violations of the employer, successor
    34  or  substantially-owned  affiliated  entity,  any officer of the covered
    35  developer, covered lessee or lessor, or covered employer  who  knowingly
    36  participated  in  the violation of this article, and any of the partners
    37  if the covered developer, covered lessee or lessor, or covered  employer
    38  is a partnership, or any of the five largest shareholders of the covered
    39  developer,  covered lessee or lessor, or the covered employer, as deter-
    40  mined by the fiscal officer, and the failure to comply with  recordkeep-
    41  ing or other non-wage requirements.
    42    5.  (a) Provided that no proceeding for judicial review as provided in
    43  this section shall then be pending and the time for initiation  of  such
    44  proceeding  shall  have  expired, the fiscal officer shall file with the
    45  county clerk of the county where the employer resides or has a place  of
    46  business, the order of the fiscal officer containing the amount found to
    47  be due. The filing of such order shall have the full force and effect of
    48  a  judgment  duly docketed in the office of such clerk. The order may be
    49  enforced by and in the name of the fiscal officer in  the  same  manner,
    50  and  with  like effect, as that prescribed by the civil practice law and
    51  rules for the enforcement of a money judgment.
    52    (b) When a final determination has been made in favor of  a  complain-
    53  ant,  and  the  covered  developer, covered lessee or lessor, or covered
    54  employer found in violation of this article has failed to  make  payment
    55  as  required  by  the  order of the fiscal officer, and provided that no
    56  relevant proceeding for judicial review shall then be  pending  and  the

        S. 4630                             7
     1  time  for  initiation  of such proceeding shall have expired, the fiscal
     2  officer may file a copy of the order of the  fiscal  officer  containing
     3  the  amount found to be due with the county clerk of the county of resi-
     4  dence or place of business of any of the following:
     5    (i)  any substantially-owned affiliated entity or any successor of the
     6  covered developer, covered lessee or lessor, or covered employer;
     7    (ii) any of the partners if the covered developer, covered  lessee  or
     8  lessor,  or covered employer is a partnership or any of the five largest
     9  shareholders of the covered developer,  covered  lessee  or  lessor,  or
    10  covered employer, as determined by the fiscal officer; or
    11    (iii)  any officer of the covered developer, covered lessee or lessor,
    12  or covered employer who knowingly participated in the violation of  this
    13  article;  provided,  however,  that the fiscal officer shall within five
    14  days of the filing of the order provide notice thereof to the partner or
    15  top five shareholders or  successor  or  substantially-owned  affiliated
    16  entity.
    17    (c)  The notified party may contest the filing on the basis that it is
    18  not a partner or one of the five largest shareholders, an officer of the
    19  covered developer, covered lessee or lessor,  or  covered  employer  who
    20  knowingly  participated  in  the violation of this article, successor or
    21  substantially-owned affiliated entity. If, after reviewing the  informa-
    22  tion  provided  by  the  notified  party in support of such contest, the
    23  fiscal officer determines that the notified  party  is  not  within  the
    24  definitions described herein, the fiscal officer shall immediately with-
    25  draw his filing of the order.
    26    (d) The filing of such order shall have the full force and effect of a
    27  judgment  duly  docketed  in  the office of such clerk. The order may be
    28  enforced by and in the name of the fiscal officer in  the  same  manner,
    29  and  with  like  effect as that prescribed by the civil practice law and
    30  rules for the enforcement of a money judgment.
    31    6. When a final determination has been made and such determination  is
    32  in  favor  of  an  employee, such employee may, in addition to any other
    33  remedy provided by this article, institute an action  in  any  court  of
    34  appropriate  jurisdiction against the entity found to have violated this
    35  article, any substantially-owned affiliated entity, any officer  of  the
    36  covered  developer,  covered  lessee  or lessor, or covered employer who
    37  knowingly participated in the violation of this article, and any of  the
    38  partners  if the covered developer, covered lessee or lessor, or covered
    39  employer is a partnership or any of the five largest shareholders of the
    40  covered developer, covered lessee or lessor,  or  covered  employer,  as
    41  determined  by  the  fiscal  officer, for the recovery of the difference
    42  between the sum, if any, actually paid to him or her  by  the  aforesaid
    43  financial  officer pursuant to said order and the amount found to be due
    44  to him or her as determined by said order. Such action must be commenced
    45  within three years from the date of the filing of said order, or if said
    46  order is reviewed in a proceeding pursuant to article  seventy-eight  of
    47  the  civil  practice  law and rules, within three years after the termi-
    48  nation of such review proceeding.
