LBD01077-04-9
S. 2904--A 2
or transcripts thereof, subscribed and sworn to or affirmed by him or
her as true under the penalties of perjury, as may be deemed necessary
to adequately enforce the provisions of this article. Every contractor,
and sub-contractor, shall submit to the department of jurisdiction with-
in thirty days after issuance of its first payroll, and every thirty
days thereafter, a transcript of the original payroll record, as
provided by this article, subscribed and sworn to or affirmed as true
under the penalties of perjury. Any person who wilfully fails to file
such payroll records with the department of jurisdiction shall be guilty
of a class E felony. In addition, any person who wilfully fails to file
such payroll records within the time specified in this subparagraph
shall be subject to a civil penalty of up to one thousand dollars per
day.
(iv) The department of jurisdiction shall be required to collect and
maintain such payroll records at the times specified in subparagraph
(iii) of this paragraph. The original payrolls or transcripts shall be
preserved by the department of jurisdiction for five years from the date
of completion of the work on the awarded contract. The department of
jurisdiction as herein referred to shall be the department of the state,
board or officer in the state, or municipal corporation or commission or
board appointed pursuant to law, whose duty it is to prepare or direct
the preparation of the plans and specifications for a public work
project. EVERY CONTRACTOR AND SUB-CONTRACTOR, REGARDLESS OF WHETHER
SUCH CONTRACTOR OR SUB-CONTRACTOR MAINTAINS A REGULAR PLACE OF BUSINESS
IN NEW YORK STATE, SHALL MAINTAIN ON THE SITE OF THE WORK, OR ON THE
SITE WHERE WORKERS REPORT TO WORK, ORIGINAL SIGN-IN AND SIGN-OUT SHEETS
OR OTHER RECORDS REFLECTING THE ACTUAL DATES AND TIMES OF WORK, INCLUD-
ING ARRIVAL AND DEPARTURE TIMES, OF ALL LABORERS, WORKERS OR MECHANICS
EMPLOYED ON THE PUBLIC WORK, AND THE OCCUPATION IN WHICH THEY WORKED
DURING SUCH TIMES, AND SHALL PRODUCE SUCH RECORDS ON THE SITE OF THE
WORK, OR ON THE SITE WHERE WORKERS REPORT TO WORK, IMMEDIATELY, UNLESS
ADDITIONAL TIME IS GRANTED FOR GOOD CAUSE SHOWN, UPON RECEIPT OF A
REQUEST BY THE FISCAL OFFICER TO PRODUCE SUCH RECORDS. Each department
of jurisdiction shall designate in writing an individual employed by
such department responsible for the receipt, collection and review for
facial validity of payrolls. Said designation shall be filed with the
fiscal officer and posted in a conspicuous location at the project 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 department of jurisdiction must immediately designate
another individual employed by such department to fulfill such responsi-
bilities. In the event that a department of jurisdiction fails to name
an individual responsible for the receipt, collection and review for
facial validity of payrolls, as set forth above, then the individual so
responsible shall be the individual who is the chief policy-making indi-
vidual of such department of jurisdiction.
S 2. Paragraph c of subdivision 3-a of section 220 of the labor law,
as added by chapter 137 of the laws of 1985, is amended to read as
follows:
c. 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] OR OTHER RECORDS WHOSE
MAINTENANCE OR PRODUCTION IS REQUIRED PURSUANT TO PARAGRAPH A OF THIS
SUBDIVISION, for said public work or for any public or private work
S. 2904--A 3
performed by said person or corporation during the same period of time
as said public work. In the event said person or corporation fails to
provide the requested information within the allotted ten days OR FAILS
TO PRODUCE RECORDS AS REQUIRED PURSUANT TO PARAGRAPH A OF THIS SUBDIVI-
SION, the fiscal officer shall, within fifteen days, order the depart-
ment of jurisdiction to immediately withhold from payment to said person
or corporation up to twenty-five percent of the amount, not to exceed
one hundred thousand dollars, to be paid to said person or corporation
under the terms of the contract pursuant to which said public work is
being performed. Said amount withheld shall be immediately released upon
receipt by the department of jurisdiction of a notice from the fiscal
officer indicating that the request for records had been satisfied.
