Bill Text: NY S06265 | 2019-2020 | General Assembly | Amended
Bill Title: Ensures that utility employees, who currently fall outside the definition of an employee that may receive the prevailing wage, fall under such wage requirements.
Spectrum: Partisan Bill (Democrat 7-0)
Status: (Passed) 2020-02-07 - APPROVAL MEMO.102 [S06265 Detail]
Download: New_York-2019-S06265-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 6265--A 2019-2020 Regular Sessions IN SENATE May 31, 2019 ___________ Introduced by Sens. GIANARIS, BIAGGI, STAVISKY -- 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 AN ACT to amend the labor law, in relation to ensuring that utility employees receive the prevailing wage The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 230 of the labor law, as added by chapter 777 of 2 the laws of 1971, subdivision 1 as amended and subdivision 9 as added by 3 chapter 542 of the laws of 1984, subdivision 4 as amended by chapter 678 4 of the laws of 2007, and subdivisions 10, 11, 12, 13 and 14 as added by 5 chapter 547 of the laws of 1998, is amended to read as follows: 6 § 230. Definitions. As used in this article: 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 facility, or in connection with the transportation of office 10 furniture or equipment to or from such building or facility, or in 11 connection with the transportation and delivery of fossil fuel to such 12 building or facility, for a contractor under a contract with a public 13 agency which is in excess of one thousand five hundred dollars and the 14 principal purpose of which is to furnish services through the use of 15 building service employees or at a covered utility location. 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. 24 "Building service employee" or "employee" also does not include any 25 employee to whom the provisions of articles eight and [eight-a] eight-A 26 of this chapter are applicable. "Building service employee" or "employ- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD13100-03-9S. 6265--A 2 1 ee" also does not include any employee directly or indirectly performing 2 work for or on behalf of a business improvement district unless such 3 work would have been subject to the requirements of this article prior 4 to the effective date of a chapter of the laws of two thousand nineteen 5 that amended this subdivision. The preceding sentence shall not be 6 construed to affect any determination hereafter by the fiscal officer or 7 a court of competent jurisdiction as to the applicability or inapplica- 8 bility to such work of such requirements. 9 2. "Building service work" or "service work" means work performed by a 10 building service employee, but does not include work performed for a 11 contractor under a contract for the furnishing of services by radio, 12 telephone, telegraph or cable companies[; and any contract for public13utility services, including electric light and power, water, steam and14gas]. 15 3. "Public agency" means the state, any of its political subdivisions, 16 a public benefit corporation, a public authority or commission or 17 special purpose district board appointed pursuant to law, and a board of 18 education. 19 4. "Contractor" means any employer who employs employees to perform 20 building service work under a contract with a public agency and shall 21 include any of the contractor's subcontractors. 22 5. "Wage" includes: (a) basic hourly cash rate of pay; and (b) supple- 23 ments. The term "supplements" means fringe benefits including medical or 24 hospital care, pensions on retirement or death, compensation for inju- 25 ries or illness resulting from occupational activity, or insurance to 26 provide any of the foregoing, unemployment benefits, life insurance, 27 disability and sickness insurance, accident insurance, vacation and 28 holiday pay, costs of apprenticeship or other similar programs and other 29 bona fide fringe benefits not otherwise required by federal, state or 30 local law to be provided by the contractor or subcontractor, covered 31 utility or covered employer. 32 6. "Prevailing wage" means the wage determined by the fiscal officer 33 to be prevailing for the various classes of building service employees 34 in the locality. In no event shall the basic hourly cash rate of pay be 35 less than the statutory minimum wage established by article nineteen of 36 this chapter, or, in a city with a local law requiring a higher minimum 37 wage on city contract work, less than the minimum wage specified in such 38 local law. 39 7. "Locality" means the state, a town, city, village or other civil 40 division or area of the state as determined by the fiscal officer. The 41 fiscal officer may fix a different geographic area in determining the 42 locality for the prevailing basic hourly cash rate of pay and the local- 43 ity for prevailing supplements. 