S T A T E O F N E W Y O R K
________________________________________________________________________
398
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. JOHN -- read once and referred to the Committee
on Labor
AN ACT to amend the labor law, in relation to moneys withheld for bene-
fit of laborers
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraphs b, c, d and f of subdivision 2 of section 220-b
of the labor law, paragraphs b, c and f as amended by chapter 304 of the
laws of 1989 and paragraph d as amended by chapter 547 of the laws of
1998, are amended to read as follows:
b. Moneys withheld pursuant to this section shall be held by the
financial officer for the sole and exclusive benefit of the workers
employed on said public improvement and for payment of any civil penalty
that may be assessed as provided herein and shall not be used for any
other purpose except upon court order AND, ABSENT SUCH COURT ORDER, NO
PART OF THE MONEYS WITHHELD SHALL BE RELEASED TO THE CONTRACTOR OR
SUBCONTRACTOR PRIOR TO FULL RESTITUTION BEING MADE TO SUCH WORKERS.
ADDITIONALLY, THE AMOUNT OF WAGES AND SUPPLEMENTS, INCLUDING INTEREST AT
THE RATE PROVIDED IN THIS ARTICLE, FOUND TO BE DUE TO THE WORKERS
EMPLOYED ON SUCH PUBLIC IMPROVEMENT SHALL NOT BE REDUCED PURSUANT TO ANY
SETTLEMENT OR OTHER NEGOTIATION OF A WRITTEN COMPLAINT FILED PURSUANT TO
THIS SECTION. Any person, partnership, association, corporation or
governmental body who files a lien or commences a judicial proceeding
with respect to any monies withheld pursuant to this section shall noti-
fy the fiscal officer in writing of the lien or claim on or before the
date of filing of the lien or commencement of the judicial proceeding.
In any proceeding to obtain moneys withheld pursuant to this section by
any person, partnership, association, corporation or governmental body,
the fiscal officer shall have the right to appear and be heard.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02541-02-9
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c. The fiscal officer shall cause an investigation to be made to
determine whether any amounts are due to the laborers, workmen or
mechanics, or on their respective behalves, on such public improvement,
for labor performed after the commencement of the three-year period
immediately preceding the filing of the complaint or the commencement of
the investigation on his own initiative, as the case may be, and shall
order a hearing thereon at a time and place to be specified and shall
give notice thereof, together with a copy of such complaint, or a state-
ment of the facts disclosed upon such investigation, which notice shall
be served personally or by mail on all interested persons, including the
person complained against and upon the financial officer of the civil
division interested; such person complained against shall have an oppor-
tunity to be heard in respect to the matters complained of, at the time
and place specified in such notice, which time shall be not less than
five days from the service of said notice. The fiscal officer in such an
investigation shall be deemed to be acting in a judicial capacity and
shall have the rights 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 investigation and
hearing shall be expeditiously conducted, and upon such hearing and
investigation, the fiscal officer shall determine the issues raised
thereon and shall make and file an order in his office stating such
determination and forthwith serve a copy of such order, either
personally or by mail, together with notice of filing, upon the finan-
cial officer of the civil division interested, and the parties to such
proceedings and, if the fiscal officer be the comptroller or other anal-
ogous officer of a city, upon the commissioner. Such order shall direct
payment of wages or supplements found to be due, including interest at
the rate of interest then in effect as prescribed by the superintendent
of banks pursuant to section fourteen-a of the banking law, AND IN
COMPLIANCE WITH SUBDIVISION FIVE OF SUCH SECTION, per annum from the
date of the underpayment to the date of the payment TO THE WORKERS
EMPLOYED ON SUCH PUBLIC IMPROVEMENT.
d. In addition to directing payment of wages or supplements including
interest found to be due, the order of the fiscal officer 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 CIVIL penalty ONLY, 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 history of previous violations of the
employer or any successor or substantially-owned affiliated entity or
any of the partners if the contractor or subcontractor is a partnership
or any of the five largest shareholders of the contractor or subcontrac-
tor, as determined by the fiscal officer, and any officer of the
contractor or subcontractor who knowingly participated in the violation
of this article, and the failure to comply with recordkeeping or other
non-wage requirements. Upon the fiscal officer's determination of the
penalty, where the fiscal officer is the commissioner, 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.
f. If the financial officer of the civil division interested fails to
pay to the claimant the amount of the claim as determined by the fiscal
officer within ten days after the expiration of the contractor's time to
commence a proceeding for review of the fiscal officer's order or, if
such a proceeding has been commenced, within ten days after entry and
A. 398 3
service of a court order confirming the fiscal officer's order, the
civil division interested shall pay to the claimant interest on the
claim at the rate of interest then in effect as prescribed by the super-
intendent of banks pursuant to section fourteen-a of the banking law,
AND IN COMPLIANCE WITH SUBDIVISION FIVE OF SUCH SECTION, from the date
the financial officer was required to pay the claim as provided herein
to the date of payment; provided, however, this paragraph shall not
apply if the failure of the financial officer of the civil division
interested to pay the amount of the claim is pursuant to court order.
S 2. This act shall take effect immediately.