Bill Text: NY S05679 | 2019-2020 | General Assembly | Amended


Bill Title: Relates to additional information provided to employees on public work contracts, including supplements.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Introduced) 2019-06-20 - SUBSTITUTED BY A2101A [S05679 Detail]

Download: New_York-2019-S05679-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         5679--A

                               2019-2020 Regular Sessions

                    IN SENATE

                                      May 10, 2019
                                       ___________

        Introduced  by  Sens. SAVINO, SKOUFIS -- read twice and ordered printed,
          and when printed to be committed to the Committee on Labor --  commit-
          tee  discharged, bill amended, ordered reprinted as amended and recom-
          mitted to said committee

        AN ACT to amend the labor law, in  relation  to  additional  information
          provided to employees on public work contracts

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

     1    Section 1. Paragraph (e) of subdivision 3 of section 220 of the  labor
     2  law,  as amended by chapter 7 of the laws of 2008, is amended to read as
     3  follows:
     4    (e) The commissioner shall ensure that all supplements due under  this
     5  article  shall  be  paid to or on behalf of an employee. (i) The commis-
     6  sioner shall require proof that the pension plan for which  any  supple-
     7  ment has been paid is qualified as a bona fide plan by the United States
     8  internal  revenue service. Acceptable proof shall be shown by submission
     9  of a determination letter issued by the United States  internal  revenue
    10  service.  (ii)  The  commissioner  shall  also require any contractor or
    11  subcontractor who provides any supplement which is part of a fund,  plan
    12  or  program  to furnish to the commissioner proof that the supplement is
    13  provided through a fund, plan or program and the amount  contributed  on
    14  the employees' behalf to such fund, plan or program.
    15    § 2. Subparagraphs (ii) and (iii) of paragraph a of subdivision 3-a of
    16  section 220 of the labor law, subparagraph (ii) as separately amended by
    17  chapters  7 and 63 of the laws of 2008 and subparagraph (iii) as amended
    18  by chapter 8 of the laws of 2008, are amended to read as follows:
    19    (ii) The contractor and every sub-contractor on public works contracts
    20  shall post in a prominent and accessible place on  the  site  where  the
    21  work  is performed a legible statement of all wage rates and supplements
    22  as specified in the contract to be paid or provided, as the case may be,
    23  for the various classes of mechanics, workers, or laborers  employed  on

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06045-05-9

        S. 5679--A                          2

     1  the  work.  Such  posted statement shall be written in plain English and
     2  titled, in lettering no smaller than two inches in height and two inches
     3  in width, with the phrase "Prevailing Rate of Wages". Such posted state-
     4  ment  shall  be constructed of materials capable of withstanding adverse
     5  weather conditions. The contractor and every sub-contractor shall notify
     6  all laborers, workers or mechanics in their employ  in  writing  of  the
     7  prevailing rate of wage and supplements for their particular job classi-
     8  fication.  Such  notification shall be given to every laborer, worker or
     9  mechanic upon hire, on their first pay stub  and  with  every  pay  stub
    10  thereafter,  and  shall  set  forth  the  amounts paid per hour for each
    11  supplement provided for his or  her  particular  job  classification  in
    12  accordance  with  the  schedules determined by the fiscal officer.  Such
    13  notification shall be provided in English and in the language identified
    14  by such laborer, worker, or mechanic as his or her primary language.  At
    15  the beginning of performance of every public works  contract,  and  with
    16  the  first  paycheck  after  July first of each year, the contractor and
    17  every sub-contractor shall notify all laborers, workers,  and  mechanics
    18  in their employ in writing, in English and in the language identified by
    19  each  laborer,  worker,  and mechanic as his or her primary language, in
    20  accordance with such form as is prescribed by the fiscal officer, of the
    21  telephone number and address for the fiscal officer.  The  notice  shall
    22  also  inform  each  laborer,  worker, or mechanic of his or her right to
    23  contact the fiscal officer or some other representative if, at any  time
    24  while  working  for the public works contractor or sub-contractor, he or
    25  she does not receive the proper prevailing rate of wages or  supplements
    26  for  his or her particular job classification that he or she is entitled
    27  to receive under the contract. If after investigation the fiscal officer
    28  finds that a contractor or sub-contractor has  (1)  failed  to  post  or
    29  provide  any  notice  required  under this subdivision, including having
    30  failed to provide any such notice in  the  language  identified  by  any
    31  laborer,  worker, or mechanic as his or her primary language, (2) failed
    32  to set forth the prevailing wage or the breakdown of supplements on  the
    33  pay stub, (3) [wilfully] willfully posted the incorrect prevailing wage,
    34  or  (4)  [wilfully] willfully set forth the incorrect prevailing wage or
    35  the amounts paid per hour for each  supplement  on  the  pay  stub,  the
    36  fiscal  officer[,]  shall, by an order which shall describe particularly
    37  the nature of the alleged violation, assess the contractor  or  sub-con-
    38  tractor  a  civil  penalty of not more than fifty dollars upon the first
    39  finding of a violation, two hundred fifty dollars upon the second  find-
    40  ing  of  a  violation,  and  five  hundred  dollars  for each subsequent
    41  violation. In assessing the amount of the penalty,  the  fiscal  officer
    42  shall give due consideration to the size of the employer's business, the
    43  good faith of the employer, and the gravity of the violation.
    44    The  fiscal  officer  shall  prepare  templates  that  comply with the
    45  notification requirements of this subparagraph. Each such template shall
    46  be dual-language, including English and  one  additional  language.  The
    47  fiscal  officer  shall  determine,  in  his  or  her  discretion,  which
    48  languages to provide in addition to English, based on the  size  of  the
    49  New York state population that speaks each language and any other factor
    50  that the fiscal officer shall deem relevant. All such templates shall be
    51  posted  on the fiscal officer's website and made available for download-
    52  ing by contractors and subcontractors.  When  any  laborer,  worker,  or
    53  mechanic  identifies  his  or her primary language and a template is not
    54  made available by the fiscal officer in that language, the contractor or
    55  subcontractor shall comply with  this  subparagraph  by  providing  such
    56  laborer,  worker,  or mechanic an English-language notice or acknowledg-

