Bill Text: NY S05475 | 2023-2024 | General Assembly | Amended


Bill Title: Ensures that construction and fabrication done off of a public work site for specific use only in a public work project be compensated at the prevailing wage rate.

Spectrum: Moderate Partisan Bill (Democrat 15-3)

Status: (Introduced) 2024-05-28 - PRINT NUMBER 5475B [S05475 Detail]

Download: New_York-2023-S05475-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         5475--B

                               2023-2024 Regular Sessions

                    IN SENATE

                                      March 6, 2023
                                       ___________

        Introduced  by  Sens. JACKSON, ADDABBO, CHU, COMRIE, FERNANDEZ, HINCHEY,
          HOYLMAN-SIGAL, KAVANAGH, KRUEGER,  MATTERA,  MAYER,  PALUMBO,  PARKER,
          RAMOS,  SKOUFIS, STAVISKY, WEIK -- read twice and ordered printed, and
          when printed to be committed to the Committee on  Labor  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to  said committee -- recommitted to the Committee on Labor in accord-
          ance with Senate Rule 6,  sec.  8  --  reported  favorably  from  said
          committee  and  committed  to  the  Committee  on Finance -- committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee

        AN ACT to amend the labor law, in relation to inclusion of certain  off-
          site  custom fabrication as public work for the purposes of payment of
          prevailing wage; and providing for the repeal  of  certain  provisions
          upon expiration thereof

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Legislative findings and intent. The legislature finds  and
     2  declares  that  the  prevailing wage law was established to provide fair
     3  and equitable working conditions, wages and supplementary  benefits  for
     4  persons employed on public works construction projects.
     5    The  legislature  further  finds  and  declares that there are growing
     6  number of instances where custom fabricated materials are fabricated off
     7  the public work job site either to meet the unique specifications of the
     8  project subject to a  public  work  contract  or  for  the  contractor's
     9  convenience  or to evade the wage requirements imposed by the prevailing
    10  wage law.
    11    The legislature further finds and declares that in many instances  the
    12  prevailing  wage is not paid to persons involved in off-site fabrication
    13  of materials which are used specifically for public  works  projects  to
    14  the detriment of the workers at the site and the local economy where the
    15  public work is situated.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01720-04-4

