Senate Bill S9056

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9056
 
                             I N  S E N A T E
 
                               June 15, 2018
                                ___________
 
 Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN ACT to amend the labor law, in  relation  to  additional  information
   provided to employees on public work contracts
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. Paragraph (e) of subdivision 3 of section 220 of the  labor
 law,  as amended by chapter 7 of the laws of 2008, is amended to read as
 follows:
   (e) The commissioner shall ensure that all supplements due under  this
 article  shall  be  paid to or on behalf of an employee. (I) The commis-
 sioner shall require proof that the pension plan for which  any  supple-
 ment has been paid is qualified as a bona fide plan by the United States
 internal  revenue service. Acceptable proof shall be shown by submission
 of a determination letter issued by the United States  internal  revenue
 service.  (II)  THE  COMMISSIONER  SHALL  ALSO REQUIRE ANY CONTRACTOR OR
 SUBCONTRACTOR WHO PROVIDES ANY SUPPLEMENT WHICH IS PART OF A FUND,  PLAN
 OR  PROGRAM  TO FURNISH TO THE COMMISSIONER PROOF THAT THE SUPPLEMENT IS
 PROVIDED THROUGH A FUND, PLAN OR PROGRAM AND THE AMOUNT  CONTRIBUTED  ON
 THE EMPLOYEES' BEHALF TO SUCH FUND, PLAN OR PROGRAM.
   § 2. Subparagraphs (ii) and (iii) of paragraph a of subdivision 3-a of
 section 220 of the labor law, subparagraph (ii) as separately amended by
 chapters  7 and 63 of the laws of 2008 and subparagraph (iii) as amended
 by chapter 8 of the laws of 2008, are amended to read as follows:
   (ii) The contractor and every sub-contractor on public works contracts
 shall post in a prominent and accessible place on  the  site  where  the
 work  is performed a legible statement of all wage rates and supplements
 as specified in the contract to be paid or provided, as the case may be,
 for the various classes of mechanics, workers, or laborers  employed  on
 the  work.  Such  posted statement shall be written in plain English and
 titled, in lettering no smaller than two inches in height and two inches
 in width, with the phrase "Prevailing Rate of Wages". Such posted state-
 ment shall be constructed of materials capable of  withstanding  adverse
 weather conditions. The contractor and every sub-contractor shall notify
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD16133-03-8