        S. 5679--A                          3

     1  ment. A contractor or subcontractor shall not be penalized for errors or
     2  omissions in the non-English portions of  any  notice  provided  by  the
     3  fiscal  officer.  The  fiscal  officer shall have discretion to waive or
     4  alter  the  notification requirements of this subparagraph for temporary
     5  help firms as defined in section nine hundred sixteen of this chapter.
     6    (iii) The contractor and  every  sub-contractor  shall  keep  original
     7  payrolls  or transcripts thereof, subscribed and sworn to or affirmed by
     8  him or her as true under the penalties of  perjury,  setting  forth  the
     9  names  and  addresses  and showing for each worker, laborer, or mechanic
    10  the hours and days worked, the occupations worked, the hourly wage rates
    11  paid and the supplements paid or provided. Such payrolls or  transcripts
    12  thereof  shall also set forth the amounts paid per hour for each supple-
    13  ment provided in accordance with the schedules determined by the  fiscal
    14  officer.  Where  the  contractor  or sub-contractor maintains no regular
    15  place of business in New York state and where the amount of the contract
    16  is in excess of twenty-five thousand dollars such payrolls shall be kept
    17  on the site of the work.  All other contractors or sub-contractors shall
    18  produce within five days on the site of the work and upon  formal  order
    19  of  the  commissioner  or  his  or  her  designated  representative such
    20  original payrolls or transcripts thereof, subscribed  and  sworn  to  or
    21  affirmed by him or her as true under the penalties of perjury, as may be
    22  deemed  necessary  to adequately enforce the provisions of this article.
    23  Every contractor, and sub-contractor, shall submit to the department  of
    24  jurisdiction within thirty days after issuance of its first payroll, and
    25  every  thirty  days  thereafter,  a  transcript  of the original payroll
    26  record, as provided by this article, subscribed and sworn to or affirmed
    27  as true under the penalties of perjury.   Every contractor  and  subcon-
    28  tractor  shall  submit  to  the commissioner, and to the fiscal officer,
    29  when the fiscal officer is a city comptroller or other  analogous  offi-
    30  cer, within thirty days of its first payroll, and annually thereafter, a
    31  transcript  of  the  original payroll record, subscribed and sworn to or
    32  affirmed as true under the penalties of perjury,  including,  documenta-
    33  tion  of  each  fund, plan, or program for which any supplement has been
    34  paid or provided. Such transcripts and additional information  shall  be
    35  provided  on  a  form  promulgated  by  the  department.  Any person who
    36  [wilfully] willfully fails to file such payroll records with the depart-
    37  ment of jurisdiction, commissioner, or the fiscal officer shall be guil-
    38  ty of a class E felony. In addition, any person who [wilfully] willfully
    39  fails to file such payroll records within the  time  specified  in  this
    40  subparagraph  shall  be subject to a civil penalty of up to one thousand
    41  dollars per day.
    42    § 3. Subdivision 6 of section 220 of the  labor  law,  as  amended  by
    43  chapter 230 of the laws of 1984, is amended to read as follows:
    44    6. The fiscal officer[,] may, and on the written request of any inter-
    45  ested  person  shall,  require any person or corporation performing such
    46  public work to file with such fiscal officer schedules  of  the  supple-
    47  ments  to  be provided and wages to be paid to such laborers, workmen or
    48  mechanics, including information regarding the amounts to  be  paid  per
    49  hour  for  each  supplement provided for each particular job classifica-
    50  tion. The fiscal officer may, and on the written request of  any  inter-
    51  ested party shall, require and furnish proof of any supplements provided
    52  or  amounts  paid  to or on behalf of laborers, workers, or mechanics in
    53  satisfaction  of  the  obligation  to  provide  supplements  under  this
    54  section. Any such person or corporation shall, within ten days after the
    55  receipt  of  written  notice  of  such requirement, file with the fiscal
    56  officer such schedules of wages and supplements. An employer may contest

        S. 5679--A                          4

     1  a determination by the fiscal officer under paragraphs a and c of subdi-
     2  vision five of this section. The  employer  must  allege  and  prove  by
     3  competent  evidence,  that the actual percentage of workers, laborers or
     4  mechanics is below the required thirty per centum and during the penden-
     5  cy  of  any such contest and until final determination thereof, the work
     6  in question shall proceed under the rate established by the fiscal offi-
     7  cer.
     8    § 4. This act shall take effect on the one hundred eightieth day after
     9  it shall have become a law and shall only apply to public work contracts
    10  entered into on or after such effective date.
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