        S. 5475--B                          2

     1    The  legislature  further  finds and declares that, in effect, various
     2  custom fabricated materials on local public works construction  projects
     3  are being entirely outsourced to workers at a location or locations away
     4  from the project site or in foreign jurisdictions, thereby intentionally
     5  evading the payment of the prevailing wage and benefit package by elimi-
     6  nating  the  employment  of  workers  at  the site of the project to the
     7  detriment of those workers and the local economy.
     8    It is the intent of the legislature that construction and  fabrication
     9  done  off  the  public  work  site  for specific use only in public work
    10  projects be compensated at the prevailing wage rate.
    11    § 2. Subdivision 3 of section 220 of  the  labor  law  is  amended  by
    12  adding a new paragraph (f) to read as follows:
    13    (f)  (i)  For  the purposes of this subdivision contractors or subcon-
    14  tractors engaged in custom fabrication shall not be regarded as material
    15  suppliers. For the purposes of this subdivision, a legal day's work  for
    16  which  the prevailing rate of wages for the New York county in which the
    17  public works project is situated shall be paid to laborers, workers  and
    18  mechanics  shall  include  custom  fabrication regardless of whether the
    19  custom fabrication occurs on-site, off-site or in  another  jurisdiction
    20  outside  the state.   It shall be a condition of the contract concerning
    21  all such custom fabrication work that the contractor or employer awarded
    22  the public work contract, except  where  the  project  includes  federal
    23  funding  that  triggers  federal  rules  for  wage requirements, and any
    24  subcontractor thereto shall covenant to pay the on-site prevailing  wage
    25  required  for  workers  at  the site of the public work project to those
    26  workers performing the custom fabrication where a  contract  for  custom
    27  fabrication  exceeds two hundred fifty thousand dollars or for contracts
    28  where the cumulative annual total of contracts performed by  the  custom
    29  fabricator  has  exceeded  five  hundred  thousand dollars. In addition,
    30  custom fabricators who choose to perform a public works contract exceed-
    31  ing two hundred fifty thousand dollars or who exceed five hundred  thou-
    32  sand  dollars  in public works contracts in total in a single year shall
    33  be required to pay the on-site prevailing wage to those workers perform-
    34  ing custom fabrication for subsequent public works contracts, regardless
    35  of the amount, thereafter for at least one year and shall register  with
    36  the  department  under  section two hundred twenty-i of this article and
    37  remain registered for at least one year in order to qualify  to  perform
    38  future  custom  fabrication  with regard to public works projects.  Each
    39  contractor or subcontractor who employs workers off-site for the  custom
    40  fabrication  work related to a public work project shall maintain certi-
    41  fied payrolls for those workers and provide such payrolls, with original
    42  certifications, to the department at least once every thirty days.   For
    43  the  purposes  of  this  subdivision the term "custom fabrication" shall
    44  include, but not be limited to, the fabrication of exterior or  interior
    45  wall  panel  systems,  the  fabrication  of woodwork, cases, cabinets or
    46  counters and the fabrication of electrical, plumbing, heating,  cooling,
    47  ventilation  or exhaust duct systems including the drafting of technical
    48  drawings and plans, and mechanical insulation  solely  and  specifically
    49  designed  and engineered for installation in the construction, repair or
    50  renovation of a building which is the subject of a contract to which the
    51  state, a department of the state, a board or officer  in  the  state,  a
    52  municipal  corporation,  a  public  benefit  corporation or a commission
    53  appointed pursuant to law is a party.
    54    (ii) The department of jurisdiction, as defined in subdivision three-a
    55  of this section and including any entity  to  whom  such  department  of
    56  jurisdiction  delegates  their authority, shall be required to report to

        S. 5475--B                          3

     1  the fiscal officer the intention to contract for custom, off-site fabri-
     2  cation of any materials on all  contracts,  regardless  of  the  amount,
     3  which  may  include  the employment of laborers, workers or mechanics in
     4  the application to the fiscal officer for the approval of such contract.
     5  The department of jurisdiction's report shall state the name and address
     6  of  the  off-site, custom fabricator, identify the custom materials that
     7  are being fabricated off-site and the quantity  thereof,  the  estimated
     8  and  actual  cost of the off-site fabrication, including the transporta-
     9  tion of the materials to the site of the work and the  estimated  number
    10  of  workers  employed to complete the custom fabrication at the off-site
    11  location. Upon receipt of the department of jurisdiction's  report,  the
    12  fiscal  officer  shall  make available said report to the public through
    13  its website and, similarly, maintain and publish on its website all data
    14  specified herein for each custom fabricator.
    15    (iii) The fiscal officer shall produce an annual report on the econom-
    16  ic impact to the state businesses and residents due to  off-site  fabri-
    17  cation.
    18    §  3.  This  act  shall take effect on the sixtieth day after it shall
    19  have become a law and shall apply only to those contracts put out to bid
    20  on or after such effective date; provided,  however,  that  subparagraph
    21  (i)  of  paragraph (f) of subdivision 3 of section 220 of the labor law,
    22  as added by section two of this act, shall expire and be deemed repealed
    23  upon the ruling of a court of competent jurisdiction that  the  require-
    24  ments  of  such  subparagraph  are  unenforceable on fabricators located
    25  outside the state; provided, further, that  the  commissioner  of  labor
    26  shall  notify  the  legislative bill drafting commission upon the occur-
    27  rence of such a court ruling in order that the commission  may  maintain
    28  an  accurate  and timely effective data base of the official text of the
    29  laws of the state  of  New  York  in  furtherance  of  effectuating  the
    30  provisions  of section 44 of the legislative law and section 70-b of the
    31  public officers law.
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