senate Bill S3361

Ensures consistency with the federal Davis Bacon Act for calculation of payments for supplements and reciprocity of debarments

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Bill Status


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

  • 01 / Feb / 2013
    • REFERRED TO LABOR
  • 21 / Jun / 2013
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 21 / Jun / 2013
    • ORDERED TO THIRD READING CAL.1602
  • 21 / Jun / 2013
    • PASSED SENATE
  • 21 / Jun / 2013
    • DELIVERED TO ASSEMBLY
  • 24 / Jun / 2013
    • REFERRED TO LABOR
  • 08 / Jan / 2014
    • DIED IN ASSEMBLY
  • 08 / Jan / 2014
    • RETURNED TO SENATE
  • 08 / Jan / 2014
    • REFERRED TO LABOR
  • 10 / Jun / 2014
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 10 / Jun / 2014
    • ORDERED TO THIRD READING CAL.1237
  • 11 / Jun / 2014
    • PASSED SENATE
  • 11 / Jun / 2014
    • DELIVERED TO ASSEMBLY
  • 11 / Jun / 2014
    • REFERRED TO LABOR

Summary

Authorizes the commissioner of labor to calculate proper payment of supplements by an annualization methodology utilized by the US department of labor under the Davis-Bacon Act of 1931; provides for the application of such method to be uniformly applied in every investigation.

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Bill Details

See Assembly Version of this Bill:
A7800
Versions:
S3361
Legislative Cycle:
2013-2014
Current Committee:
Assembly Labor
Law Section:
Labor Law
Laws Affected:
Amd §§220 & 220-b, Lab L; amd §103, Gen Muni L
Versions Introduced in Previous Legislative Cycles:
2011-2012: S4018A, S4018A
2009-2010: S4309, S4309

Sponsor Memo

BILL NUMBER:S3361

TITLE OF BILL: An act to amend the labor law and the general municipal
law, in relation to ensuring consistency with the federal Davis Bacon
Act for calculation of payments for supplements and reciprocity of
debarments

PURPOSE: Directs the Commissioner of Labor to direct that the proper
payment of supplements shall be calculated by employing the annualiza-
tion methodology utilized by the U.S. Department of Labor in such calcu-
lations under the Davis Bacon Act.

SUMMARY OF PROVISIONS:

Section 1 -- Adds a new subdivision 3-f to Section 220 of the Labor Law,
dealing with contracts involving public work, to prevent employers from
using public work as a disproportionate or exclusive source of funding
for benefits that are in fact continuous in nature and are part of the
regular compensation for all employee work whether public or private,
the Commissioner shall direct that the proper payment of supplements be
calculated using an annualization methodology. In order to protect work-
ers and ensure consistency of application, the Commissioner shall employ
the annualization methodology utilized by the U.S. Department of Labor
in calculations under the Davis Bacon Act of 1931 40 USC 276 et seq.

Section 2 - Adds a new subdivision 3 section 220-b of the labor law that
states when a contractor or subcontractor is debarred for violations of
the Davis Bacon Act of 1931 40 USC 3144 and 29 C.F.R 5.12,the contractor
or subcontractor and any firm, corporation, partnership or association
in which the person or entity owns or controls at least fifty-one per
centum, shall be ineligible to be awarded any public works contract with
the state, any municipal corporation, public benefit corporation or
public body for a period not to exceed the period of debarment deter-
mined or decided pursuant to the act. The department must provide writ-
ten notice to the person or entity immediately of the ineligibility and
provide them the opportunity to be heard by the department within thirty
calendar days of the written notice.

Section 3 -- Amends section 103 of the general municipal law adding new
subdivision 1-c that states that in determining the lowest bidder, the
officer, board or agency of any political subdivision or any district
charged with awarding of contracts, shall consider whether or not the
bidder is debarred pursuant to paragraph b of subdivision three of
section two hundred twenty-b of the labor law in making such determi-
nation of the award.

Section 4 -- Establishes the effective date.

JUSTIFICATION: The annualization method currently utilized by the
Commissioner of Labor for calculating supplemental benefits which
contractors are required to provide employees who work on private and

public work projects forces contractors to either switch from providing
employees with supplemental benefits (health insurance, pension, etc.)
to cash payments of supplemental benefits or to pay workers at a higher
overall supplement rate which includes time spent on private projects.
In essence, the methodology currently utilized by the Commissioner
extends the reach of the public work law to partially cover private work
as well. The rate for supplements on private work projects should be
determined through forces of the free market economy, rather than the
rates required for public work projects. The methodology prescribed by
the Commissioner of Labor frustrates the purpose of the prevailing wage
law by extending it beyond public work. The federal methodology for
annualization of benefits under the Davis Bacon Act is fair and does not
penalize employers for doing both public and private work. As such, this
legislation would clarify that the method utilized by the federal
government under the Davis Bacon Act is the method that will be applied
in this State.

