The New York State Senate

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

                                 2975--A

                       2017-2018 Regular Sessions

                            I N  S E N A T E

                            January 18, 2017
                               ___________

Introduced  by Sens. MURPHY, ADDABBO, ALCANTARA, BOYLE, BRESLIN, CARLUC-
  CI, COMRIE, HOYLMAN, KENNEDY, LANZA, PERALTA, VALESKY  --  read  twice
  and ordered printed, and when printed to be committed to the Committee
  on  Labor  --  reported favorably from said committee and committed to
  the Committee  on  Finance  --  committee  discharged,  bill  amended,
  ordered reprinted as amended and recommitted to said committee

AN  ACT  to amend the labor law, in relation to hours, wages and supple-
  ments in contracts for public work

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

  Section  1.  Subdivision 2 of section 220 of the labor law, as amended
by chapter 678 of the laws of 2007, is amended to read as follows:
  2. [Each] EVERY contract [to which  the  state  or  a  public  benefit
corporation  or a municipal corporation or a commission appointed pursu-
ant to law is a party, and any contract for public work entered into  by
a  third  party  acting in place of, on behalf of and for the benefit of
such public entity pursuant to any  lease,  permit  or  other  agreement
between  such  third  party and the public entity, and which may involve
the employment of laborers, workers or mechanics] FOR PUBLIC WORK  shall
contain  a stipulation that no laborer, worker or mechanic in the employ
of the contractor, subcontractor or other person doing or contracting to
do the whole or a part of the work contemplated by the contract shall be
permitted or required to work more than eight hours in any one  calendar
day  or  more than five days in any one week except in cases of extraor-
dinary emergency including fire, flood or danger to life or property. No
such person shall be so employed more than eight hours  in  any  day  or
more  than  five days in any one week except in such emergency. Extraor-
dinary emergency within the meaning of this section shall be  deemed  to
include  situations  in which sufficient laborers, workers and mechanics
cannot be employed to carry on public work expeditiously as a result  of
such  restrictions  upon  the  number of hours and days of labor and the

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

                                                           LBD06799-05-7

S. 2975--A                          2

immediate commencement or prosecution or completion without undue  delay
of  the public work is necessary in the judgment of the commissioner for
the preservation of the contract site and for the protection of the life
and  limb  of  the  persons  using the same. Upon the application of any
person interested, the commissioner shall make  a  determination  as  to
whether  or  not  on any public project or on all public projects in any
area of this state, sufficient laborers, workers and mechanics of any or
all classifications can be employed to carry on  work  expeditiously  if
