senate Bill S126

Broadens scope of prevailing wage requirements for service employees and establishes criminal penalties for violations

download pdf

Sponsor

Co-Sponsors

Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
view actions

actions

  • 09 / Jan / 2013
    • REFERRED TO LABOR
  • 08 / Jan / 2014
    • REFERRED TO LABOR

Summary

Broadens scope of prevailing wage requirements for service employees and establishes criminal penalties for violations.

do you support this bill?

Bill Details

Versions:
S126
Legislative Cycle:
2013-2014
Current Committee:
Senate Labor
Law Section:
Labor Law
Laws Affected:
Amd Art 9 Art head, §§230, 231, 235, 237 & 238, Lab L
Versions Introduced in Previous Legislative Cycles:
2011-2012: S1110
2009-2010: S7096A

Sponsor Memo

BILL NUMBER:S126

TITLE OF BILL:
An act
to amend the labor law, in relation to prevailing wages for
service workers

PURPOSE:
This bill strengthens and clarifies Article 9 of the Labor Law to
ensure that workers employed to provide service work for the benefit
of public agencies are paid the prevailing wages to which the law
entitles them.

SUMMARY OF PROVISIONS:
Section 1 -
The bill renames Article 9 of the Labor Law "Prevailing Wage for
Service Employees" and makes changes in two basic areas:

Section 2 -
Definitions in §2.30 are clarified to ensure that they clearly
apply to all appropriate categories of service work for public
agencies:
(1) The terms "building service employee" and "building service work"
are changed to "service employee" and "service work" throughout the
article, in order to more accurately reflect the types of service
work commonly required by public agencies. The definition of "service
employee" is clarified to reflect the fact that service work often is
not restricted to building interiors, but can also include care,
maintenance and patrolling of outdoor areas, such as parking lots,
grounds and other outdoor work sites. The definition of "service
employee" is also clarified to explicitly include drivers, waiters,
cooks and other food service workers.
(2) The definition of "service work" is amended to delete the
exemption for public utility services, and to explicitly include
service work performed under a contract with any third party person
or entity acting in place of, on behalf of and for the benefit of a
public agency pursuant to a lease, permit, or other agreement. The
definition of "public agency" is amended to include public utility
services provided by a public authority or by a public utility
selling gas, electric or steam services at retail rates under a
franchise granted by the Public Service Commission (including any
substantially-owned entity affiliated with the public utility), and
any business improvement district with more than $1 million in total
annual revenue.
(3) The definition of "person" (from Article 8) is added to ensure
the law is enforceable against partnerships, joint ventures and other
forms of organization.

B. Safeguards against abuse are added and time·tested enforcement
tools are borrowed from Labor Law Article 8 (prevailing wages for
public work) to ensure compliance:
(1) A new subdivision 8 is added to §2.31 to clarify that prevailing
wage requirements cannot be evaded by any lease, permit or other
agreement with a public agency and a third party person or entity,
and that in any such arrangement the third party acts as the agent of
the public agency.


Any such responsible business practices including the payment of
prevailing wages to service
employees. The bill also extends this requirement to substantially
owned affiliated entities of such utilities, to ensure that (as with
third party entities) prevailing wage requirements are not avoided
through corporate sleight of hand.
(3) The amendments delete an exemption in the original bill for food
service concessions. Such arrangements will be subject to prevailing
wages on the same basis as other service work-i.e., whether the work
is covered service work that is performed for the benefit of the
public agency.
(4) The payroll reporting requirement in §237(2) is amended to provide
that the payroll records must be filed within 90 days after "any"
labor is performed, to clarify that this is a rolling reporting
requirement.

JUSTIFICATION:
Currently, the prevailing wage law for service employees lacks many of
the procedural safeguards and enforcement tools that have long been
incorporated into Article 8 combined with some ambiguous or outdated
definitions, this has left the door open for efforts to avoid paying
prevailing wages for service work performed for public agencies. This
bill would bolster the ability of enforcement agencies to ensure that
service employees receive the prevailing wages to which they are
entitled.