S 3. Subdivision 7 of section 220 of the labor law, as amended by
chapter 7 of the laws of 2008, is amended to read as follows:
7. Compliance investigations. The fiscal officer as herein defined
shall on a verified complaint in writing of any person interested or of
any employee organization pursuant to subdivision eight-d of this
section, and may on his own initiative cause a compliance investigation
to be made to determine whether the contractor or a subcontractor has
paid the prevailing rate of wages and prevailing practices for supple-
ments in the same trade or occupation in the locality within the state
where such public work is being performed, [or] the hours of labor
performed by the [workmen] WORKERS, laborers and mechanics employed on
such public work, [or both] HAS POSTED A LEGIBLE STATEMENT OF ALL WAGE
RATES AND SUPPLEMENTS AS REQUIRED PURSUANT TO PARAGRAPH A OF SUBDIVISION
THREE-A OF THIS SECTION OR HAS FAILED TO MAINTAIN OR PRODUCE RECORDS AS
REQUIRED PURSUANT TO PARAGRAPH A OF SUBDIVISION THREE-A OF THIS SECTION.
The fiscal officer or his agents, examiners and inspectors may examine
or cause to be examined the books and records pertaining to the rate of
wages paid and supplements provided to the laborers, [workmen] WORKERS
and mechanics on said public work [and], the hours of labor performed by
such laborers, [workmen] WORKERS and mechanics on said public work AND
THE POSTING OF A LEGIBLE STATEMENT, IN A PROMINENT AND ACCESSIBLE PLACE
ON THE SITE OF SAID PUBLIC WORK, OF ALL WAGE RATES AND SUPPLEMENTS AS
SPECIFIED IN THE CONTRACT TO BE PAID OR PROVIDED, AS THE CASE MAY BE,
FOR THE VARIOUS CLASSES OF MECHANICS, WORKERS OR LABORERS EMPLOYED ON
SAID PUBLIC WORK. The fiscal officer in such investigation shall be
deemed to be acting in a judicial capacity, and shall have the right to
issue subpoenas, administer oaths and examine witnesses. The enforcement
of a subpoena issued under this section shall be regulated by the civil
practice law and rules. Such fiscal officer shall make either an order,
determination or any other disposition, including but not limited to an
agreed upon settlement and/or stipulation, within six months from the
date of filing of such verified complaint, and where a compliance inves-
tigation is made without the filing of a verified complaint, within six
months from the date a compliance investigation is initiated by such
fiscal officer. Upon the making of said order or determination, or upon
arriving at such agreed upon settlement and/or stipulation, a copy ther-
eof shall be sent by certified mail, return receipt requested, by the
fiscal officer: (i) to the person and employee organization, if any, who
or which initiated the complaint, (ii) to the person or corporation, if
any, against whom the complaint was brought, and (iii) where a compli-
ance investigation is made without the filing of a complaint, to the
person who or which was the subject of the compliance investigation.
S. 2904--A 4
S 4. The second undesignated paragraph of subdivision 8 of section 220
of the labor law, as amended by chapter 7 of the laws of 2008, is
amended to read as follows:
In addition to directing payment of wages or supplements including
interest found to be due, such order may direct payment of a further sum
as a civil penalty in an amount not exceeding twenty-five percent of the
total amount found to be due. In assessing the amount of the penalty,
due consideration shall be given to the size of the employer's business,
the good faith of the employer, the gravity of the violation, the histo-
ry of previous violations and the failure to comply with recordkeeping
or other non-wage requirements. IN THE EVENT THAT A CONTRACTOR OR SUB-
CONTRACTOR ON PUBLIC WORKS IS FOUND TO HAVE WILLFULLY FAILED TO POST ALL
WAGE RATES AND SUPPLEMENTS OR TO MAINTAIN OR PRODUCE RECORDS AS REQUIRED
BY SUBDIVISION THREE-A OF THIS SECTION, SUCH A VIOLATION SHALL CONSTI-
TUTE A WILLFUL VIOLATION, AND THE FISCAL OFFICER MAY ENTER AN ORDER
DIRECTING SUCH CONTRACTOR OR SUB-CONTRACTOR TO PAY A SUM AS A CIVIL
PENALTY IN AN AMOUNT OF NOT MORE THAN FIVE HUNDRED DOLLARS FOR THE FIRST
SUCH NONCOMPLIANCE AND A SUM AS A CIVIL PENALTY IN AN AMOUNT OF NOT MORE
THAN ONE THOUSAND DOLLARS FOR EACH SUBSEQUENT NONCOMPLIANCE. SUCH CIVIL
PENALTY SHALL NOT BE IMPOSED IF SUCH CONTRACTOR OR SUB-CONTRACTOR PAYS A
FINE IMPOSED PURSUANT TO A MISDEMEANOR CONVICTION PURSUANT TO SUBDIVI-
SION THREE-A OF THIS SECTION. Where the fiscal officer is the commis-
sioner, the penalty shall be paid to the commissioner for deposit in the
state treasury. Where the fiscal officer is a city comptroller or other
analogous officer, the penalty shall be paid to said officer for deposit
in the city treasury.