44 8. "Fiscal officer" means the industrial commissioner, except for 45 building service work performed by or on behalf of a city, or where the 46 covered utility location is located within a city with a population of 47 one million or more in which case "fiscal officer" means the comptroller 48 or other analogous officer of such city. 49 9. "Fossil fuel" shall mean coal, petroleum products and fuel gases. 50 "Coal" shall include bituminous coal, anthracite coal and lignite. "Fuel 51 gases" shall include but not be limited to methane, natural gas, lique- 52 fied natural gas and manufactured fuel gases. "Petroleum products" shall 53 include all products refined or rerefined from synthetic or crude oil or 54 oil extracted from other sources, including natural gas liquids. 55 Provided that nothing in this subdivision shall affect the exclusion for 56 public utility services set forth in subdivision two of this section.S. 6265--A 3 1 10. "Substantially-owned affiliated entity" shall mean the parent 2 company of the contractor, covered utility, or subcontractor, any 3 subsidiary of the contractor, covered utility, covered employer, or 4 subcontractor, or any entity in which the parent of the contractor, 5 covered utility, covered employer, or subcontractor owns more than fifty 6 percent of the voting stock, or an entity in which one or more of the 7 top five shareholders of the contractor, covered utility, covered 8 employer, or subcontractor individually or collectively also owns a 9 controlling share of the voting stock, or an entity which exhibits any 10 other indicia of control over the contractor, covered utility, covered 11 employer, or subcontractor or over which the contractor, covered utili- 12 ty, covered employer, or subcontractor exhibits control, regardless of 13 whether or not the controlling party or parties have any identifiable or 14 documented ownership interest. Such indicia shall include: power or 15 responsibility over employment decisions, access to and/or use of the 16 relevant entity's assets or equipment, power or responsibility over 17 contracts of the entity, responsibility for maintenance or submission of 18 certified payroll records, and influence over the business decisions of 19 the relevant entity. 20 11. "Entity" shall mean a partnership, association, joint venture, 21 company, sole proprietorship, corporation or any other form of doing 22 business. 23 12. "Parent company" shall mean an entity that directly controls the 24 contractor, covered utility, or subcontractor. 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, covered utility, or the contractor's parent company. 28 14. "Successor" shall mean an entity engaged in work substantially 29 similar to that of the predecessor, where there is substantial continui- 30 ty of operation with that of the predecessor. 31 15. "Covered utility" shall mean any entity other than a municipal 32 corporation that distributes electric light or power, or gas or steam 33 services at retail rates regulated by the public service commission 34 pursuant to a franchise granted under the provisions of section sixty- 35 eight or eighty-one of the public service law, and any substantially- 36 owned affiliated entity of such covered utility. 37 16. "Covered utility location" shall mean any real property, including 38 facilities used in the generation, storage, transmission, distribution 39 or sale of gas, electricity, steam, owned or leased by a covered utility 40 provided that where such covered utility location is an office space, 41 such office space shall be a covered utility location only if it is 42 larger than one hundred thousand square feet; and further provided that 43 if such office space is leased, such office space shall be a covered 44 utility location only if through a single agreement or multiple agree- 45 ments no less than fifty-one percent of the total square footage of the 46 office space is leased by the covered utility. 47 17. "Covered employer" shall mean any entity, other than a covered 48 utility that employs building service employees at a covered utility 49 location. 50 § 2. Subdivisions 1, 2, 3 and 6 of section 231 of the labor law, as 51 added by chapter 777 of the laws of 1971, are amended and a new subdivi- 52 sion 8 is added to read as follows: 53 1. Every contractor shall pay a service employee under a contract for 54 building service work a wage of not less than the prevailing wage in the 55 locality for the craft, trade or occupation of the service employee. 56 Covered utilities shall ensure that all building service employeesS. 