For almost forty years, Article 9 of the Labor Law has promoted the
public policy that workers who perform service work on behalf of
public agencies should be paid the prevailing wage for such
employment in their communities. Over that time, substantial
experience has been gained over what provisions of the law require
strengthening to prevent abuses. This bill clarifies the definitions
and applicability of Article 9 and adds provisions that are analogous
to several enforcement tools that have long been a part of Article 8,
in order to ensure that prevailing wages are paid for all appropriate
service work.

PRIOR LEGISLATIVE HISTORY:
2011-12: S.1110
2010: S.7096-A Passed the Senate, Delivered to Assembly.

FISCAL IMPLICATIONS:
Any fiscal implications are completely dependent on specific
agency/worksite circumstances, including when current contracts or
agreements expire or are up for renewal and what terms are negotiated
in the future.

EFFECTIVE DATE:
in 0
Ninetieth day after enactment, to apply to all contracts or other
agreements entered into, renewed, or extended on or after such date.
However, the amendments to subdivision 4 of section 230 of the labor
law made by section two of this act shall be subject to the
expiration and reversion of such subdivision pursuant to section 5 of
chapter 678 of the laws of 2007, as amended, when upon such date the
provisions of section four of this act shall take effect.
Furthermore, the amendments to subdivision 5 of section 231 of the


labor law made by section three of this act shall be subject to the
expiration and reversion of such subdivision pursuant to section 5 of
chapter 678 of the laws of 2007, as amended, when upon such date the
provisions of section five of this act shall take effect.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   126

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sen. PERALTA -- 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  prevailing  wages  for
  service workers

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The article heading of article 9 of the labor law, as added
by chapter 777 of the laws of 1971, is amended to read as follows:
             PREVAILING WAGE FOR [BUILDING] SERVICE EMPLOYEES
  S 2. Subdivisions 1, 2, 3, 4, 6, 8, 9 and 10 of  section  230  of  the
labor  law, subdivision 1 as amended and subdivision 9 as added by chap-
ter 542 of the laws of 1984, subdivisions 2, 3, 6  and  8  as  added  by
chapter 777 of the laws of 1971, subdivision 4 as amended by chapter 678
of  the  laws  of 2007 and subdivision 10 as added by chapter 547 of the
laws of 1998, are amended and a new subdivision 15 is added to  read  as
follows:
  1.  "[Building  service]  SERVICE  employee"  or  "employee" means any
person performing JANITORIAL,  FOOD  OR  SECURITY  SERVICE  WORK  FOR  A
CONTRACTOR UNDER CONTRACT WITH A PUBLIC AGENCY WHICH IS IN EXCESS OF ONE
THOUSAND  FIVE  HUNDRED DOLLARS AND THE PRINCIPAL PURPOSE OF WHICH IS TO
FURNISH SERVICES THROUGH THE USE OF  SERVICE  EMPLOYEES,  OR  ANY  OTHER
PERSON  PERFORMING work in connection with the care or maintenance of an
existing building, or in connection with the  transportation  of  office
furniture  or  equipment to or from such building, or in connection with
the transportation and delivery of fossil fuel to such building,  for  a
contractor  under  a contract with a public agency which is in excess of
one thousand five hundred dollars and the principal purpose of which  is
to furnish services through the use of [building] service employees.
  "[Building  service]  SERVICE employee" or "employee" includes, but is
not limited, to, watchman, guard,  doorman,  building  cleaner,  porter,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00340-01-3

