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