    49    7. (a) Any person claimed to be aggrieved by a violation of this arti-
    50  cle shall have a cause of action in any court of competent  jurisdiction
    51  against  the  entity alleged to have violated this article, any substan-
    52  tially-owned affiliated entity, any officer of  the  covered  developer,
    53  covered lessee or lessor, or covered employer who knowingly participated
    54  in the violation of this article, and any of the partners if the covered
    55  developer,  covered  lessee or lessor, or covered employer is a partner-
    56  ship or any of the five largest shareholders of the  covered  developer,

        S. 4630                             8
     1  covered  lessee  or  lessor,  or  covered employer, as determined by the
     2  fiscal officer, for the recovery of the difference between the  sum,  if
     3  any,  actually  paid  to  him  or her by the aforesaid financial officer
     4  pursuant  to  said order and the amount found to be due to him or her as
     5  determined by said order.  The aggrieved party may seek damages  includ-
     6  ing  punitive damages, injunctive relief, and such other remedies as may
     7  be appropriate, unless such person has filed a complaint with the fiscal
     8  officer with respect to such claim. In an action brought by  a  building
     9  service  employee, if the court finds in favor of the employee, it shall
    10  award the employee, in addition to other relief, his or  her  reasonable
    11  attorneys' fees and costs.
    12    (b)  Investigation  by  the fiscal officer shall not be a prerequisite
    13  to, nor a bar against, a person  bringing  a  civil  action  under  this
    14  section.  Notwithstanding any inconsistent provision of subdivisions one
    15  through  six  of  this  section, where a complaint filed with the fiscal
    16  officer is dismissed, an aggrieved person shall maintain all  rights  to
    17  commence  a  civil action pursuant to this action as if no complaint had
    18  been filed.
    19    (c) No procedure or remedy set forth in this section is intended to be
    20  exclusive or a prerequisite for asserting a claim for relief to  enforce
    21  any  rights  hereunder  in  a  court  of  law. This section shall not be
    22  construed to limit an employee's right to bring a common  law  cause  of
    23  action for wrongful termination.
    24    (d)  Any judgement or court order awarding remedies under this section
    25  shall provide that if any amount remains unpaid upon the  expiration  of
    26  ninety  days following issuance of judgement, or ninety days after expi-
    27  ration of the time to appeal and no appeal is then pending, whichever is
    28  later, the total amount of judgement  shall  automatically  increase  by
    29  fifteen percent.
    30    (e)  In  any action instituted upon a wage claim by a building service
    31  employee in which the  employee  prevails,  the  court  may  allow  such
    32  employee,  in addition to ordinary costs, a reasonable sum not exceeding
    33  one hundred dollars for expenses, which may be taxed as costs. No assig-
    34  nee of a wage claim shall be benefitted by this provision.
    35    (f) Notwithstanding any other provision of law, an action  to  recover
    36  upon  liability  imposed  by  this  article must be commenced within the
    37  greater of six years from the date the cause of action accrued,  or  two
    38  years  from  the  time  the  plaintiff  or the person whom the plaintiff
    39  claims discovered the fraud, or could  with  reasonable  diligence  have
    40  discovered  it. The statute of limitations shall be tolled from the date
    41  an employee files a complaint with the fiscal officer or  the  date  the
    42  fiscal  officer  commences an investigation, whichever if earlier, until
    43  an order to comply issued by the fiscal officer becomes final, or  where
    44  the  fiscal officer does not issue an order, until the date on which the
    45  fiscal officer notifies  the  complainant  that  the  investigation  has
    46  concluded.