S. 126                              2

handyman, janitor, gardener, groundskeeper, stationary fireman, elevator
operator  and starter, window cleaner, FOOD SERVICE WORKER, COOK, BAKER,
DISHWASHER, MEAT CUTTER, WAITER, DRIVER and occupations relating to  the
collection  of  garbage  or  refuse, and to the transportation of office
furniture and equipment, and  to  the  transportation  and  delivery  of
fossil  fuel but does not include clerical, sales, professional, techni-
cian and related occupations.
  "[Building service] SERVICE employee"  or  "employee"  also  does  not
include  any  employee  to  whom  the  provisions  of articles eight and
[eight-a] EIGHT-A of this chapter are applicable.
  2. "[Building service] SERVICE work" [or "service  work"]  means  work
performed  by  a  [building] service employee, but does not include work
performed for a contractor  under  a  contract  for  the  furnishing  of
services  by  radio,  telephone,  telegraph or cable companies[; and any
contract for public  utility  services,  including  electric  light  and
power,  water,  steam  and  gas]. "SERVICE WORK" SHALL ALSO INCLUDE WORK
PERFORMED UNDER A CONTRACT FOR THE BENEFIT OF A PUBLIC AGENCY  WITH  ANY
THIRD PARTY PERSON OR ENTITY ACTING IN PLACE OF, ON BEHALF OF OR FOR THE
BENEFIT  OF  SUCH  PUBLIC  AGENCY PURSUANT TO ANY LEASE, PERMIT OR OTHER
AGREEMENT BETWEEN SUCH THIRD PARTY PERSON OR ENTITY AND THE PUBLIC AGEN-
CY.
  3. "Public agency" means the state, any of its political subdivisions,
a public benefit corporation, a public  authority,  INCLUDING  A  PUBLIC
AUTHORITY  PROVIDING  PUBLIC  UTILITY SERVICES, or commission or special
purpose district board appointed pursuant  to  law,  [and]  a  board  of
education,  A  BUSINESS  IMPROVEMENT DISTRICT WITH MORE THAN ONE MILLION
DOLLARS PER YEAR IN TOTAL REVENUE, AND ANY PUBLIC UTILITY THAT  DISTRIB-
UTES  ELECTRIC  LIGHT OR POWER, OR GAS OR STEAM SERVICES AT RETAIL RATES
REGULATED BY THE PUBLIC  SERVICE  COMMISSION  PURSUANT  TO  A  FRANCHISE
GRANTED UNDER THE PROVISIONS OF SECTION SIXTY-EIGHT OR EIGHTY-ONE OF THE
PUBLIC  SERVICE  LAW,  AND  ANY SUBSTANTIALLY-OWNED AFFILIATED ENTITY OF
SUCH PUBLIC UTILITY.
  4. "Contractor" means any employer who employs  employees  to  perform
[building]  service work under a contract with a public agency and shall
include any of the contractor's subcontractors.
  6. "Prevailing wage" means the wage determined by the  fiscal  officer
to be prevailing for the various classes of [building] service employees
in  the locality. In no event shall the basic hourly cash rate of pay be
less than the statutory minimum wage established by article nineteen  of
this  chapter, or, in a city with a local law requiring a higher minimum
wage on city contract work, less than the minimum wage specified in such
local law.
  8. "Fiscal officer" means  the  industrial  commissioner,  except  for
[building]  service  work  performed by or on behalf of a city, in which
case "fiscal officer" means the comptroller or other  analogous  officer
of such city.
  9.  "Fossil  fuel" shall mean coal, petroleum products and fuel gases.
"Coal" shall include bituminous coal, anthracite coal and lignite. "Fuel
gases" shall include but not be limited to methane, natural gas,  lique-
fied natural gas and manufactured fuel gases. "Petroleum products" shall
include all products refined or rerefined from synthetic or crude oil or
oil  extracted  from  other  sources,  including  natural  gas  liquids.
[Provided that nothing in this subdivision shall  affect  the  exclusion
for  public  utility  services  set  forth  in  subdivision  two of this
section.]