S 5. Subparagraph 1 of paragraph a of subdivision 2 of section 220-b
of the labor law, as amended by chapter 547 of the laws of 1998, is
amended to read as follows:
(1) When any interested person shall file a written complaint with the
fiscal officer, as herein defined, alleging unpaid wages or supplements
due for labor performed on a public improvement for which a contract has
been entered into, and said labor is alleged to have been performed
within the two-year period immediately preceding the date of the filing
of said complaint, or if, on the fiscal officer's own initiative, unpaid
wages or supplements appear to be due, OR IF THE CONTRACTOR OR SUB-CON-
TRACTOR HAS FAILED TO POST A LEGIBLE STATEMENT OF WAGES OR TO MAINTAIN
OR PROVIDE RECORDS AS REQUIRED BY SUBDIVISION THREE-A OF SECTION TWO
HUNDRED TWENTY OF THIS ARTICLE, the fiscal officer shall immediately so
notify the financial officer of the civil division interested, or, if
there are insufficient moneys still due to the contractor or subcontrac-
tor to satisfy said wages and supplements, including interest and penal-
ty, the financial officer of another civil division which has entered or
subsequently enters into a public improvement contract with the contrac-
tor or subcontractor, who shall withhold from any payment due or earned
the contractor or subcontractor executing any public improvements,
sufficient moneys to satisfy said wages and supplements, including
interest at the rate provided herein, and any civil penalty that may be
assessed as provided herein, pending a final determination. The finan-
cial officer shall immediately confirm in writing to the fiscal officer
the amount of money withheld.
S 6. Subparagraph 1 of paragraph b of subdivision 3 of section 220-b
of the labor law, as amended by chapter 241 of the laws of 2002, is
amended to read as follows:
(1) When two final determinations have been rendered against a
contractor, subcontractor, successor, or any substantially-owned affil-
S. 2904--A 5
iated entity of the contractor or subcontractor, any of the partners if
the contractor or subcontractor is a partnership, any officer of the
contractor or subcontractor who knowingly participated in the violation
of this article, any of the shareholders who own or control at least ten
per centum of the outstanding stock of the contractor or subcontractor
or any successor within any consecutive six-year period determining that
such contractor, subcontractor, successor, or any substantially-owned
affiliated entity of the contractor or subcontractor, any of the part-
ners or any of the shareholders who own or control at least ten per
centum of the outstanding stock of the contractor or subcontractor, any
officer of the contractor or subcontractor who knowingly participated in
the violation of this article has wilfully failed to pay the prevailing
rate of wages or to provide supplements in accordance with this article,
whether such failures were concurrent or consecutive and whether or not
such final determinations concerning separate public work projects are
rendered simultaneously, such contractor, subcontractor, successor, or
any substantially-owned affiliated entity of the contractor or subcon-
tractor, any of the partners if the contractor or subcontractor is a
partnership or any of the shareholders who own or control at least ten
per centum of the outstanding stock of the contractor or subcontractor,
any officer of the contractor or subcontractor who knowingly partic-
ipated in the violation of this article shall be ineligible to submit a
bid on or be awarded any public work contract or subcontract with the
state, any municipal corporation or public body for a period of five
years from the second final determination, provided, however, that where
any such final determination involves the falsification of payroll
records or the kickback of wages or supplements, the contractor, subcon-
tractor, successor, or any substantially-owned affiliated entity of the
contractor or subcontractor, any partner if the contractor or subcon-
tractor is a partnership or any of the shareholders who own or control
at least ten per centum of the outstanding stock of the contractor or
subcontractor, any officer of the contractor or subcontractor who know-
ingly participated in the violation of this article shall be ineligible
to submit a bid on or be awarded any public work contract with the
state, any municipal corporation or public body for a period of five
years from the first final determination.