their labor is restricted to eight hours per day and five days per week,
and  in  the  event  that the commissioner determines that there are not
sufficient workers, laborers and mechanics of any or all classifications
which may be employed to carry on such work expeditiously if their labor
is restricted to eight hours per day and five days  per  week,  and  the
immediate  commencement or prosecution or completion without undue delay
of the public work is necessary in the judgment of the commissioner  for
the preservation of the contract site and for the protection of the life
and  limb  of the persons using the same, the commissioner shall grant a
dispensation permitting all laborers,  workers  and  mechanics,  or  any
classification  of  such  laborers,  workers and mechanics, to work such
additional hours or days per week on such  public  project  or  in  such
areas  the commissioner shall determine. Whenever such a dispensation is
granted, all work in excess of eight hours per day  and  five  days  per
week  shall  be  considered overtime work, and the laborers, workers and
mechanics performing such work shall be paid a premium wage commensurate
with the premium wages prevailing in the  area  in  which  the  work  is
performed.  No  such dispensation shall be effective with respect to any
public work unless and until the department of jurisdiction, as  defined
in  this section, certifies to the commissioner that such public work is
of an important nature and that a delay in  carrying  it  to  completion
would  result  in  serious  disadvantage to the public. Time lost in any
week  because  of  inclement  weather  by  employees  engaged   in   the
construction,  reconstruction and maintenance of highways outside of the
limits of cities and villages may be made up during that week and/or the
succeeding three weeks.
  § 2. Subdivision 5 of section 220 of  the  labor  law  is  amended  by
adding four new paragraphs m, n, o and p to read as follows:
  M.  FOR  THE  PURPOSES OF THIS ARTICLE, "PUBLIC WORK" MEANS ANY OF THE
FOLLOWING:
  (I) CONSTRUCTION PAID FOR IN WHOLE OR IN PART OUT OF PUBLIC FUNDS;
  (II) CONSTRUCTION WORK PERFORMED UNDER PRIVATE CONTRACT  WHEN  ALL  OF
THE FOLLOWING CONDITIONS EXIST:
  (A) THE CONSTRUCTION CONTRACT IS BETWEEN PRIVATE PARTIES;
  (B)  THE  PROPERTY  SUBJECT  TO THE CONSTRUCTION CONTRACT IS PRIVATELY
OWNED, BUT UPON COMPLETION OF THE CONSTRUCTION WORK, ANY PORTION OF  THE
PROPERTY  IS LEASED OR WILL BE LEASED TO THE STATE OR ANY PUBLIC ENTITY,
AND ONE OF THE FOLLOWING CONDITIONS EXIST:
  (1) THE PUBLIC ENTITY ENTERED INTO OR BARGAINED FOR THE  LEASE  AGREE-
MENT PRIOR TO THE CONSTRUCTION CONTRACT; OR
  (2)  THE CONSTRUCTION WORK IS PERFORMED ACCORDING TO PLANS, SPECIFICA-
TIONS, OR CRITERIA FURNISHED BY THE PUBLIC ENTITY, AND THE LEASE  AGREE-
MENT  BETWEEN  THE  LESSOR AND PUBLIC ENTITY, AS LESSEE, IS ENTERED INTO
DURING, OR UPON COMPLETION OF, THE  CONSTRUCTION  WORK,  OR  WITHIN  SIX
MONTHS FOLLOWING COMPLETION OF THE CONSTRUCTION WORK; OR
  (III) CONSTRUCTION WORK PERFORMED ON PROPERTY OWNED BY A PUBLIC ENTITY
IN WHOLE OR IN PART OR WILL BE OWNED OR MAINTAINED BY A PUBLIC ENTITY IN
WHOLE OR IN PART UPON COMPLETION OF THE PROJECT.