S. 126                              3

  10. "Substantially-owned affiliated  entity"  shall  mean  the  parent
company  of the PUBLIC UTILITY, contractor or subcontractor, any subsid-
iary of the PUBLIC UTILITY, contractor or subcontractor, or  any  entity
in  which  the parent of the PUBLIC UTILITY, contractor or subcontractor
owns  more than fifty percent of the voting stock, or an entity in which
one or more of the top five shareholders of the PUBLIC UTILITY, contrac-
tor or subcontractor individually or collectively also owns  a  control-
ling  share  of  the voting stock, or an entity which exhibits any other
indicia of control over the PUBLIC UTILITY, contractor or  subcontractor
or  over  which the PUBLIC UTILITY, contractor or subcontractor exhibits
control, regardless of whether or not the controlling party  or  parties
have  any  identifiable  or  documented ownership interest. Such indicia
shall include: power or responsibility over employment decisions, access
to and/or use of the relevant entity's assets  or  equipment,  power  or
responsibility  over contracts of the entity, responsibility for mainte-
nance or submission of certified payroll records, and influence over the
business decisions of the relevant entity.
  15. "PERSON" SHALL MEAN A HUMAN BEING AND SHALL INCLUDE AN "ENTITY" AS
DEFINED IN THIS ARTICLE, INCLUDING, BUT NOT LIMITED TO A  CONTRACTOR  OR
SUBCONTRACTOR.
  S  3.  Subdivisions  1,  3,  4  and 5 of section 231 of the labor law,
subdivisions 1, 3 and 4 as added by chapter 777 of the laws of 1971  and
subdivision 5 as amended by chapter 678 of the laws of 2007, are amended
and a new subdivision 8 is added to read as follows:
  1.  Every contractor shall pay a service employee under a contract for
[building] service work a wage of not less than the prevailing  wage  in
the locality for the craft, trade or occupation of the service employee.
  3.  Each contract for [building] service work shall contain as part of
the specifications thereof a schedule of the wages required to  be  paid
to  the various classes of service employees on such work, and each such
contract shall further contain a provision obligating the contractor  to
pay  each employee on such work not less than the wage specified for his
craft, trade or occupation in such schedule.
  4. The public agency, or appropriate officer or agent  thereof,  whose
responsibility  it  is to prepare or direct the preparation of the plans
and specifications for a contract for  [building]  service  work,  shall
ascertain  from  such  plans  and  specifications the classifications of
employees to be employed on such work and shall  file  a  list  of  such
classifications  with  the  fiscal officer, together with a statement of
the work to be performed. The fiscal officer shall determine the crafts,
trades and occupations required for such work and shall make a  determi-
nation  of  the  wages required to be paid in the locality for each such
craft, trade or occupation. A schedule of such wages shall be annexed to
and form a part of the specifications for the contract prior to the time
of the advertisement for bids on such contract and shall constitute  the
schedule of wages referred to in subdivision three of this section.
  5.  Upon  the  award  of  a  contract for [building] service work by a
public agency other than a city, the  contracting  public  agency  shall
immediately furnish to the commissioner: (a) the name and address of the
contractor  to  whom  the  contract  was  awarded; (b) the date when the
contract was awarded; and (c) the approximate  consideration  stipulated
for in the contract.
  8. THE REQUIREMENTS OF THIS SECTION SHALL APPLY TO ANY PERSON OR ENTI-
TY  THAT  ENTERS INTO ANY LEASE, PERMIT OR OTHER AGREEMENT WITH A PUBLIC
AGENCY THAT INCLUDES THE PROVISION OF  SERVICE  WORK  BY  EMPLOYEES  WHO
WOULD BE REQUIRED TO BE PAID SCHEDULED WAGES PURSUANT TO THIS SECTION IN