WHEN TWO FINAL DETERMINATIONS HAVE BEEN ENTERED AGAINST ANY OF THE
AFOREMENTIONED ENTITIES OR INDIVIDUALS WITHIN ANY CONSECUTIVE SIX-YEAR
PERIOD DETERMINING THAT SUCH ENTITY OR INDIVIDUAL HAS WILLFULLY FAILED
TO POST A STATEMENT OF WAGES OR HAS WILLFULLY FAILED TO MAINTAIN OR
PRODUCE RECORDS AS REQUIRED BY SUBDIVISION THREE-A OF SECTION TWO
HUNDRED TWENTY OF THIS ARTICLE, OR WHEN ONE SUCH DETERMINATION HAS BEEN
ENTERED DURING THE SAME CONSECUTIVE SIX-YEAR PERIOD AS A FINAL DETERMI-
NATION THAT ANY SUCH ENTITY OR INDIVIDUAL HAS WILLFULLY FAILED TO PAY
THE PREVAILING RATE OF WAGES OR SUPPLEMENTS IN ACCORDANCE WITH THIS
ARTICLE, AND SUCH DETERMINATIONS CONCERNED SEPARATE PUBLIC WORK
CONTRACTS AND WERE NOT CONCURRENT, ANY SUCH ENTITY OR INDIVIDUAL WHO
KNOWINGLY PARTICIPATED IN SUCH FAILURE SHALL BE INELIGIBLE TO SUBMIT A
BID ON OR BE AWARDED ANY PUBLIC WORK CONTRACT OR SUBCONTRACT WITH THE
STATE, ANY MUNICIPAL CORPORATION OR PUBLIC BODY FOR A PERIOD OF FIVE
YEARS FROM THE DATE OF THE SECOND FINAL DETERMINATION.
S 7. Subdivision 6 of section 231 of the labor law, as added by chap-
ter 777 of the laws of 1971, is amended to read as follows:
6. No later than the first day upon which work on said contract is
performed by any employee, the contractor shall post in a prominent and
accessible place on the site of the work a legible statement of the
S. 2904--A 6
wages to be paid to the [workmen] WORKERS employed thereon. ANY
CONTRACTOR WHO IS FOUND TO HAVE WILLFULLY FAILED TO POST SUCH STATEMENT
SHALL BE GUILTY OF A MISDEMEANOR, WHICH UPON CONVICTION THEREOF, SHALL
BE PUNISHABLE BY A FINE OF NOT LESS THAN FIVE HUNDRED DOLLARS NOR MORE
THAN ONE THOUSAND DOLLARS FOR EACH OFFENSE.
S 8. Subdivision 1 of section 233 of the labor law, as added by chap-
ter 777 of the laws of 1971, is amended to read as follows:
1. In all cases where service work is being performed pursuant to a
contract therefor, the contractor shall keep original payrolls or tran-
scripts thereof, subscribed and confirmed by him as true, under penal-
ties of perjury, showing the hours and days worked by each employee, the
craft, trade or occupation at which he was employed, and the wages paid.
EVERY CONTRACTOR SHALL MAINTAIN ORIGINAL SIGN-IN AND SIGN-OUT SHEETS OR
OTHER RECORDS REFLECTING THE ACTUAL DATES AND TIMES OF WORK, INCLUDING
ARRIVAL AND DEPARTURE TIMES, OF ALL BUILDING SERVICE EMPLOYEES EMPLOYED
ON THE SITE OF THE WORK, OR ON THE SITE WHERE WORKERS REPORT TO WORK,
AND SHALL PRODUCE SUCH RECORDS AT THE WORK SITE OR ON THE SITE WHERE
WORKERS REPORT TO WORK, IMMEDIATELY, UNLESS ADDITIONAL TIME IS GRANTED
FOR GOOD CAUSE SHOWN, UPON RECEIPT OF A REQUEST BY THE FISCAL OFFICER TO
PRODUCE SUCH RECORDS.