6265--A 4 1 performing building service work at a covered utility location regard- 2 less of the employing entity are paid no less than the prevailing wage. 3 2. The obligation of a contractor or covered utility to pay prevailing 4 supplements may be discharged by furnishing any equivalent combinations 5 of fringe benefits or by making equivalent or differential payments in 6 cash under rules and regulations established by the fiscal officer. 7 3. Each contract for building service work shall contain as part of 8 the specifications thereof a schedule of the wages required to be paid 9 to the various classes of service employees on such work, and each such 10 contract shall further contain a provision obligating the contractor to 11 pay each employee on such work not less than the wage specified for his 12 craft, trade or occupation in such schedule. Any lease, contract for 13 management services or any other contract pertaining to the provision of 14 building services at a covered utility location entered into by a 15 covered utility shall contain the following provision: "All building 16 service employees shall be paid no less than the prevailing wage as 17 provided by the fiscal officer as described in section two hundred thir- 18 ty-four of the labor law. Any covered employer as defined in section two 19 hundred thirty of the labor law shall maintain all records relating to 20 the employment of building service workers as described in section two 21 hundred and thirty-three of the labor law which are to be provided to 22 the covered utility. This requirement shall apply to any covered utility 23 location as provided by article nine of the labor law." 24 6. No later than the first day upon which work on said contract is 25 performed by any employee, or within sixty days of the effective date of 26 a chapter of the laws of two thousand nineteen that amended this subdi- 27 vision the contractor or covered utility shall post in a prominent and 28 accessible place on the site of the work a legible statement of the 29 wages to be paid to the workmen employed thereon. 30 8. This section shall not preempt any public agency from establishing 31 higher minimum wages for employees performing building service work at 32 covered utilities. Nor shall any covered utility be preempted from 33 paying higher than the prevailing wage. 34 § 3. Section 232 of the labor law, as added by chapter 777 of the laws 35 of 1971, is amended to read as follows: 36 § 232. Overtime. An employee, employed at a covered utility location 37 or by a contractor, who works more than eight hours in any one day or 38 more than forty hours in any workweek shall be paid wages for such over- 39 time at a rate not less than one-and-one-half times his prevailing basic 40 cash hourly rate. 41 § 4. Section 233 of the labor law, as added by chapter 777 of the laws 42 of 1971, is amended to read as follows: 43 § 233. Record keeping. 1. In all cases where service work is being 44 performed pursuant to a contract therefor or at a covered utility 45 location, the contractor or covered utility shall keep original payrolls 46 or transcripts thereof, subscribed and confirmed by him as true, under 47 penalties of perjury, showing the hours and days worked by each employ- 48 ee, the craft, trade or occupation at which he was employed, and the 49 wages paid. A covered utility may satisfy this requirement by obtaining 50 copies of employment records from a covered employer. 51 2. Where the wages paid include sums which are not paid directly to 52 the workmen weekly and which are expended for supplements, the records 53 required to be maintained shall include a record of such hourly payment 54 on behalf of such employees, the supplement for which such payment has 55 been made, and the name and address of the person to whom such payment 56 has been made. In all such cases, the contractor or covered utilityS. 6265--A 5 1 shall keep a true and inscribed copy of the agreement under which such 2 payments are made, a record of all net payments made thereunder, and a 3 list of all persons for whom such payments are made. 4 3. The records required to be maintained shall be kept on the site of 5 the work during all of the time that work under the contract is being 6 performed or for three years after completion for a covered utility. 7 4. All records required to be maintained shall be preserved for a 8 period of three years after the completion of work. 9 5. A covered utility shall include a requirement in all leases and 10 contracts pertaining to the provision of building services that any 11 covered employer shall comply with the recordkeeping requirements of 12 this section. The covered utility shall obtain such records from any 13 covered employer and preserve such records for a period of three years 14 after the completion of the employee's work. 15 6. The requirements of this article shall apply to covered utilities 16 so long as they retain their status as covered utilities. 