S. 126                              4

THE  ABSENCE  OF SUCH AGREEMENT.   ANY THIRD PARTY PERSON OR ENTITY THAT
CONTRACTS FOR OR OTHERWISE ARRANGES FOR THE PAYMENT FOR  OR  PERFORMANCE
OF  SERVICE WORK FOR THE BENEFIT OF A PUBLIC AGENCY PURSUANT TO ANY SUCH
AGREEMENT SHALL DO SO AS AN AGENT OF THE PUBLIC AGENCY.  NO PUBLIC AGEN-
CY SHALL ENTER INTO ANY SUCH AGREEMENT WITH ANY PERSON OR ENTITY WITHOUT
(A)  PREPARATION OF AN AGREEMENT BETWEEN THE PUBLIC AGENCY AND THE THIRD
PARTY PERSON OR ENTITY THAT CLEARLY DELINEATES THE  RESPONSIBILITIES  OF
EACH  WITH  RESPECT  TO  REPORTING, FILING AND RETENTION OF PAYROLLS AND
OTHER DOCUMENTS, AND ANY OTHER ACTIONS REQUIRED PURSUANT TO  THIS  ARTI-
CLE,  AND  (B) RECEIPT BY THE PUBLIC AGENCY OF A WRITTEN ACKNOWLEDGEMENT
FROM SUCH THIRD PARTY PERSON OR ENTITY THAT THE PERSON OR ENTITY  AGREES
TO  UNDERTAKE  THOSE RESPONSIBILITIES AS THE AGENT OF THE PUBLIC AGENCY,
AND AFFIRMING SUCH PERSON OR ENTITY'S NONDELEGABLE OBLIGATION TO PAY NOT
LESS THAN THE WAGES SPECIFIED IN EACH APPLICABLE SCHEDULE.   SUCH  DOCU-
MENTS SHALL BE IN A FORM SATISFACTORY TO THE FISCAL OFFICER AND SHALL BE
SUBSCRIBED  AND  CONFIRMED  AS  REQUIRED BY SUCH OFFICER. SUCH DOCUMENTS
SHALL BE RETAINED AS PROVIDED IN SECTION  TWO  HUNDRED  THIRTY-THREE  OF
THIS  ARTICLE,  AND  A  COPY OF EACH SUCH DOCUMENT SHALL BE FILED BY THE
PUBLIC AGENCY WITH THE FISCAL OFFICER WITHIN TEN DAYS OF ITS  EXECUTION.
NOTWITHSTANDING ANY SUCH AGREEMENT, NOTHING IN THIS SUBDIVISION SHALL BE
DEEMED  TO  RELIEVE  THE PUBLIC AGENCY OF ITS RESPONSIBILITIES TO ENSURE
COMPLIANCE WITH THIS ARTICLE. ANY LEASE, PERMIT  OR  AGREEMENT  MADE  IN
CONTRAVENTION  OF  THIS  SUBDIVISION SHALL BE VOID AS A MATTER OF PUBLIC
POLICY.  THE FISCAL OFFICER MAY TAKE ALL  ACTIONS  NECESSARY  TO  ENSURE
COMPLIANCE  WITH THE PROVISIONS OF THIS ARTICLE AGAINST THE PUBLIC AGEN-
CY, ANY THIRD PARTY ACTING IN PLACE OF, ON BEHALF OF OR FOR THE  BENEFIT
OF  SUCH  PUBLIC AGENCY PURSUANT TO ANY LEASE, PERMIT OR OTHER AGREEMENT
BETWEEN SUCH THIRD PARTY PERSON OR ENTITY AND THE PUBLIC AGENCY, OR BOTH
THE PUBLIC AGENCY AND THIRD PARTY JOINTLY.
  S 4. Paragraphs a and c of subdivision 2 and subdivision 7 of  section
235  of the labor law, paragraph a of subdivision 2 and subdivision 7 as
amended and paragraph c of subdivision 2 as added by chapter 547 of  the
laws  of  1998, are amended and subdivision 2 is amended by adding a new
paragraph g to read as follows:
  a. At the start of such investigation the fiscal  officer  may  notify
the  financial officer of the public agency interested who shall, at the
direction of the fiscal officer, forthwith withhold from any payment due
to the contractor executing the contract sufficient money  to  safeguard
the  rights of the service employees and to cover the civil penalty that
may be assessed as provided herein, or, if there are insufficient moneys
still due or earned to the contractor or subcontractor to safeguard  the
rights  of the service employees and to cover the civil penalty that may
be assessed as provided herein, the financial officer of  another  civil
division  which  has  entered  or  subsequently enters into a [building]
service work contract with the contractor or  subcontractor,  who  shall
withhold  from any payment due the contractor or subcontractor executing
any [building] service work, sufficient moneys to safeguard  the  rights
of  the  service  employees  and  to cover the civil penalty that may be
assessed as provided herein.
  c. The notice of withholding shall provide  that  the  fiscal  officer
intends  to  instruct  the  financial  officer,  not  less than ten days
following service of the notice by mail, to withhold  sufficient  moneys
to  safeguard the rights of the service employees and to cover the civil
penalty that may be assessed as provided herein, from  any  payment  due
the  notified  party  under any [building] service work contract pending
final determination. The notice of withholding shall provide that within