LEGISLATIVE HISTORY: S.4018 (2011-12), Held in Labor S.4309/A.2143
(2009-10), Held in Labor A.5704 (2007-08), Held in Labor A.11455 (2006),
Referred to Labor

FISCAL IMPLICATIONS: No fiscal implications.

EFFECTIVE DATE: This act shall take effect on the one hundred twentieth
day after it shall have become a law and shall apply to all contracts
and agreements entered into on and after such date. Effective immediate-
ly, the addition, amendment and/or repeal of any rule or regulation
necessary for implementation of this act on its effective date is
authorized and directed to be made and completed on or before such
effective date.

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

                                  3361

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 1, 2013
                               ___________

Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
  when printed to be committed to the Committee on Labor

AN ACT to amend the labor law and the general municipal law, in relation
  to ensuring consistency with the federal Davis Bacon  Act  for  calcu-
  lation of payments for supplements and reciprocity of debarments

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

  Section 1. Section 220 of the labor law is amended  by  adding  a  new
subdivision 3-f to read as follows:
  3-F.  IN ORDER TO PREVENT EMPLOYERS FROM USING PUBLIC WORK, AS DEFINED
IN THIS ARTICLE, AS A DISPROPORTIONATE OR EXCLUSIVE  SOURCE  OF  FUNDING
FOR  BENEFITS  THAT ARE IN FACT CONTINUOUS IN NATURE AND ARE PART OF THE
REGULAR COMPENSATION FOR ALL EMPLOYEE WORK WHETHER  PUBLIC  OR  PRIVATE,
THE  COMMISSIONER  SHALL  DIRECT  THAT THE PROPER PAYMENT OF SUPPLEMENTS
SHALL BE CALCULATED BY EMPLOYING THE ANNUALIZATION METHODOLOGY  UTILIZED
BY THE UNITED STATES DEPARTMENT OF LABOR IN CALCULATIONS UNDER THE DAVIS
BACON ACT OF 1931, AS AMENDED, 40 USC. S 276(A)-276-A-7.
  S 2. Paragraph b of subdivision 3 of section 220-b of the labor law is
amended by adding a new subparagraph 3 to read as follows:
  (3) WHEN ANY CONTRACTOR OR SUBCONTRACTOR IS DEBARRED FOR VIOLATIONS OF
THE  DAVIS BACON ACT PURSUANT TO 40 U.S.C. 3144 AND 29 C.F.R. 5.12, SUCH
CONTRACTOR OR SUBCONTRACTOR, AND ANY FIRM, CORPORATION,  PARTNERSHIP  OR
ASSOCIATION  IN  WHICH  THE  PERSON  OR ENTITY OWNS OR CONTROLS AT LEAST
FIFTY-ONE PER CENTUM, SHALL BE INELIGIBLE TO BE AWARDED ANY PUBLIC WORKS
CONTRACT WITH THE  STATE,  ANY  MUNICIPAL  CORPORATION,  PUBLIC  BENEFIT
CORPORATION  OR  PUBLIC  BODY  FOR  A PERIOD NOT TO EXCEED THE PERIOD OF
DEBARMENT DETERMINED OR DECIDED PURSUANT TO  SUCH  ACT.  THE  DEPARTMENT
SHALL PROVIDE WRITTEN NOTICE TO THE PERSON OR ENTITY IMMEDIATELY OF SUCH
INELIGIBILITY  PURSUANT  TO  THIS SUBPARAGRAPH AND SUCH PERSON OR ENTITY
SHALL BE AFFORDED THE OPPORTUNITY TO BE HEARD BY THE  DEPARTMENT  WITHIN
THIRTY CALENDAR DAYS OF THE DEPARTMENT'S WRITTEN NOTICE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08400-01-3

S. 3361                             2

  S  3.  Section 103 of the general municipal law is amended by adding a
new subdivision 1-c to read as follows:
  1-C.  IN DETERMINING THE LOWEST RESPONSIBLE BIDDER, THE OFFICER, BOARD
OR AGENCY OF ANY  POLITICAL  SUBDIVISION  OR  OF  ANY  DISTRICT  THEREIN
CHARGED  WITH  AWARDING  OF CONTRACTS, SHALL CONSIDER WHETHER OR NOT THE
BIDDER, OR A PERSON OR ENTITY WITH AN INTEREST OF AT LEAST FIFTY-ONE PER
CENTUM IN THE BIDDER, IS DEBARRED PURSUANT TO PARAGRAPH B OF SUBDIVISION
THREE OF SECTION TWO HUNDRED TWENTY-B OF THE LABOR LAW, IN  MAKING  SUCH
DETERMINATION OF AWARD.
  S 4. This act shall take effect on the one hundred twentieth day after
it  shall  have become a law and shall apply to all contracts and agree-
ments entered into on and after such date.  Effective  immediately,  the
addition,  amendment  and/or  repeal of any rule or regulation necessary
for the implementation of this act on its effective date  is  authorized
and directed to be made and completed on or before such effective date.

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