17 § 5. Paragraph (f) of subdivision 1 of section 234 of the labor law, 18 as added by chapter 777 of the laws of 1971, is amended to read as 19 follows: 20 (f) to require a contractor or covered utility to file with the fiscal 21 officer a record of the wages actually paid by such contractor or 22 covered utility to the employees and of their hours of work; 23 § 6. Subdivisions 1 and 5, the opening paragraph of subdivision 6, and 24 subdivisions 8 and 9 of section 235 of the labor law, subdivision 1 as 25 added by chapter 777 of the laws of 1971, subdivision 5 as amended and 26 subdivisions 8 and 9 as added by chapter 547 of the laws of 1998, para- 27 graph c of subdivision 5 as further amended by section 104 of part A of 28 chapter 62 of the laws of 2011, and the opening paragraph of subdivision 29 6 as amended by chapter 491 of the laws of 1999, are amended to read as 30 follows: 31 1. Whenever the fiscal officer has reason to believe that a service 32 employee at a covered utility location has been paid less than the 33 applicable prevailing wage or that a service employee has been paid less 34 than the wages stipulated in the contract, or if such contract has no 35 wage schedule attached thereto and the fiscal officer has reason to 36 believe that a service employee has been paid less than the wages 37 prevailing for his craft, trade or occupation, the fiscal officer may, 38 and upon receipt of a written complaint from an employee employed there- 39 on, shall conduct a special investigation to determine the facts relat- 40 ing thereto. 41 5. a. The investigation and hearing shall be expeditiously conducted 42 and upon the completion thereof the fiscal officer shall determine the 43 issues raised and shall make and file an order in his office stating 44 such determination and forthwith serve personally or by mail a copy of 45 such order and determination together with a notice of filing upon all 46 parties to the proceeding and upon the financial officer of the public 47 agency involved. 48 b. In addition to directing payment of wages found to be due, such 49 order of the fiscal officer may direct payment of a further sum as a 50 civil penalty in an amount not exceeding twenty-five percent of the 51 total amount found to be due. In assessing the amount of the penalty, 52 due consideration shall be given to the size of the employer's business, 53 the good faith of the employer, the gravity of the violation, the histo- 54 ry of previous violations of the employer, successor or substantially- 55 owned affiliated entity or any successor of the contractor, covered 56 utility, covered employer, or subcontractor, any officer of the contrac-S. 6265--A 6 1 tor, covered utility, covered employer, or subcontractor who knowingly 2 participated in the violation of this article, and any of the partners 3 if the contractor, covered utility, covered employer, or subcontractor 4 is a partnership or any of the five largest shareholders of the contrac- 5 tor, covered utility, covered employer, or subcontractor, as determined 6 by the fiscal officer, of such underpayment of wages or supplements, and 7 any officer of the contractor, covered utility, covered employer, or 8 subcontractor who knowingly participated in the violation of this arti- 9 cle, and the failure to comply with recordkeeping or other non-wage 10 requirements. Where the fiscal officer is the commissioner, the penalty 11 shall be paid to the commissioner for deposit in the state treasury. 12 Where the fiscal officer is a city comptroller or other analogous offi- 13 cer, the penalty shall be paid to said officer for deposit in the city 14 treasury. 15 c. If the order directs the payment to specified employees of wages 16 found to be due and unpaid, including interest at a rate not less than 17 six per centum per year and not more than the rate of interest then in 18 effect as prescribed by the superintendent of financial services pursu- 19 ant to section fourteen-a of the banking law per annum from the time 20 such wages should have been paid, the financial officer of such public 21 agency shall, upon the service to him of such order, pay to such employ- 22 ees from the trust money withheld the amounts specified in such order 23 and shall pay the civil penalty as provided herein, provided no review 24 proceeding pursuant to the provisions of article seventy-eight of the 25 civil practice law and rules is commenced within thirty days of the date 26 said order was filed in the office of the fiscal officer. If such review 27 is timely commenced, the money withheld shall remain in trust pending 28 final disposition of the review proceeding. In determining the rate of 29 interest to be imposed the fiscal officer shall consider the size of the 30 employer's business, the good faith of the employer, the gravity