    47    8.  (a)  No  person  shall take any adverse action against an employee
    48  which penalizes an employee for, or is reasonably  likely  to  deter  an
    49  employee  from,  exercising  or  attempting  to exercise such employee's
    50  rights under this article or interfere with such employee's exercise  of
    51  rights under this article.
    52    (b)  Taking an adverse action includes, but is not limited to, threat-
    53  ening, intimidating, disciplining, discharging, demoting, suspending, or
    54  harassing an employee, reducing the hours of pay of an employee, inform-
    55  ing  another  employer  that  an  employee  has  engaged  in  activities
    56  protected  by this article, discriminating against the employee, includ-

        S. 4630                             9
     1  ing actions related to perceived immigration  status  or  work  authori-
     2  zation, and maintenance or application of an absence control policy that
     3  counts  protected  leave  as an absence that may lead to or result in an
     4  adverse action.
     5    (c) An employee need not explicitly refer to a provision of this arti-
     6  cle to be protected from an adverse action.
     7    (d)  A  casual  connection  may  be  established between the exercise,
     8  attempted exercise, or anticipated exercise of rights protected by  this
     9  article  and an employer's adverse action against an employee or a group
    10  of employees by indirect or direct evidence.
    11    (e) Retaliation is established when  it  is  shown  that  a  protected
    12  activity  was  a motivating factor for an adverse action, whether or not
    13  other factors motivated the adverse action.
    14    9. (a) When a final determination has  been  made  against  a  covered
    15  employer in favor of a complainant and the covered developer, or covered
    16  lessee  or  lessor, has made payment to the complainant of any wages and
    17  interest due the complainant and any civil penalty, and  providing  that
    18  no relevant proceeding for judicial review shall then be pending and the
    19  time  for  initiation of such proceeding shall have expired, the covered
    20  developer, or covered lessee or lessor, may file a copy of the order  of
    21  the fiscal officer containing the amount found to be due with the county
    22  clerk  of  the  county  of residence or place of business of the covered
    23  employer. The filing of such order shall have the full force and  effect
    24  of  a  judgment  duly docketed in the office of such clerk. The judgment
    25  may be docketed in favor of the covered developer, or covered lessee  or
    26  lessor,  who  may  proceed  as  a  judgment creditor against the covered
    27  employer for the recovery of all monies paid by the  covered  developer,
    28  or covered lessee or lessor, under such order.
    29    (b)  When  a  covered developer, or covered lessee or lessor, has made
    30  payment to a complainant of any wages and interest due  to  him  or  her
    31  because  of  a covered employer's violation of this article, the covered
    32  developer, or covered lessee or lessor, may bring suit  to  recover  all
    33  monies  paid by the covered developer, or covered lessee or lessor, from
    34  the covered employer.
    35    10. (a) When two judgments or final orders pursuant to the  provisions
    36  of  this  section  have been entered against a body, as defined by para-
    37  graph (b)  of  this  subdivision,  who  knowingly  participated  in  the
    38  violation  of this article within any consecutive six-year period deter-
    39  mining that such body who knowingly participated  in  the  violation  of
    40  this article has willfully failed to pay the prevailing wages in accord-
    41  ance  with  the  provisions  of this article, whether such failures were
    42  concurrent or consecutive and whether or not such  final  determinations
    43  concerning separate covered leases or awards of financial assistance are
    44  rendered  simultaneously,  such entity who knowingly participated in the
    45  violation of this article, or any successor is a corporation, any  offi-
    46  cer  of  such  corporation  who  knowingly participated in such failure,
    47  shall be ineligible to enter into covered leases with a public agency or
    48  receive financial assistance for a period of five years from the date of
    49  the second order, provided, however, that where  any  such  final  order
    50  involves  the falsification of payroll records or the kickback of wages,
    51  the body who knowingly participated in the  violation  of  this  article
    52  shall be ineligible to enter into covered leases or to receive financial
    53  assistance  for  a period of five years from the date of the first final
    54  order. Nothing in this subdivision shall be construed as  affecting  any
    55  provision  of  any  other  law or regulation relating to the awarding of
    56  financial assistance or entering into a  covered  lease  with  a  public

        S. 4630                            10
     1  agency.  The  industrial  commissioner  shall maintain a list of covered
     2  developers, covered lessees or lessors, or covered  employers,  who  are
     3  ineligible,  including their names, address, date, and duration of their
     4  ineligibility.  Such  list shall be updated and published as often as is
     5  necessary to keep it current.
