S T A T E O F N E W Y O R K
________________________________________________________________________
7072
2009-2010 Regular Sessions
I N A S S E M B L Y
March 19, 2009
___________
Introduced by M. of A. JOHN, NOLAN -- Multi-Sponsored by -- M. of A.
SCHROEDER -- read once and referred to the Committee on Labor
AN ACT to amend the labor law, in relation to hours, wages and supple-
ments for public work and providing for the repeal of certain
provisions upon expiration thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 2 of section 220 of the labor law, as amended
by chapter 678 of the laws of 2007, is amended to read as follows:
2. Each contract to which the state [or a public benefit corporation
or a municipal corporation or a commission appointed pursuant to law] is
a party, INCLUDING BUT NOT LIMITED TO, ANY CONTRACT, LEASE, GRANT, BOND,
COVENANT OR OTHER DEBT AGREEMENT ENTERED INTO DIRECTLY OR INDIRECTLY BY
THE STATE, AN INDUSTRIAL DEVELOPMENT AGENCY, ANY OTHER PUBLIC CORPO-
RATION AS DEFINED IN SECTION SIXTY-SIX OF THE GENERAL CONSTRUCTION LAW,
A PUBLIC AUTHORITY, OR A SIMILAR PUBLIC ENTITY, FINANCING IN WHOLE OR IN
PART, THE CONSTRUCTION, DEMOLITION, RECONSTRUCTION, EXCAVATION, REHABIL-
ITATION, REPAIR, RENOVATION OR ALTERATION OF A BUILDING OR AN IMPROVE-
MENT TO PROPERTY, and any contract for public work entered into by a
third party acting in place of, on behalf of and for the benefit of such
public entity pursuant to any lease, permit or other agreement between
such third party and the public entity, and which may involve the
employment of laborers, workers or mechanics shall contain a stipulation
that no laborer, worker or mechanic in the employ of the contractor,
subcontractor or other person doing or contracting to do the whole or a
part of the work contemplated by the contract shall be permitted or
required to work more than eight hours in any one calendar day or more
than five days in any one week except in cases of extraordinary emergen-
cy including fire, flood or danger to life or property. No such person
shall be so employed more than eight hours in any day or more than five
days in any one week except in such emergency. Extraordinary emergency
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10444-01-9
A. 7072 2
within the meaning of this section shall be deemed to include situations
in which sufficient laborers, workers and mechanics cannot be employed
to carry on public work expeditiously as a result of such restrictions
upon the number of hours and days of labor and the immediate commence-
ment or prosecution or completion without undue delay of the public work
is necessary in the judgment of the commissioner for the preservation of
the contract site and for the protection of the life and limb of the
persons using the same. Upon the application of any person interested,
the commissioner shall make a determination as to whether or not on any
public project or on all public projects in any area of this state,
sufficient laborers, workers and mechanics of any or all classifications
can be employed to carry on work expeditiously if their labor is
restricted to eight hours per day and five days per week, and in the
event that the commissioner determines that there are not sufficient
workers, laborers and mechanics of any or all classifications which may
be employed to carry on such work expeditiously if their labor is
restricted to eight hours per day and five days per week, and the imme-
diate commencement or prosecution or completion without undue delay of
the public work is necessary in the judgment of the commissioner for the
preservation of the contract site and for the protection of the life and
limb of the persons using the same, the commissioner shall grant a
dispensation permitting all laborers, workers and mechanics, or any
classification of such laborers, workers and mechanics, to work such
additional hours or days per week on such public project or in such
areas the commissioner shall determine. Whenever such a dispensation is
granted, all work in excess of eight hours per day and five days per
week shall be considered overtime work, and the laborers, workers and
mechanics performing such work shall be paid a premium wage commensurate
with the premium wages prevailing in the area in which the work is
performed. No such dispensation shall be effective with respect to any
public work unless and until the department of jurisdiction, as defined
in this section, certifies to the commissioner that such public work is
of an important nature and that a delay in carrying it to completion
would result in serious disadvantage to the public. Time lost in any
week because of inclement weather by employees engaged in the
construction, reconstruction and maintenance of highways outside of the
limits of cities and villages may be made up during that week and/or the
succeeding three weeks.