S. 126                              5

thirty days following the date of the notice of withholding the notified
party may, contest the withholding on the basis that the notified  party
is  not a partner or one of the five largest shareholders of the subcon-
tractor or contractor, an officer of the contractor or subcontractor who
knowingly  participated in the violation of this article, a substantial-
ly-owned affiliated entity or successor. If the notified party fails  to
contest  the  notice  of  withholding,  or  if the fiscal officer, after
reviewing the  information  provided  by  the  notified  party  in  such
contest,  determines  that the notified party is a partner or one of the
five largest shareholders, a substantially-owned affiliated  entity,  an
officer of the contractor or subcontractor who knowingly participated in
the  violation  of  this article, or a successor, the fiscal officer may
instruct the financial officer to immediately withhold sufficient moneys
to safeguard the rights of the service employees and to cover the  civil
penalty that may be assessed as provided herein from any payment due the
notified  party  under  any [building] service work contract pending the
final determination.
  G. THE FISCAL OFFICER MAY REQUIRE ANY PERSON OR CORPORATION PERFORMING
SUCH PUBLIC WORK TO FILE WITH THE FISCAL  OFFICER  WITHIN  TEN  DAYS  OF
RECEIPT  OF SAID REQUEST, PAYROLL RECORDS, SWORN TO AS TO THEIR VALIDITY
AND ACCURACY, REQUESTED BY THE FISCAL OFFICER, FOR SAID SERVICE WORK  OR
FOR  ANY  PUBLIC OR PRIVATE WORK PERFORMED BY SAID PERSON OR CORPORATION
DURING THE SAME PERIOD OF TIME AS SAID SERVICE WORK. IN THE  EVENT  SAID
PERSON  OR CORPORATION FAILS TO PROVIDE THE REQUESTED INFORMATION WITHIN
THE ALLOTTED TEN DAYS, THE FISCAL OFFICER SHALL,  WITHIN  FIFTEEN  DAYS,
ORDER THE FINANCIAL OFFICER OF THE PUBLIC AGENCY TO IMMEDIATELY WITHHOLD
FROM  PAYMENT TO SAID PERSON OR CORPORATION UP TO TWENTY-FIVE PERCENT OF
THE AMOUNT, NOT TO EXCEED FIVE HUNDRED THOUSAND DOLLARS, TO BE  PAID  TO
SAID  PERSON  OR CORPORATION UNDER THE TERMS OF THE CONTRACT PURSUANT TO
WHICH SAID SERVICE WORK IS BEING PERFORMED.  SAID AMOUNT WITHHELD  SHALL
BE  IMMEDIATELY  RELEASED  UPON RECEIPT BY THE PUBLIC AGENCY OF A NOTICE
FROM THE FISCAL OFFICER INDICATING THAT THE REQUEST FOR RECORDS HAD BEEN
SATISFIED.
  7. When, pursuant to the provisions of this section, two final  orders
have been entered against a contractor, subcontractor, successor, or any
substantially-owned  affiliated  entity of the contractor or subcontrac-
tor, any of the partners if the contractor or subcontractor is  a  part-
nership,  any  of  the  five  largest  shareholders of the contractor or
subcontractor, any officer of the contractor or subcontractor who  know-
ingly  participated  in the violation of this article within any consec-
utive six-year period determining that such contractor or  subcontractor
and/or  its  successor,  substantially-owned  affiliated  entity  of the
contractor or subcontractor, any of the partners  or  any  of  the  five
largest  shareholders of the contractor or subcontractor, any officer of
the contractor  or  subcontractor  who  knowingly  participated  in  the
violation  of  this  article  has willfully failed to pay the prevailing
wages in accordance with the provisions of this  article,  whether  such
failures  were  concurrent  or consecutive and whether or not such final
determinations  concerning  separate  public  [building]  service   WORK
contracts  are  rendered simultaneously, such contractor, subcontractor,
successor, and if  the  contractor,  subcontractor,  successor,  or  any
substantially-owned  affiliated  entity of the contractor or subcontrac-
tor, any of the partners if the contractor or subcontractor is  a  part-
nership,  or  any  of the five largest shareholders of the contractor or
subcontractor, any officer of the contractor or subcontractor who  know-
ingly participated in the violation of this article, or any successor is