     6    (b) For the purposes of paragraph (a) of this  subdivision,  the  term
     7  "body" shall mean a covered developer, covered lessee or lessor, covered
     8  employer, successor, or any substantially-owned affiliated entity of the
     9  covered developer, covered lessee or lessor, or covered employer, any of
    10  the  partners  if  the  covered  developer, covered lessee or lessor, or
    11  covered employer is a partnership, any of the five largest  shareholders
    12  of the covered developer, covered lessee or lessor, or covered employer,
    13  any  officer  of  the  covered  developer,  covered lessee or lessor, or
    14  covered employer.
    15    § 7. Subdivision 1 of section 237 of the  labor  law,  as  amended  by
    16  chapter  698  of the laws of 1988, is amended and a new subdivision 5 is
    17  added to read as follows:
    18    1. Subcontractors engaged for service work  by  a  contractor  or  its
    19  subcontractor and covered employers shall, upon receipt from the covered
    20  developer,  or covered lessee or lessor, contractor or its subcontractor
    21  of the schedule of wages and supplements specified in  the  contract  or
    22  the  prevailing  wage  schedule pursuant to this article, provide to the
    23  covered developer, covered lessee or lessor, contractor or  its  subcon-
    24  tractor  a  verified  statement  attesting  that the covered employer or
    25  subcontractor has received and  reviewed  such  schedule  of  wages  and
    26  supplements, and agrees that it will pay the applicable prevailing wages
    27  and will pay or provide the supplements specified therein. Such verified
    28  statement shall be filed in the manner described in subdivision three of
    29  this  section  for  subcontractors of a contractor or its subcontractor,
    30  and in the manner described in subdivision  five  of  this  section  for
    31  covered  employers.  It  shall  be  a  violation of this article for any
    32  covered developer, covered lessee or lessor, contractor or  its  subcon-
    33  tractor  to fail to provide for its subcontractor a copy of the schedule
    34  of wages and supplements specified in the  contract  or  the  prevailing
    35  wage schedule pursuant to this article.
    36    5.  Prior to receiving financial assistance or entering into a covered
    37  lease, or an extension, renewal, amendment, or modification of a covered
    38  lease, and annually  thereafter, every covered developer, covered lessee
    39  or lessor, or covered employer shall provide to the public agency  leas-
    40  ing or providing financial assistance and to the fiscal officer an annu-
    41  al  verified statement that all building service employees employed at a
    42  covered development project or at real property  subject  to  a  covered
    43  lease  by  the  covered  developer,  covered  lessee  or lessor, or by a
    44  covered employer to perform building service work will  be  and/or  have
    45  been  paid  the prevailing wage. Such verified statement shall include a
    46  record of the days and hours worked and the wages paid to each  building
    47  service employee employed at the covered development project, or at real
    48  property  subject  to a covered lease. Where the wages paid include sums
    49  which are not paid directly to the workmen weekly and which are expended
    50  for supplements, the statement shall include a  record  of  such  hourly
    51  payments  on  behalf  of  such employees, the supplement for which  such
    52  payment has been made, and the name and address of the  person  to  whom
    53  the  payment has been made. Such statement shall be verified by the oath
    54  of the chief executive or chief financial officer of the covered  devel-
    55  oper,  or  covered lessee or lessor, or the  designee of any such person
    56  that he or she has read such statements subscribed by  him  or  her  and

        S. 4630                            11
     1  knows  the contents thereof, and that the same is true of his or her own
     2  knowledge, except  with  respect  to  wages  and  supplements  owing  by
     3  contract  which  may  be  certified    upon  information  and  belief. A
     4  violation of any provision of the statement, or failure to  provide such
     5  statement,  shall  constitute  a  violation  of this section. The fiscal
     6  officer or a public agency leasing or providing financial assistance may
     7  inspect the records maintained pursuant to section two  hundred  thirty-
     8  three of this article to verify these statements.