of the 31 violation, the history of previous violations of the employer, successor 32 or substantially-owned affiliated entity or any successor of the 33 contractor, covered utility, covered employer, or subcontractor, any 34 officer of the contractor, covered utility, covered employer, or subcon- 35 tractor who knowingly participated in the violation of this article, and 36 any of the partners if the contractor, covered utility, covered employ- 37 er, or subcontractor is a partnership or any of the five largest share- 38 holders of the contractor, covered utility, covered employer, or subcon- 39 tractor, as determined by the fiscal officer, and the failure to comply 40 with recordkeeping or other non-wage requirements. 41 When a final determination has been made and such determination is in 42 favor of an employee, such employee may, in addition to any other remedy 43 provided by this article, institute an action in any court of appropri- 44 ate jurisdiction against the person or corporation found to have 45 violated this article, any substantially-owned affiliated entity or any 46 successor of the contractor, covered utility, covered employer, or 47 subcontractor, any officer of the contractor, covered utility, covered 48 employer, or subcontractor who knowingly participated in the violation 49 of this article, and any of the partners if the contractor, covered 50 utility, covered employer, or subcontractor is a partnership or any of 51 the five largest shareholders of the contractor, covered utility, 52 covered employer, or subcontractor, as determined by the fiscal officer, 53 for the recovery of the difference between the sum, if any, actually 54 paid to him by the aforesaid financial officer pursuant to said order 55 and the amount found to be due him as determined by said order. Such 56 action must be commenced within three years from the date of the filingS. 6265--A 7 1 of said order, or if the said order is reviewed in a proceeding pursuant 2 to article seventy-eight of the civil practice law and rules, within 3 three years after the termination of such review proceeding. 4 8. a. When a final determination has been made in favor of a complain- 5 ant and the contractor, covered utility, covered employer, or subcon- 6 tractor found violating this article has failed to make payment as 7 required by the order of the fiscal officer, and provided that no rele- 8 vant proceeding for judicial review shall then be pending and the time 9 for initiation of such proceeding shall have expired, the fiscal officer 10 may file a copy of the order of the fiscal officer containing the amount 11 found to be due with the county clerk of the county of residence or 12 place of business of any of the following: 13 (i) any substantially-owned affiliated entity or any successor of the 14 contractor, covered utility, covered employer, or subcontractor; 15 (ii) any of the partners if the contractor, covered utility, covered 16 employer, or subcontractor is a partnership or any of the five largest 17 shareholders of the contractor or subcontractor, as determined by the 18 fiscal officer; or 19 (iii) any officer of the contractor, covered utility, covered employ- 20 er, or subcontractor who knowingly participated in the violation of this 21 article; provided, however, that the fiscal officer shall within five 22 days of the filing of the order provide notice thereof to the partner or 23 top five shareholder or successor or substantially-owned affiliated 24 entity. The notified party may contest the filing on the basis that it 25 is not a partner or five largest shareholders, an officer of the 26 contractor, covered utility, covered employer, or subcontractor who 27 knowingly participated in the violation of this article, successor or 28 substantially-owned affiliated entity. If, after reviewing the informa- 29 tion provided by the notified party in support of such contest, the 30 fiscal officer determines that the notified party is not within the 31 definitions described herein, the fiscal officer shall immediately with- 32 draw his filing of the order. 33 b. The filing of such order shall have the full force and effect of a 34 judgment duly docketed in the office of such clerk. The order may be 35 enforced by and in the name of the fiscal officer in the same manner, 36 and with like effect, as that prescribed by the civil practice law and 37 rules for the enforcement of a money judgment. 