S 2. Subdivision 2 of section 220 of the labor law, as amended by
chapter 851 of the laws of 1947, is amended to read as follows:
2. Each contract to which the state [or a public benefit corporation
or a municipal corporation or a commission appointed pursuant to law] is
a party, INCLUDING BUT NOT LIMITED TO, ANY CONTRACT, LEASE, GRANT, BOND,
COVENANT OR OTHER DEBT AGREEMENT ENTERED INTO DIRECTLY OR INDIRECTLY BY
THE STATE, AN INDUSTRIAL DEVELOPMENT AGENCY, ANY OTHER PUBLIC CORPO-
RATION AS DEFINED IN SECTION SIXTY-SIX OF THE GENERAL CONSTRUCTION LAW,
A PUBLIC AUTHORITY, OR A SIMILAR PUBLIC ENTITY, FINANCING IN WHOLE OR IN
PART, THE CONSTRUCTION, DEMOLITION, RECONSTRUCTION, EXCAVATION, REHABIL-
ITATION, REPAIR, RENOVATION OR ALTERATION OF A BUILDING OR AN IMPROVE-
MENT TO PROPERTY, and which may involve the employment of laborers,
[workmen] WORKERS or mechanics shall contain a stipulation that no
laborer, [workman] WORKER or mechanic in the employ of the contractor,
subcontractor or other person doing or contracting to do the whole or a
part of the work contemplated by the contract shall be permitted or
required to work more than eight hours in any one calendar day or more
than five days in any one week except in cases of extraordinary emergen-
A. 7072 3
cy including fire, flood or danger to life or property. No such person
shall be so employed more than eight hours in any day or more than five
days in any one week except in such emergency. Extraordinary emergency
within the meaning of this section shall be deemed to include situations
in which sufficient laborers, [workmen] WORKERS and mechanics cannot be
employed to carry on public work expeditiously as a result of such
restrictions upon the number of hours and days of labor and the immedi-
ate commencement or prosecution or completion without undue delay of the
public work is necessary in the judgment of the [industrial] commission-
er for the preservation of the contract site and for the protection of
the life and limb of the persons using the same. Upon the application of
any person interested, the [industrial] commissioner shall make a deter-
mination as to whether or not on any public project or on all public
projects in any area of this state, sufficient laborers, [workmen] WORK-
ERS and mechanics of any or all classifications can be employed to carry
on work expeditiously if their labor is restricted to eight hours per
day and five days per week, and in the event that the [industrial]
commissioner determines that there are not sufficient [workmen] WORKERS,
laborers and mechanics of any or all classifications which may be
employed to carry on such work expeditiously if their labor is
restricted to eight hours per day and five days per week, and the imme-
diate commencement or prosecution or completion without undue delay of
the public work is necessary in the judgment of the [industrial] commis-
sioner for the preservation of the contract site and for the protection
of the life and limb of the persons using the same, the [industrial]
commissioner shall grant a dispensation permitting all laborers, [work-
men] WORKERS and mechanics, or any classification of such laborers,
[workmen] WORKERS and mechanics, to work such additional hours or days
per week on such public project or in such areas the [industrial]
commissioner shall determine. Whenever such a dispensation is granted,
all work in excess of eight hours per day and five days per week shall
be considered overtime work, and the laborers, [workmen] WORKERS and
mechanics performing such work shall be paid a premium wage commensurate
with the premium wages prevailing in the area in which the work is
performed. No such dispensation shall be effective with respect to any
public work unless and until the department of jurisdiction, as defined
in this section, certifies to the [industrial] commissioner that such
public work is of an important nature and that a delay in carrying it to
completion would result in serious disadvantage to the public. Time lost
in any week because of inclement weather by employees engaged in the
construction, reconstruction and maintenance of highways outside of the
limits of cities and villages may be made up during that week and/or the
succeeding three weeks.