     9    §  8. Subdivision 1 of section 238 of the labor law, as added by chap-
    10  ter 777 of the laws of 1971, is amended and a new subdivision 3 is added
    11  to read as follows:
    12    1. Any  contractor,  covered  developer,  covered  lessee  or  lessor,
    13  covered  employer,  or  subcontractor who shall upon his oath verify any
    14  statement required to be filed under this article which is known by  him
    15  to be false shall be guilty of perjury and punishable as provided by the
    16  penal law.
    17    3. In the event of a failure by a covered developer, covered lessee or
    18  lessor,  or covered employer to comply with the provisions of this arti-
    19  cle, the covered developer, covered lessee or lessor, or covered employ-
    20  er shall be provided with a written notice of failure to comply  by  the
    21  fiscal  officer  allowing ten days to cure the failure to comply. If the
    22  covered developer, covered lessee or lessor, or covered  employer  fails
    23  to  timely cure in addition to any other remedies available at law or in
    24  equity, the fiscal officer shall be  permitted  to  seek  the  following
    25  remedies:
    26    (a)  Suspend  the  payments of any financial assistance to the covered
    27  developer until the date of cure.
    28    (b) Failure to provide a required record or statement or to allow work
    29  place access may result in liquidated damages to an amount equal to  the
    30  greater  of  two percent of the annual value of the financial assistance
    31  or covered lease, or two-tenths of a percent of the total value  of  the
    32  financial assistance or covered lease.
    33    (c)  A  material breach of this article that continues for a period of
    34  six months or more shall allow the public agency to terminate the finan-
    35  cial assistance or covered lease.
    36    (d) Late filing of any report required under this article:  a  payment
    37  of  one thousand dollars per day for each day the report is late, for up
    38  to fourteen days. After fourteen days, the remedy in  paragraph  (b)  of
    39  this subdivision shall apply.
    40    (e) Where the fiscal officer is the commissioner, the penalty shall be
    41  paid  to  the  commissioner for deposit in the state treasury. Where the
    42  fiscal officer is a city comptroller or  other  analogous  officer,  the
    43  penalty shall be paid to said officer for deposit in the city treasury.
    44    §  9.  The  opening  paragraph and subdivision 4 of section 239 of the
    45  labor law, as added by chapter 777 of the laws of 1971, are  amended  to
    46  read as follows:
    47    [Every] Covered developers and covered lessees or lessors shall comply
    48  with the following provisions, and every contract for service work shall
    49  contain provisions by which the contractor agrees:
    50    (4) that the contract, covered lease, or grant of financial assistance
    51  may  be cancelled or terminated by the public agency, and all moneys due
    52  or to become due thereunder may be forfeited for a second or any  subse-
    53  quent  violation  of  the  terms  or  conditions  of this section of the
    54  contract.
    55    § 10. Section 239-a of the labor law, as added by chapter 777  of  the
    56  laws of 1971, is amended to read as follows:

        S. 4630                            12
     1    §  239-a.  Enforcement  of  article. If the fiscal officer, as defined
     2  herein, finds that any covered developer, covered lessee or  lessor,  or
     3  contractor on service work fails to comply with or evades the provisions
     4  of  this  article,  he  shall  present evidence of such noncompliance or
     5  evasion  to  the  public  agency  having  charge of such work, or having
     6  entered into a covered lease or provided financial  assistance  for  the
     7  covered development project, for enforcement.  Where such evidence indi-
     8  cates  a  noncompliance  or  evasion  on  the part of a subcontractor or
     9  covered employer, the contractor or covered developer, or covered lessee
    10  or lessor, shall be responsible for such noncompliance or evasion.    It
    11  shall  be  the duty of the public agency in charge of such service work,
    12  or who has entered into a covered lease or provided financial assistance
    13  for the covered development project, to enforce the provisions  of  this
    14  article.
    15    § 11. This act shall take effect immediately.
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