38 9. When a final determination has been made against a subcontractor or 39 covered employer in favor of a complainant and the contractor or covered 40 utility has made payment to the complainant of any wages and interest 41 due the complainant and any civil penalty, and providing that no rele- 42 vant proceeding for judicial review shall then be pending and the time 43 for initiation of such proceeding shall have expired, the contractor or 44 covered utility may file a copy of the order of the fiscal officer 45 containing the amount found to be due with the county clerk of the coun- 46 ty of residence or place of business of the subcontractor or covered 47 employer. The filing of such order shall have the full force and effect 48 of a judgment duly docketed in the office of such clerk. The judgment 49 may be docketed in favor of the contractor or covered utility who may 50 proceed as a judgment creditor against the subcontractor or covered 51 employer for the recovery of all monies paid by the contractor or 52 covered utility under such order. 53 § 7. Section 237 of the labor law is amended by adding a new subdivi- 54 sion 5 to read as follows: 55 5. A covered utility shall annually provide the fiscal officer a veri- 56 fied statement that all building service employees at any covered utili-S. 6265--A 8 1 ty location have been paid the prevailing wage. Such verified statement 2 shall include a record of the days and hours worked and the wages paid 3 to each building service employee employed at a covered utility 4 location. Where the wages paid include such sums which are not paid 5 directly to the workmen weekly and which are expended for supplements, 6 the statement shall include a record of such hourly payments on behalf 7 of such employees, the supplement for which such payment has been made, 8 and the name and address of the person to whom the payment has been 9 made. Such statement shall be verified by the oath of the chief execu- 10 tive or chief financial officer of the covered utility or the designee 11 of any such person that he or she has read such statements subscribed by 12 him or her and knows the contents thereof, and that the same is true of 13 his or her own knowledge, except to wages and supplements owing by 14 contract which may be certified upon information and belief. A violation 15 of any provision of the statement, or failure to provide such statement, 16 shall constitute a violation of this article. The fiscal officer may 17 inspect the records maintained pursuant to section two hundred thirty- 18 three of this article to verify these statements. 19 § 8. Section 238 of the labor law, as added by chapter 777 of the laws 20 of 1971, is amended to read as follows: 21 § 238. Penalties. 1. Any contractor, covered utility or subcontractor 22 who shall upon his oath verify any statement required to be filed under 23 this article which is known by him to be false shall be guilty of perju- 24 ry and punishable as provided by the penal law. 25 2. When a contract for service work contains as part thereof a sched- 26 ule of wages as provided for in this article, any contractor who, after 27 entering into such contract, and any subcontractor of such contractor 28 who fails to pay to any service employee the wages stipulated in such 29 wage schedule or any covered utility or covered employer who fails to 30 pay the prevailing wage is guilty of a misdemeanor and upon conviction 31 shall be punished for a first offense by a fine of five hundred dollars 32 or by imprisonment for not more than thirty days or by both fine and 33 imprisonment; for a second offense by a fine of one thousand dollars, 34 and for contractors in addition thereto the contract on which the 35 violation has occurred shall be forfeited; and no such contractor shall 36 be entitled to receive any sum, nor shall any officer, agent or employee 37 of the contracting public agency pay any such sum or authorize its 38 payment from the funds under his charge or control to such contractor 39 for work done upon the contract on which the contractor has been 40 convicted of a second offense. If the contractor, covered utility, 41 covered employer, or subcontractor is a corporation, any officer of such 42 corporation who knowingly permits the corporation to fail to make such 43 payment shall also be guilty of a misdemeanor and the criminal and civil 44 penalties herein shall attach to such officer upon conviction. 45 § 9. The opening paragraph of section 239 of the labor law, as added 46 by chapter 777 of the laws of 1971, is amended to read as follows: 47 Provisions in contracts prohibiting discrimination on account of race, 48 creed, color, national origin, age or sex. Every contract for service 49 work shall contain provisions by which the contractor agrees and in 50 which all covered utilities shall ensure: 51 § 10. This act shall take effect on the one hundred twentieth day 52 after it shall have become a law. Effective immediately, the addition, 53 amendment and/or repeal of any rule or regulation necessary for the 54 implementation of this act on its effective date are authorized to be 55 made and completed on or before such effective date.