S 3. Section 220 of the labor law is amended by adding a new subdivi-
sion 4-a to read as follows:
4-A. A. FOR THE PURPOSES OF THIS ARTICLE ONLY, AND SUBJECT TO THE
PROVISIONS OF PARAGRAPHS B AND C OF THIS SUBDIVISION, PUBLIC WORK OR
PUBLIC WORKS SHALL INCLUDE ALL CONSTRUCTION, DEMOLITION, RECONSTRUCTION,
EXCAVATION, REHABILITATION, REPAIRS, RENOVATION OR ALTERATION OF A
BUILDING OR IMPROVEMENT TO PROPERTY PERFORMED PURSUANT TO A CONTRACT OR
OTHER AGREEMENT ENTERED INTO DIRECTLY OR INDIRECTLY BY THE STATE OR
OTHER PUBLIC ENTITY OR PUBLIC CORPORATION GOVERNED BY SUBDIVISION TWO OF
THIS SECTION INVOLVING THE EMPLOYMENT OF LABORERS, WORKERS OR MECHANICS
WHERE THE STATE OR ANOTHER SUCH PUBLIC ENTITY OR PUBLIC CORPORATION
ISSUES BONDS OR PROVIDES GRANTS OR OTHER FINANCIAL SUBSIDIES TO FINANCE
SUCH PROJECTS IN WHOLE OR IN PART, OR ENTERS INTO AN AGREEMENT FOR THE
A. 7072 4
OWNERSHIP OR USE OF SUCH BUILDINGS OR PROPERTY WITH A PRIVATE OWNER OR
DEVELOPER. FOR PURPOSES OF THIS ARTICLE, PUBLIC WORK OR PUBLIC WORKS
SHALL BE LIMITED TO ALL CONSTRUCTION, DEMOLITION, RECONSTRUCTION, EXCA-
VATION, REHABILITATION, REPAIRS, RENOVATION OR ALTERATION OF A BUILDING
OR IMPROVEMENT TO PROPERTY PERFORMED PURSUANT TO THE AFORESAID CONTRACT
OR OTHER AGREEMENT AND SHALL NOT INCLUDE WORK PERFORMED SUBSEQUENT THER-
ETO.
B. THE PROVISIONS OF THIS ARTICLE SHALL NOT APPLY TO PRIVATELY OWNED
PROJECTS WHOSE NET PRESENT VALUE IS LESS THAN TWO HUNDRED THOUSAND
DOLLARS. WHERE THE VALUE OF DIRECTLY PROVIDED PUBLIC FUNDS AND THE NET
PRESENT VALUE OVER THE FIRST TEN YEARS OF A PROJECT UNDERTAKEN PURSUANT
TO SUCH CONTRACT OF ANY INDIRECT PUBLIC SUBSIDIES, WHICH SHALL INCLUDE
BUT NOT BE LIMITED TO INTEREST RATE RELIEF AND TAX EXEMPTIONS OR ABATE-
MENTS, BUT WHICH SHALL NOT INCLUDE THIRD-PARTY PAYMENTS, IS ONE-THIRD OR
LESS OF THE TOTAL VALUE OF SUCH PROJECT, THE PROVISIONS OF THIS ARTICLE
SHALL NOT APPLY UNLESS THE PROJECT IS SUBSTANTIALLY OF A PUBLIC NATURE
AS DETERMINED BY CONSIDERATION OF THE FOLLOWING FACTORS:
(1) THE PROJECT IS OWNED, LEASED AND/OR OPERATED BY A PUBLIC ENTITY;
(2) THE PROJECT IS NOT FUNDED NOR THE DEBT AMORTIZED, DIRECTLY OR
INDIRECTLY, IN WHOLE OR IN PART, BY PRIVATE FUNDS, AND THE FINANCIAL
RISKS OF THE PROJECT ARE WITH A PUBLIC ENTITY;
(3) THE PROJECT IS CONSTRUCTED PURSUANT TO A CONTRACT REQUIRED TO BE
PUBLICLY BID PURSUANT TO LAW, AND THE DESIGN AND CONSTRUCTION OF THE
PROJECT IS SUBSTANTIALLY CONTROLLED BY A PUBLIC ENTITY;
(4) THE PROJECT IS SUBSTANTIALLY FOR A PUBLIC PURPOSE, BENEFIT, ENJOY-
MENT OR USE.