S. 2975--A                          3

  (IV)  FOR  THE  PURPOSES OF THIS ARTICLE, "PUBLIC WORK" SHALL NOT MEAN
ANY OF THE FOLLOWING:
  (A) CONSTRUCTION WORK ON ONE OR TWO FAMILY DWELLINGS WHERE THE PROPER-
TY IS THE OWNER'S PRIMARY RESIDENCE OR CONSTRUCTION WORK DONE ON PROPER-
TY  WHERE  THE  OWNER  OF  THE  PROPERTY OWNS NO MORE THAN FOUR DWELLING
UNITS;
  (B) CONSTRUCTION WORK PERFORMED UNDER A CONTRACT WITH A NON-PROFIT  AS
DEFINED IN SECTION ONE HUNDRED TWO OF THE NOT-FOR-PROFIT CORPORATION LAW
WHERE  THE  VALUE OF THE PUBLIC FUNDS PROVIDED TO THE NON-PROFIT FOR THE
PROJECT IS LESS THAN ONE HUNDRED THOUSAND DOLLARS AND THE NON-PROFIT HAS
GROSS ANNUAL REVENUE AND SUPPORT LESS THAN ONE MILLION DOLLARS; OR
  (C) CONSTRUCTION WORK PERFORMED ON A MULTIPLE DWELLING WHERE  NO  LESS
THAN  SEVENTY-FIVE  PERCENT  OF THE RESIDENTIAL UNITS ARE AFFORDABLE FOR
HOUSEHOLDS UP TO SIXTY PERCENT OF THE AREA MEDIAN INCOME,  ADJUSTED  FOR
FAMILY  SIZE,  AS  CALCULATED BY THE UNITED STATES DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT, PROVIDED HOWEVER, THAT ANY CONSTRUCTION PERFORMED
ON NON-RESIDENTIAL SPACE IN CONNECTION WITH A MULTIPLE DWELLING  PROJECT
SHALL  BE CONSIDERED PUBLIC WORK IF IT MEETS ANY OF THE CRITERIA IN THIS
PARAGRAPH. FURTHER, ANY CONSTRUCTION WORK PERFORMED ON A PROJECT  ELIGI-
BLE  FOR  BENEFITS  UNDER  SECTION FOUR HUNDRED TWENTY-ONE-A OF THE REAL
PROPERTY TAX LAW SHALL NOT BE CONSIDERED PUBLIC WORK FOR THE PURPOSES OF
THIS ARTICLE.
  N. "PAID FOR IN WHOLE OR IN PART OUT OF PUBLIC FUNDS" MEANS ALL OF THE
FOLLOWING:
  (I) THE PAYMENT OF MONEY OR THE EQUIVALENT  OF  MONEY,  INCLUDING  THE
ISSUANCE  OF  BONDS  AND  GRANTS,  BY THE STATE OR A PUBLIC ENTITY, OR A
THIRD PARTY ACTING ON BEHALF OF AND FOR THE  BENEFIT  OF  THE  STATE  OR
PUBLIC  ENTITY, DIRECTLY TO OR ON BEHALF OF THE PUBLIC WORKS CONTRACTOR,
SUBCONTRACTOR, OR DEVELOPER.
  (II) PERFORMANCE OF CONSTRUCTION WORK BY THE STATE OR ANY PUBLIC ENTI-
TY IN THE EXECUTION OF THE PROJECT.
  (III) TRANSFER BY THE STATE OR A PUBLIC ENTITY OF AN  ASSET  OF  VALUE
FOR LESS THAN FAIR MARKET VALUE.
  (IV)  FEES,  COSTS, RENTS, INSURANCE OR BOND PREMIUMS, LOANS, INTEREST
RATES, TAXES, OR OTHER OBLIGATIONS THAT WOULD NORMALLY  BE  REQUIRED  IN
THE  EXECUTION  OF  THE PROJECT, THAT ARE PAID, REDUCED, CHARGED AT LESS
THAN FAIR MARKET VALUE, WAIVED, OR FORGIVEN BY THE STATE OR PUBLIC ENTI-
TY.
  (V) MONEY LOANED BY THE STATE OR PUBLIC ENTITY THAT IS TO BE REPAID ON
A CONTINGENT BASIS.
  (VI) CREDITS THAT ARE APPLIED BY THE STATE OR  PUBLIC  ENTITY  AGAINST
REPAYMENT OBLIGATIONS TO THE STATE OR PUBLIC ENTITY.
  O.    "PUBLIC  ENTITY"  INCLUDES,  BUT IS NOT LIMITED TO, THE STATE, A
LOCAL DEVELOPMENT CORPORATION AS DEFINED IN SUBDIVISION EIGHT OF SECTION
EIGHTEEN HUNDRED ONE OF THE PUBLIC AUTHORITIES LAW OR  SECTION  FOURTEEN
HUNDRED  ELEVEN  OF THE NOT-FOR-PROFIT CORPORATION LAW, MUNICIPAL CORPO-
RATION AS DEFINED IN SECTION  ONE  HUNDRED  NINETEEN-N  OF  THE  GENERAL
MUNICIPAL  LAW, INDUSTRIAL DEVELOPMENT AGENCIES FORMED PURSUANT TO ARTI-
CLE EIGHTEEN-A OF THE GENERAL MUNICIPAL LAW  OR  INDUSTRIAL  DEVELOPMENT
AUTHORITIES  FORMED  PURSUANT TO ARTICLE EIGHT OF THE PUBLIC AUTHORITIES
LAW, EDUCATIONAL CORPORATION ESTABLISHED UNDER ARTICLE FIFTY-SIX OF  THE
EDUCATION  LAW,  COMMISSION APPOINTED PURSUANT TO LAW, AS WELL AS STATE,
LOCAL AND INTERSTATE AND INTERNATIONAL AUTHORITIES AS DEFINED IN SECTION
TWO OF THE PUBLIC AUTHORITIES LAW; AND SHALL INCLUDE ANY  TRUST  CREATED
BY ANY SUCH ENTITIES.

