S T A T E O F N E W Y O R K
________________________________________________________________________
7482
2013-2014 Regular Sessions
I N A S S E M B L Y
May 22, 2013
___________
Introduced by M. of A. CAMARA -- 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. Subdivisions 1, 2, 3, 8, 9 and 10 of section 230 of the
labor law, subdivision 1 as amended and subdivision 9 as added by chap-
ter 542 of the laws of 1984, subdivisions 2, 3 and 8 as added by chapter
777 of the laws of 1971 and subdivision 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 employee" or "employee" means any person perform-
ing work in connection with the care or maintenance of an existing
building, or in connection with the transportation of office furniture
or equipment to or from such building, or in connection with the trans-
portation and delivery of fossil fuel to such building, OR ANY PERSON
PERFORMING JANITORIAL OR SECURITY WORK ON OR ABOUT A FACILITY OF A
PUBLIC AGENCY PROVIDING PUBLIC UTILITY SERVICES, for a contractor under
a contract with a public agency which is in excess of [one] TWO thousand
[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 PROVISIONS OF THIS ARTI-
CLE ON JANUARY FIRST, TWO THOUSAND THIRTEEN.
"Building service employee" or "employee" includes, but is not limit-
ed[,] 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10863-01-3
A. 7482 2
equipment, and to the transportation and delivery of fossil fuel but
does not include clerical, sales, professional, technician and related
occupations.
"Building 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 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].
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.
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
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 2. Subdivision 2 of section 235 of the labor law is amended by
adding a new paragraph g to read as follows:
A. 7482 3
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 SHALL, 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.
S 3. 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 4. 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:
A. 7482 4
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 BY BOTH SUCH FINE AND
IMPRISONMENT. 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 SECTION IN SEPARATE TRANSACTIONS, THEN SUCH
PERSON SHALL BE GUILTY OF A FELONY UPON CONVICTION OF SUCH SUBSEQUENT
OFFENSE, AND SHALL BE FINED FIVE THOUSAND DOLLARS OR TRIPLE THE AMOUNT
OF UNDERPAYMENT, WHICHEVER IS GREATER, OR IMPRISONED AS AUTHORIZED FOR A
CLASS E FELONY BY SECTION 70.00 OF THE PENAL LAW, OR 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 SUBDIVI-
SION and the criminal and civil penalties [herein] OF THIS SUBDIVISION
shall attach to such officer upon conviction.
S 5. 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 6. 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.