NY State Senate Bill 2013-S5338

Archive: Last Bill Status - In Senate Committee Labor Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2014	referred to labor
Jun 03, 2013	reported and committed to finance
May 16, 2013	referred to labor

Votes

- Jun 3, 2013 - Labor Committee Vote
  S5338
  
  8
  
  Aye
  
  4
  
  Nay
  
  4
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Labor Committee Vote: Jun 3, 2013
      
      aye (8)
      
      Addabbo Jr.
      
      Ball
      
      Dilan
      
      Peralta
      
      Perkins
      
      Rivera
      
      Sanders Jr.
      
      Savino
      
      nay (4)
      
      DeFrancisco
      
      Hannon
      
      Marchione
      
      Robach
      
      aye wr (4)
      
      Gallivan
      
      Grisanti
      
      Marcellino
      
      Martins

co-Sponsors

2013-S5338 (ACTIVE) - Details

See Assembly Version of this Bill:: A7482
Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Amd §§230, 235, 237 & 238, Lab L

2013-S5338 (ACTIVE) - Summary

Relates to prevailing wage for service workers; includes public authorities providing public utility services.

2013-S5338 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5338

TITLE OF BILL:  An act to amend the labor law, in relation to
prevailing wage for service workers

PURPOSE OR GENERAL IDEA OF BILL:  This bill strengthens and clarifies
Article 9 of the Labor Law to ensure that workers employed to provide
service work for the benefit of public agencies are paid the
prevailing wages to which the law entitles them.

SUMMARY OF SPECIFIC PROVISIONS:  The bill amends section 230 of the
Labor Law by including within the definition of "building service
employee or employee", those performing work at the facilities of
public agencies that provide public utility services.

It amends the applicable dollar amount threshold of contracts with
public agencies covered by Section 230.

It makes clear that the amendments will not apply to any employees
performing work for a business improvement district (BID) that is not
covered under the current law. Those BIDs that are currently covered
by the requirement of Article 9 will continue to be.

The definition of "public agency" is amended to include public utility
services provided by a public authority or by a public utility selling
gas, electric or steam services at retail rates under a franchise

granted by the Public Service Commission (including any
substantially-owned entity affiliated with the public utility).

The term "public utility" is included within the definition
"Substantially-owned affiliated entity".

The definition of "person" is added to ensure that the law is
enforceable against partnerships, joint ventures and other forms of
organization.

A new Section 235(2)(g) is added to empower the fiscal officer to
request and receive records from the person or entity who is
responsible for paying the service employees, and authorizes under
certain circumstances the withholding of payments from such person or
entity that fails to produce the records.

Section 237 is also amended to provide enforcement tools that make the
willful failure to file payroll records with the public agency a class
E felony, and that require public agencies to designate an individual
responsible for the receipt, collection and review for facial validity
of the contractors' certified payroll statements before payment is
made.

Section 238 is amended to increase the criminal penalties for failure
to pay a service worker prevailing wages to a misdemeanor and the
greater of two thousand five hundred dollars or double the amount of
underpayments for a first violation; and a class E felony and the
greater of five thousand dollars or three times the amount of
underpayment, or imprisonment for a second or subsequent violation.


CURRENT LAW:  Currently, there is an exemption for public utility
companies in the state prevailing wage law which guarantees contracted
service employees the private sector market rate at public sites and
facilities. The current law lacks many of the procedural safeguards
and enforcement tools that have long been incorporated into Article 8
of the labor law. Combined with some ambiguous and outdated
definitions, this has left the door open for efforts to avoid paying
prevailing wages for service work performed for public agencies. This
bill would remove the public utility exemption and bolster the ability
of enforcement agencies to ensure that service employees receive the
prevailing wages to which they are entitled. Business improvement
districts are exempted from this legislation, unless such work
performed directly or indirectly for such entities would have been
subject to the requirements of Article 9 as in effect on January
first, 2013.

JUSTIFICATION:  For almost forty years, Article 9 of the Labor Law has
promoted the public policy that workers who perform service work
should be paid the prevailing wage. This bill clarifies the
definitions and applicability of Article 9 and adds provisions that
are analogous to several enforcement tools that have long been a part
of Article 8, in order to ensure that prevailing wages are Paid for
all appropriate service work.

PRIOR LEGISLATIVE HISTORY:  2012 - died in Senate Labor; reported from
Assembly Labor, died in Codes.  2010 - P-Senate 32-27; P-Assembly
92-48; vetoed (
6838).

FISCAL IMPLICATIONS:  Any fiscal implications are completely dependent
upon the specific agency /worksite circumstances, including when
current contracts or agreements expire or are up for renewal and what
terms are negotiated in the future.

EFFECTIVE DATE:  Ninetieth day after enactment and shall apply to all
contracts or other agreements entered into, renewed or extended on or
after such date.

2013-S5338 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5338

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              May 16, 2013
                               ___________

Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Labor

AN ACT to amend the labor  law,  in  relation  to  prevailing  wage  for
  service workers

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The opening paragraph of subdivision 1, and subdivisions 2,
3, 8, 9 and 10 of section 230 of the labor law, the opening paragraph of
subdivision 1 as amended and subdivision 9 as added by  chapter  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:
  "Building service employee" or "employee" means any 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, 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 REQUIREMENTS OF THIS
ARTICLE AS IN EFFECT ON JANUARY FIRST, TWO THOUSAND THIRTEEN.
  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10972-01-3

S. 5338                             2

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 SECTION, 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:
  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

S. 5338                             3

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:
  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-

S. 5338                             4

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
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 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.

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Senate Bill S5338

Sponsored By

Archive: Last Bill Status - In Senate Committee Labor Committee

Jun 3, 2013 - Labor Committee Vote

Labor Committee Vote: Jun 3, 2013

co-Sponsors

2013-S5338 (ACTIVE) - Details

2013-S5338 (ACTIVE) - Summary

2013-S5338 (ACTIVE) - Sponsor Memo

2013-S5338 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S5338

Share this bill

Sponsored By

Diane J. Savino

Archive: Last Bill Status - In Senate Committee Labor Committee

co-Sponsors

Joseph P. Addabbo Jr.

Tony Avella

Liz Krueger

Jose Peralta

2013-S5338 (ACTIVE) - Details

2013-S5338 (ACTIVE) - Summary

2013-S5338 (ACTIVE) - Sponsor Memo

2013-S5338 (ACTIVE) - Bill Text download pdf

Comments