S. 2975--A                          4

  P.  (I)  "CONSTRUCTION"  INCLUDES,  BUT IS NOT LIMITED TO, DEMOLITION,
RECONSTRUCTION, EXCAVATION, REHABILITATION, REPAIR, INSTALLATION,  RENO-
VATION, ALTERATION, AND CUSTOM FABRICATION. "CONSTRUCTION" ALSO INCLUDES
WORK   PREFORMED   DURING  THE  DESIGN  AND  PRECONSTRUCTION  PHASES  OF
CONSTRUCTION,  INCLUDING BUT NOT LIMITED TO, INSPECTION AND LAND SURVEY-
ING WORK AND WORK  PERFORMED  DURING  THE  POST-CONSTRUCTION  PHASES  OF
CONSTRUCTION,  INCLUDING,  BUT  NOT  LIMITED TO, ALL CLEANUP WORK AT THE
JOBSITE.  "CONSTRUCTION" ALSO INCLUDES THE DELIVERY TO AND HAULING  FROM
THE  JOBSITE  OF  AGGREGATE SUPPLY CONSTRUCTION MATERIALS, SUCH AS SAND,
GRAVEL, STONE, DIRT, FILL, AS WELL AS ANY NECESSARY RETURN HAULS, WHETH-
ER EMPTY OR LOADED.
  (II) FOR THE PURPOSES OF THIS ARTICLE, "CUSTOM FABRICATION" MEANS  THE
FABRICATION  AND  ALL DRAFTING RELATED TO THE FABRICATION OF ALL MASONRY
PANELS, WOODWORK, CASES, CABINETS, OR COUNTERS, AND THE  FABRICATION  OF
PLUMBING,  HEATING,  COOLING,  VENTILATION, OR EXHAUST DUCT SYSTEMS, AND
MECHANICAL INSULATION SOLELY AND SPECIFICALLY  DESIGNED  AND  ENGINEERED
FOR  INSTALLATION IN THE CONSTRUCTION, REPAIR, OR RENOVATION OF A BUILD-
ING, REGARDLESS OF WHERE THE CUSTOM FABRICATION IS PERFORMED. THE APPLI-
CABLE PREVAILING WAGE FOR ANY OFF-SITE CUSTOM FABRICATION WORK SHALL  BE
THE ON-SITE PREVAILING WAGE FOR THE PUBLIC WORK SITE.
  § 3. The labor law is amended by adding a new section 224-a to read as
follows:
  §  224-A. STOP-WORK ORDERS.  WHERE A COMPLAINT IS RECEIVED PURSUANT TO
THIS ARTICLE, OR WHERE THE FISCAL OFFICER UPON HIS OR HER  OWN  INVESTI-
GATION,  FINDS  CAUSE TO BELIEVE THAT ANY PERSON, IN CONNECTION WITH THE
PERFORMANCE OF ANY CONTRACT FOR PUBLIC WORK, HAS SUBSTANTIALLY AND MATE-
RIALLY FAILED TO COMPLY WITH OR INTENTIONALLY EVADED THE  PROVISIONS  OF
THIS  ARTICLE, THE COMMISSIONER MAY NOTIFY SUCH PERSON IN WRITING OF HIS
OR HER INTENTION TO ISSUE A STOP-WORK ORDER. SUCH NOTICE  SHALL  (I)  BE
SERVED  IN  A  MANNER CONSISTENT WITH SECTION THREE HUNDRED EIGHT OF THE
CIVIL PRACTICE LAW AND RULES; (II) NOTIFY SUCH  PERSON  OF  HIS  OR  HER
RIGHT  TO  A  HEARING;  AND (III) STATE THE FACTUAL BASIS UPON WHICH THE
COMMISSIONER HAS BASED HIS OR HER DECISION TO ISSUE A  STOP-WORK  ORDER.
ANY  DOCUMENTS, REPORTS, OR INFORMATION THAT FORM A BASIS FOR SUCH DECI-
SION SHALL BE PROVIDED TO SUCH PERSON WITHIN A  REASONABLE  TIME  BEFORE
THE HEARING. SUCH HEARING SHALL BE EXPEDITIOUSLY CONDUCTED.
  FOLLOWING  THE  HEARING, IF THE COMMISSIONER ISSUES A STOP-WORK ORDER,
IT SHALL BE SERVED BY REGULAR MAIL, AND A SECOND COPY MAY BE  SERVED  BY
TELEFACSIMILE OR BY ELECTRONIC MAIL, WITH SERVICE EFFECTIVE UPON RECEIPT
OF  ANY  OF  SUCH  ORDER. SUCH STOP-WORK ORDER SHALL ALSO BE SERVED WITH
REGARD TO A WORKSITE BY POSTING A COPY OF SUCH ORDER  IN  A  CONSPICUOUS
LOCATION  AT  THE  WORKSITE.  THE ORDER SHALL REMAIN IN EFFECT UNTIL THE
COMMISSIONER DIRECTS THAT THE STOP-WORK ORDER BE REMOVED, UPON  A  FINAL
DETERMINATION  ON THE COMPLAINT OR WHERE SUCH FAILURE TO COMPLY OR EVADE
HAS BEEN DEEMED CORRECTED. IF THE PERSON  AGAINST  WHOM  SUCH  ORDER  IS
ISSUED  SHALL  WITHIN  THIRTY DAYS AFTER ISSUANCE OF THE STOP-WORK ORDER
MAKES AN APPLICATION IN AFFIDAVIT FORM FOR A REDETERMINATION  REVIEW  OF
SUCH  ORDER  THE  COMMISSIONER  SHALL  MAKE A DECISION IN WRITING ON THE
ISSUES RAISED IN SUCH APPLICATION. THE COMMISSIONER MAY DIRECT A  CONDI-
TIONAL  RELEASE  FROM  A STOP-WORK ORDER UPON A FINDING THAT SUCH PERSON
HAS TAKEN MEANINGFUL AND GOOD FAITH STEPS TO COMPLY WITH THE  PROVISIONS
OF THIS ARTICLE.
  § 4. This act shall take effect immediately.