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