C. THE PUBLIC ENTITY OR PUBLIC CORPORATION WHICH IS INVOLVED IN A
PROJECT COVERED BY THIS ARTICLE SHALL DETERMINE, IN THE FIRST INSTANCE,
WHETHER THE PROVISIONS OF THIS ARTICLE APPLY. ON ANY PROJECT OF TOTAL
VALUE OF TWO HUNDRED FIFTY THOUSAND DOLLARS OR MORE, OR ON A PROJECT NOT
REQUIRED TO BE PUBLICLY ADVERTISED AND COMPETITIVELY BID PURSUANT TO ANY
APPLICABLE STATUTE, THE PUBLIC ENTITY OR PUBLIC CORPORATION SHALL
PROVIDE NOTICE TO THE COMMISSIONER AND THE COMMISSIONER OF ECONOMIC
DEVELOPMENT OF THE APPLICABILITY OF THIS ARTICLE. WITHIN THIRTY DAYS OF
RECEIVING SUCH NOTICE, THE COMMISSIONER SHALL AFFIRM OR OVERRULE SUCH
DETERMINATION, NOTIFY THE PUBLIC ENTITY OR PUBLIC CORPORATION, AND
PUBLISH THE DECISION IN THE STATE REGISTER. WITHIN FIFTEEN DAYS OF SUCH
PUBLICATION, ANY PARTY WITH A DIRECT INTEREST IN THE APPLICATION OF THIS
ARTICLE, INCLUDING THE PUBLIC ENTITY OR PUBLIC CORPORATION INVOLVED, MAY
APPEAL THE DECISION OF THE COMMISSIONER TO AN IMPARTIAL ARBITRATION
PROCESS ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION. SUCH ARBI-
TRATION PROCESS SHALL BE ADMINISTERED IN AN EXPEDITED FASHION AND
COMPLETED WITHIN THIRTY DAYS AFTER THE RECEIPT OF A NOTICE OF APPEAL
UNDER THE RULES ESTABLISHED BY THE AMERICAN ARBITRATION ASSOCIATION. THE
THIRTY-DAY TIME PERIOD FOR COMPLETION OF THE ARBITRATION MAY BE EXTENDED
BY THE ARBITRATOR FOR GOOD CAUSE. THE DETERMINATION OF THE ARBITRATOR
SHALL BE FINAL, SUBJECT TO REVIEW IN ACCORDANCE WITH ARTICLE
SEVENTY-FIVE OF THE CIVIL PRACTICE LAW AND RULES. ALL DETERMINATIONS
MADE PURSUANT TO THIS PARAGRAPH SHALL BE COMPLETED PRIOR TO ADVERTISING
FOR COMPETITIVE BIDS OR, WHERE A CONTRACT IS NOT REQUIRED TO BE PUBLICLY
BID, PRIOR TO AWARD OF ANY CONTRACT. THE COMMISSIONER SHALL MAINTAIN AN
INDEX OF ALL SUCH DETERMINATIONS. IN THE EVENT THAT THE PRIVATE OWNER OR
THE DEVELOPER AGREES WITH THE PUBLIC ENTITY OR PUBLIC CORPORATION TO PAY
PREVAILING WAGES, THE PROVISIONS OF THIS PARAGRAPH SHALL NOT APPLY.
