S T A T E O F N E W Y O R K
________________________________________________________________________
9375
I N A S S E M B L Y
February 24, 2012
___________
Introduced by M. of A. CAMARA, WRIGHT, V. LOPEZ, ABBATE, GOTTFRIED,
DINOWITZ, ORTIZ, KAVANAGH, HEVESI, ROSENTHAL, PERRY, COLTON, LANCMAN,
JEFFRIES, WEISENBERG, P. RIVERA, TITONE, BRONSON, ROBERTS, SCHIMEL,
MARKEY, HOOPER, WEPRIN, M. MILLER, STEVENSON, MOYA, CASTRO, LINARES,
MAISEL, ABINANTI, GIBSON, RAMOS, RUSSELL, AUBRY, MAGNARELLI -- Multi-
Sponsored by -- M. of A. ARROYO, BARRON, BENEDETTO, BRAUNSTEIN,
BROOK-KRASNY, CLARK, COOK, CRESPO, DenDEKKER, ESPINAL, GLICK, GOLDFED-
ER, HEASTIE, JACOBS, LAVINE, McENENY, MENG, O'DONNELL, PRETLOW, QUART,
J. RIVERA, N. RIVERA, ROBINSON, RODRIGUEZ, SALADINO, SCARBOROUGH,
SIMANOWITZ, SIMOTAS, TITUS -- read once and referred 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, as added by chapter 777 of the laws of 1971, subdivision 1 as
amended and subdivision 9 as added by chapter 542 of the laws of 1984,
subdivision 4 as amended by chapter 678 of the laws of 2007 and subdivi-
sion 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, OR SECURITY SERVICE WORK FOR A CONTRACTOR,
UNDER CONTRACT WITH A PUBLIC AGENCY WHICH IS IN EXCESS OF TWO THOUSAND
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 equip-
ment 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] TWO thousand
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10637-02-1
A. 9375 2
[five hundred] dollars and the principal purpose of which is to furnish
services through the use of [building] service employees. THE
PROVISIONS OF THIS ARTICLE SHALL NOT APPLY TO ANY EMPLOYEE DIRECTLY OR
INDIRECTLY PERFORMING WORK FOR OR ON BEHALF OF A BUSINESS IMPROVEMENT
DISTRICT UNLESS SUCH WORK WOULD HAVE BEEN SUBJECT TO THE REQUIREMENTS OF
THIS ARTICLE AS IN EFFECT ON JANUARY FIRST, TWO THOUSAND ELEVEN. THE
PRECEDING SENTENCE SHALL NOT BE CONSTRUED TO AFFECT ANY DETERMINATION
HEREAFTER BY THE FISCAL OFFICER OR A COURT OF COMPETENT JURISDICTION AS
TO THE APPLICABILITY OR INAPPLICABILITY TO SUCH WORK OF SUCH REQUIRE-
MENTS.
"[Building service] SERVICE employee" or "employee" includes, but is
not limited, to, watchman, guard, doorman, building cleaner, porter,
handyman, janitor, gardener, groundskeeper, stationary fireman, elevator
operator and starter, window cleaner, 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] OR JANITORIAL OR SECURITY WORK PERFORMED ON
THE PREMISES OWNED OR OPERATED BY THE POWER AUTHORITY OF THE STATE OF
NEW YORK UNLESS SUCH PREMISES ARE JOINTLY OWNED OR OPERATED WITH ANY
NON-GOVERNMENTAL UTILITY OR SUBSTANTIALLY-OWNED OR AFFILIATED ENTITY OF
SUCH PUBLIC UTILITY AS DEFINED IN SUBDIVISION THREE OF THIS SECTION.
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, AND ANY PUBLIC UTILITY THAT DISTRIBUTES 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
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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.]
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. Subdivision 4 of section 230 of the labor law, as added by chap-
ter 777 of the laws of 1971, is amended to read as follows:
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 his subcontractors.
S 4. Subdivisions 1, 3, 4 and 5 of section 231 of the labor law, 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 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
A. 9375 4
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.
S 5. Subdivision 5 of section 231 of the labor law, as added by chap-
ter 777 of the laws of 1971, is amended to read as follows:
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 [industrial] 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.
S 6. 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
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
A. 9375 5
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 MAY, 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
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
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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 7. 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 8. 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:
2. When a contract for service work contains as part thereof a sched-
ule 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] SHALL BE GUILTY OF A MISDEMEANOR FOR THE FIRST
OFFENSE AND UPON CONVICTION THEREFOR SHALL BE FINED TWO THOUSAND FIVE
HUNDRED DOLLARS OR TWICE THE AMOUNT OF UNDERPAYMENT, WHICHEVER IS GREAT-
ER OR IMPRISONED FOR NOT MORE THAN ONE YEAR, OR BOTH. IF A PERSON STANDS
CONVICTED OF A VIOLATION OF THIS SECTION AND WITHIN THE PREVIOUS SIX
YEARS HAS BEEN CONVICTED ONE OR MORE TIMES OF A VIOLATION OF THIS
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SECTION IN SEPARATE TRANSACTIONS, THEN SUCH PERSON SHALL BE GUILTY OF A
CLASS E FELONY UPON CONVICTION FOR SUCH SUBSEQUENT OFFENSE, AND SHALL BE
FINED FIVE THOUSAND DOLLARS OR TRIPLE THE AMOUNT OF UNDERPAYMENT, WHICH-
EVER IS GREATER OR IMPRISONED AS AUTHORIZED BY SECTION 70.00 OF THE
PENAL LAW OR PUNISHED BY BOTH SUCH FINE AND IMPRISONMENT, FOR EACH SUCH
OFFENSE. IN addition [thereto] TO ANY OTHER FINE OR PENALTY THAT MAY BE
IMPOSED FOR SUCH FELONY OFFENSE, 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 OR HER 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
officer 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 THIS SUBDIVISION and the criminal and civil penalties
[herein] OF THIS SUBDIVISION shall attach to such officer upon
conviction.
S 9. 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 10. 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; provided,
however, that:
(a) 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 three of this act shall take effect; and
(b) the amendments to subdivision 5 of section 231 of the labor law
made by section four 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.