S 9. Paragraph (c) of subdivision 1 of section 234 of the labor law,
as added by chapter 777 of the laws of 1971, is amended to read as
follows:
(c) to examine the books, documents and records pertaining to the
wages paid to, and the hours of work performed by, service employees,
AND TO REQUIRE THE IMMEDIATE PRODUCTION OF RECORDS REQUIRED TO BE MAIN-
TAINED PURSUANT TO SUBDIVISION ONE OF SECTION TWO HUNDRED THIRTY-THREE
OF THIS ARTICLE;
S 10. Subdivision 1 of section 235 of the labor law, as added by chap-
ter 777 of the laws of 1971, is amended to read as follows:
1. Whenever the fiscal officer has reason to believe that a service
employee has been paid less than the wages stipulated in the contract,
or if such contract has no wage schedule attached thereto and the fiscal
officer has reason to believe that a service employee has been paid less
than the wages prevailing for his craft, trade or occupation, THAT A
CONTRACTOR HAS FAILED TO POST WAGES AS REQUIRED BY SUBDIVISION SIX OF
SECTION TWO HUNDRED THIRTY-ONE OF THIS ARTICLE OR FAILED TO MAINTAIN OR
PRODUCE RECORDS AS REQUIRED BY SECTION TWO HUNDRED THIRTY-THREE OF THIS
ARTICLE, the fiscal officer may, and upon receipt of a written complaint
from an employee employed thereon, shall conduct a special investigation
to determine the facts relating thereto.
S 11. Subdivision 7 of section 235 of the labor law, as amended by
chapter 547 of the laws of 1998, is amended to read as follows:
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
S. 2904--A 7
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 contracts are
rendered simultaneously, such contractor, subcontractor, successor, and
if the contractor, subcontractor, successor, or any substantially-owned
affiliated entity of the contractor or subcontractor, any of the part-
ners if the contractor or subcontractor is a partnership, or any of the
five largest shareholders of the contractor or subcontractor, any offi-
cer of the contractor or subcontractor who knowingly participated in the
violation of this article, or any successor is a corporation, any offi-
cer of such corporation who knowingly participated 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 contrac-
tor, subcontractor, successor, substantially-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 arti-
cle shall be ineligible to submit a bid on or be awarded any public
building service 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.
WHEN TWO FINAL DETERMINATIONS HAVE BEEN ENTERED AGAINST ANY OF THE
AFOREMENTIONED ENTITIES OR INDIVIDUALS WITHIN ANY CONSECUTIVE SIX-YEAR
PERIOD DETERMINING THAT SUCH ENTITY OR INDIVIDUAL HAS WILLFULLY FAILED
TO POST A STATEMENT OF WAGES AS REQUIRED BY SUBDIVISION SIX OF SECTION
TWO HUNDRED THIRTY-ONE OF THIS ARTICLE OR HAS WILLFULLY FAILED TO MAIN-
TAIN OR PRODUCE RECORDS AS REQUIRED BY SECTION TWO HUNDRED THIRTY-THREE
OF THIS ARTICLE, OR WHEN ONE SUCH DETERMINATION HAS BEEN ENTERED DURING
THE SAME CONSECUTIVE SIX-YEAR PERIOD AS A FINAL DETERMINATION THAT ANY
SUCH ENTITY OR INDIVIDUAL HAS WILLFULLY FAILED TO PAY THE PREVAILING
RATE OF WAGES OR SUPPLEMENTS IN ACCORDANCE WITH THIS ARTICLE, AND SUCH
DETERMINATIONS CONCERNED SEPARATE BUILDING CONTRACTS AND WERE NOT
CONCURRENT, ANY SUCH ENTITY OR INDIVIDUAL WHO KNOWINGLY PARTICIPATED IN
SUCH FAILURE SHALL BE INELIGIBLE TO SUBMIT A BID ON OR BE AWARDED ANY
PUBLIC BUILDING SERVICE CONTRACT OR SUBCONTRACT WITH THE STATE, ANY
MUNICIPAL CORPORATION OR PUBLIC BODY FOR A PERIOD OF FIVE YEARS FROM THE
DATE OF THE SECOND 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 12. This act shall take effect immediately.