D. APPRENTICES SHALL BE USED ON ANY PUBLIC WORK PROJECT THAT WILL
REQUIRE THE USE OF WORKERS FROM APPRENTICEABLE CRAFTS OR TRADES. SUCH
A. 7072 5
APPRENTICES SHALL BE PARTICIPANTS IN APPRENTICESHIP PROGRAMS CERTIFIED
BY THE DEPARTMENT IN ACCORDANCE WITH REGULATIONS PROMULGATED BY THE
COMMISSIONER PURSUANT TO ARTICLE TWENTY-THREE OF THIS CHAPTER. IN
ACCORDANCE WITH THE FEDERAL FITZGERALD ACT, 29 U.S.C. S 50, SPONSORS OF
SUCH APPRENTICESHIP PROGRAMS SHALL ESTABLISH AFFIRMATIVE ACTION PLANS,
INCLUDING GOALS AND TIMETABLES, FOR THE ADMISSION OF MINORITY AND/OR
FEMALE APPLICANTS INTO THEIR APPRENTICE ELIGIBILITY POOLS. WHERE A SPON-
SOR FAILS TO SUBMIT SUCH GOALS AND TIMETABLES OR SUBMITS GOALS AND TIME-
TABLES WHICH THE COMMISSIONER FINDS UNACCEPTABLE, THE COMMISSIONER SHALL
ESTABLISH GOALS AND TIMETABLES APPLICABLE TO SUCH SPONSOR FOR THE ADMIS-
SION OF MINORITY AND/OR FEMALE APPLICANTS INTO ITS ELIGIBILITY POOL OR
SELECTION OF APPRENTICES, AS APPROPRIATE. SUCH SPONSORS SHALL MAKE GOOD
FAITH EFFORTS TO ATTAIN GOALS AND TIMETABLES IN ACCORDANCE WITH THE
REQUIREMENTS OF THIS PARAGRAPH, INCLUDING CONTRACTING WITH APPROPRIATE
LOCAL COMMUNITY-BASED ORGANIZATIONS, FOR ESTABLISHMENT AND SPONSORSHIP
OF PRE-EMPLOYMENT/PRE-APPRENTICESHIP SCREENING AND TRAINING PROGRAMS IN
ORDER TO IDENTIFY QUALIFIED PERSONS FOR WORK OPPORTUNITIES IN THE
CONSTRUCTION INDUSTRY. THE COMMISSIONER SHALL ON AN ANNUAL BASIS REPORT
TO THE GOVERNOR AND THE LEGISLATURE CONCERNING AFFIRMATIVE ACTION PLANS
OF SUCH SPONSORS AND WHETHER THE GOALS AND TIMETABLES THEREIN HAVE BEEN
ATTAINED.
S 4. Section 220 of the labor law is amended by adding a new subdivi-
sion 4-b to read as follows:
4-B. THIS ARTICLE SHALL NOT APPLY TO CONSTRUCTION, DEMOLITION, RECON-
STRUCTION, EXCAVATION, REHABILITATION, REPAIRS, RENOVATION OR ALTERATION
OF A PRIVATELY OWNED RESIDENTIAL BUILDING OR IMPROVEMENT INCLUDING
ANCILLARY FACILITIES EXCEPT WHEN A DIRECT CAPITAL GRANT OF PUBLIC FUNDS
WHICH EXCEEDS FIFTY-ONE PERCENT OF THE TOTAL VALUE OF THE PROJECT IS
PROVIDED FOR NEW CONSTRUCTION AND EITHER THE TOTAL NUMBER OF UNITS IN A
GIVEN BUILDING EXCEEDS ONE HUNDRED OR THE BUILDING EXCEEDS SEVEN STORIES
IN HEIGHT. A DIRECT CAPITAL GRANT OF PUBLIC FUNDS SHALL NOT BE INTER-
PRETED TO INCLUDE LOANS THAT ARE TO BE REPAID OR TAX INCENTIVES.
S 5. This act shall take effect on the one hundred eightieth day after
it shall have become a law and shall apply to all applicable contracts
or other agreements entered into after such effective date; provided
that the amendments to subdivision 2 of section 220 of the labor law
made by section one 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 two of this act shall take effect; provided, further that the
amendments made to sections two, three and four of this act shall remain
in full force and effect until June 30, 2014, when upon such date the
provisions of such sections shall expire and be deemed repealed.