S. 126                              6

a  corporation,  any  officer  of such corporation who knowingly partic-
ipated in such failure, shall be ineligible to submit a  bid  on  or  be
awarded  any  public  [building] service work for a period of five years
from  the  date  of  the second order, provided, however, that where any
such final order involves the falsification of payroll  records  or  the
kickback  of  wages,  the contractor, subcontractor, successor, substan-
tially-owned affiliated entity of the contractor or  subcontractor,  any
partner  if  the  contractor or subcontractor is a partnership or any of
the five largest shareholders of the contractor  or  subcontractor,  any
officer of the contractor or subcontractor who knowingly participated in
the  violation of this article shall be ineligible to submit a bid on or
be awarded any public [building] service WORK  contract  or  subcontract
with the state, any municipal corporation or public body for a period of
five  years  from  the  date  of  the first final order. Nothing in this
subdivision shall be construed as affecting any provision of  any  other
law or regulation relating to the awarding of public contracts.
  S  5.  Subdivision  2  of  section 237 of the labor law, as amended by
chapter 698 of the laws of 1988, is amended to read as follows:
  2. A. Before payment is made by or on behalf of a public agency of any
sums due on account of a contract for service work, it shall be the duty
of the comptroller of the state or the financial officer of such  public
agency or other officer or person charged with the custody and disburse-
ment  of  the  state or corporate funds applicable to the contract under
and pursuant to which payment is made, to require the contractor to file
a statement in writing in form satisfactory to such  officer  certifying
to  the  amounts  then  due  and  owing from such contractor filing such
statement to or on behalf of any and all service employees for daily  or
weekly  wages  on  account  of  labor  performed upon the work under the
contract, setting forth therein the names of the persons whose wages are
unpaid and the amount due to or on behalf of  each  respectively,  which
statement so to be filed shall be verified by the oath of the contractor
that  he  or  she  has  read such statement subscribed by him or her and
knows the contents thereof, and that the same is true of his or her  own
knowledge.  THE  CONTRACTOR  SHALL  FILE  THESE PAYROLL RECORDS VERIFIED
UNDER OATH WITHIN NINETY DAYS AFTER ANY LABOR IS PERFORMED UPON THE WORK
UNDER CONTRACT, OR SUCH OTHER TIME AS THE FISCAL OFFICER MAY  AUTHORIZE.
ANY  PERSON  WHO  WILLFULLY  FAILS TO FILE SUCH PAYROLL RECORDS WITH THE
PUBLIC AGENCY SHALL BE GUILTY OF A CLASS E FELONY.
  B. EACH  PUBLIC  AGENCY  SHALL  DESIGNATE  IN  WRITING  AN  INDIVIDUAL
EMPLOYED  BY SUCH DEPARTMENT RESPONSIBLE FOR THE RECEIPT, COLLECTION AND
REVIEW FOR FACIAL VALIDITY OF A CONTRACTOR'S  CERTIFIED  PAYROLL  STATE-
MENT,  AS  SET  FORTH  IN THIS SUBDIVISION, BEFORE PAYMENT IS MADE. SAID
DESIGNATION SHALL BE FILED WITH THE  FISCAL  OFFICER  AND  POSTED  IN  A
CONSPICUOUS  LOCATION  AT  THE  WORK  SITE. IF THE DESIGNATED INDIVIDUAL
CANNOT PERFORM THE RECEIPT, COLLECTION AND REVIEW OF CERTIFIED  PAYROLLS
DUTIES  AS INDICATED ABOVE, FOR ANY REASON, INCLUDING BUT NOT LIMITED TO
REASSIGNMENT, PROMOTION OR SEPARATION FROM EMPLOYMENT, THE PUBLIC AGENCY
MUST IMMEDIATELY DESIGNATE ANOTHER INDIVIDUAL EMPLOYED BY SUCH AGENCY TO
FULFILL SUCH RESPONSIBILITIES. IN THE EVENT THAT A PUBLIC  AGENCY  FAILS
TO NAME AN INDIVIDUAL RESPONSIBLE FOR THE RECEIPT, COLLECTION AND REVIEW
FOR  FACIAL  VALIDITY OF CONTRACTORS' CERTIFIED PAYROLLS, THEN THE INDI-
VIDUAL  SO  RESPONSIBLE  SHALL  BE  THE  INDIVIDUAL  WHO  IS  THE  CHIEF
POLICY-MAKING OFFICER OF SUCH PUBLIC AGENCY.
  S  6. Subdivision 2 of section 238 of the labor law, as added by chap-
ter 777 of the laws of 1971, is amended to read as follows:

S. 126                              7

  2. A. When a contract for service work  contains  as  part  thereof  a
schedule  of  wages  as  provided  for in this article, any [contractor]
PERSON who, after entering into such contract[, and any subcontractor of
such contractor who] WILLFULLY fails to pay to any service employee  the
wages  stipulated  in such wage schedule [is guilty of a misdemeanor and
upon conviction shall be punished for a first offense by a fine of  five
hundred  dollars  or by imprisonment for not more than thirty days or by
both fine and imprisonment; for a second offense by a fine of one  thou-
sand dollars], and [in]:
  (I)  SUCH  FAILURE  RESULTS  IN  UNDERPAYMENTS  WHICH IN THE AGGREGATE
AMOUNT TO ALL  WORKERS  EMPLOYED  BY  THE  CONTRACTOR  OR  SUBCONTRACTOR
RESULTS  IN  AN  AMOUNT  LESS  THAN  TWENTY-FIVE  THOUSAND  DOLLARS, THE
CONTRACTOR OR SUBCONTRACTOR SHALL BE GUILTY OF A CLASS A MISDEMEANOR;
  (II) SUCH FAILURE RESULTS IN UNDERPAYMENTS,  WHICH  IN  THE  AGGREGATE
AMOUNT  TO  ALL  WORKERS  EMPLOYED  BY SUCH CONTRACTOR OR SUBCONTRACTOR,
RESULTS IN AN AMOUNT GREATER  THAN  TWENTY-FIVE  THOUSAND  DOLLARS,  THE
CONTRACTOR OR SUBCONTRACTOR SHALL BE GUILTY OF A CLASS E FELONY;
  (III)  SUCH  FAILURE  RESULTS IN UNDERPAYMENTS, WHICH IN THE AGGREGATE
AMOUNT TO ALL WORKERS EMPLOYED  BY  SUCH  CONTRACTOR  OR  SUBCONTRACTOR,
RESULTS  IN  AN  AMOUNT  GREATER  THAN ONE HUNDRED THOUSAND DOLLARS, THE
CONTRACTOR OR SUBCONTRACTOR SHALL BE GUILTY OF A CLASS D FELONY; OR
  (IV) SUCH FAILURE RESULTS IN UNDERPAYMENTS,  WHICH  IN  THE  AGGREGATE
AMOUNT  TO  ALL  WORKERS  EMPLOYED  BY SUCH CONTRACTOR OR SUBCONTRACTOR,
RESULTS IN AN AMOUNT GREATER THAN FIVE  HUNDRED  THOUSAND  DOLLARS,  THE
CONTRACTOR OR SUBCONTRACTOR SHALL BE GUILTY OF A CLASS C FELONY.
  B.  IN  addition  thereto  the  contract  on  which  the violation has
occurred shall be forfeited; and no such contractor shall be entitled to
receive any sum, nor  shall  any  officer,  agent  or  employee  of  the
contracting public agency pay any such sum or authorize its payment from
the  funds  under his charge or control to such contractor for work done
upon the contract on which the contractor has been convicted of a second
offense. If the contractor or subcontractor is a corporation, any  offi-
cer of such corporation who knowingly permits the corporation to fail to
make  such  payment  shall also be guilty of [a misdemeanor] THE OFFENSE
DEFINED IN PARAGRAPH A OF THIS SUBDIVISION and the  criminal  and  civil
penalties [herein] OF THIS SUBDIVISION shall attach to such officer upon
conviction.
  S 7. Severability. If any clause, sentence, paragraph, section or part
of  this  act  be  adjudged by any court of competent jurisdiction to be
invalid and after exhaustion of all further judicial review,  the  judg-
ment  shall  not affect, impair or invalidate the remainder thereof, but
shall be confined in its operation to the clause,  sentence,  paragraph,
section  or  part  of  this  act directly involved in the controversy in
which the judgment shall have been rendered.
  S 8. This act shall take effect on the ninetieth day  after  it  shall
have  become a law, and shall apply to all contracts or other agreements
entered into, renewed, or extended on or after such date.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.