 S. 9056                             2
 
 all  laborers,  workers  or  mechanics in their employ in writing of the
 prevailing rate of wage AND SUPPLEMENTS for their particular job classi-
 fication. Such notification shall be given to every laborer,  worker  or
 mechanic  UPON  HIRE,  on  their  first pay stub and with every pay stub
 thereafter, AND SHALL SET FORTH THE  AMOUNTS  PAID  PER  HOUR  FOR  EACH
 SUPPLEMENT  PROVIDED  FOR  HIS  OR  HER PARTICULAR JOB CLASSIFICATION IN
 ACCORDANCE WITH THE SCHEDULES DETERMINED BY  THE  FISCAL  OFFICER.  SUCH
 NOTIFICATION SHALL BE PROVIDED IN ENGLISH AND IN THE LANGUAGE IDENTIFIED
 BY EACH EMPLOYEE AS THE PRIMARY LANGUAGE OF SUCH EMPLOYEE. At the begin-
 ning  of  performance of every public works contract, and with the first
 paycheck after July first of each year, the contractor  and  every  sub-
 contractor  shall  notify  all laborers, workers, and mechanics in their
 employ in writing, IN ENGLISH AND IN THE  LANGUAGE  IDENTIFIED  BY  EACH
 EMPLOYEE  AS  THE  PRIMARY LANGUAGE OF SUCH EMPLOYEE, in accordance with
 such form as is prescribed by  the  fiscal  officer,  of  the  telephone
 number  and address for the fiscal officer. The notice shall also inform
 each laborer, worker, or mechanic of his or her  right  to  contact  the
 fiscal  officer or some other representative if, at any time while work-
 ing for the public works contractor or sub-contractor, he  or  she  does
 not  receive  the proper prevailing rate of wages or supplements for his
 or her particular job classification that  he  or  she  is  entitled  to
 receive  under  the  contract. If after investigation the fiscal officer
 finds that a contractor or sub-contractor has  (1)  failed  to  post  OR
 PROVIDE  any  notice  required  under this subdivision, INCLUDING HAVING
 FAILED TO PROVIDE ANY SUCH NOTICE  IN  THE  LANGUAGE  IDENTIFIED  BY  AN
 EMPLOYEE  AS  THE  PRIMARY  LANGUAGE OF SUCH EMPLOYEE, (2) failed to set
 forth the prevailing wage OR THE BREAKDOWN OF  SUPPLEMENTS  on  the  pay
 stub,  (3) [wilfully] WILLFULLY posted the incorrect prevailing wage, or
 (4) [wilfully] WILLFULLY set forth the incorrect prevailing wage OR  THE
 AMOUNTS  PAID  PER  HOUR FOR EACH SUPPLEMENT on the pay stub, the fiscal
 officer[,] shall, by an order  which  shall  describe  particularly  the
 nature of the alleged violation, assess the contractor or sub-contractor
 a civil penalty of not more than fifty dollars upon the first finding of
 a  violation,  two  hundred  fifty  dollars upon the second finding of a
 violation, and five hundred dollars for each  subsequent  violation.  In
 assessing  the  amount of the penalty, the fiscal officer shall give due
 consideration to the size of the employer's business, the good faith  of
 the employer, and the gravity of the violation.
   (iii)  The  contractor  and  every  sub-contractor shall keep original
 payrolls or transcripts thereof, subscribed and sworn to or affirmed  by
 him  or  her  as  true under the penalties of perjury, setting forth the
 names and addresses and showing for each worker,  laborer,  or  mechanic
 the hours and days worked, the occupations worked, the hourly wage rates
 paid  and the supplements paid or provided. SUCH PAYROLLS OR TRANSCRIPTS
 THEREOF SHALL ALSO SET FORTH THE AMOUNTS PAID PER HOUR FOR EACH  SUPPLE-
 MENT  PROVIDED IN ACCORDANCE WITH THE SCHEDULES DETERMINED BY THE FISCAL
 OFFICER. Where the contractor or  sub-contractor  maintains  no  regular
 place of business in New York state and where the amount of the contract
 is in excess of twenty-five thousand dollars such payrolls shall be kept
 on the site of the work.  All other contractors or sub-contractors shall
 produce  within  five days on the site of the work and upon formal order
 of the  commissioner  or  his  or  her  designated  representative  such
 original  payrolls  or  transcripts  thereof, subscribed and sworn to or
 affirmed by him or her as true under the penalties of perjury, as may be
 deemed necessary to adequately enforce the provisions of  this  article.
 Every  contractor, and sub-contractor, shall submit to the department of

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 jurisdiction within thirty days after issuance of its first payroll, and
 every thirty days thereafter,  a  transcript  of  the  original  payroll
 record, as provided by this article, subscribed and sworn to or affirmed
 as  true  under  the penalties of perjury.  EVERY CONTRACTOR AND SUBCON-
 TRACTOR SHALL SUBMIT TO THE COMMISSIONER, AND  TO  THE  FISCAL  OFFICER,
 WHEN  THE  FISCAL OFFICER IS A CITY COMPTROLLER OR OTHER ANALOGOUS OFFI-
 CER, WITHIN THIRTY DAYS OF ITS FIRST PAYROLL, AND ANNUALLY THEREAFTER, A
 TRANSCRIPT OF THE ORIGINAL PAYROLL RECORD, SUBSCRIBED AND  SWORN  TO  OR
 AFFIRMED  AS  TRUE UNDER THE PENALTIES OF PERJURY, INCLUDING, DOCUMENTA-
 TION OF EACH FUND, PLAN, OR PROGRAM FOR WHICH ANY  SUPPLEMENT  HAS  BEEN
 PAID  OR  PROVIDED. SUCH TRANSCRIPTS AND ADDITIONAL INFORMATION SHALL BE
 PROVIDED ON A  FORM  PROMULGATED  BY  THE  DEPARTMENT.  Any  person  who
 [wilfully] WILLFULLY fails to file such payroll records with the depart-
 ment of jurisdiction, COMMISSIONER, OR THE FISCAL OFFICER shall be guil-
 ty of a class E felony. In addition, any person who [wilfully] WILLFULLY
 fails  to  file  such  payroll records within the time specified in this
 subparagraph shall be subject to a civil penalty of up to  one  thousand
 dollars per day.
   §  3.  Subdivision  6  of  section 220 of the labor law, as amended by
 chapter 230 of the laws of 1984, is amended to read as follows:
   6. The fiscal officer[,] may, and on the written request of any inter-
 ested person shall, require any person or  corporation  performing  such
 public  work  to  file with such fiscal officer schedules of the supple-
 ments to be provided and wages to be paid to such laborers,  workmen  or
 mechanics,  INCLUDING  INFORMATION  REGARDING THE AMOUNTS TO BE PAID PER
 HOUR FOR EACH SUPPLEMENT PROVIDED FOR EACH  PARTICULAR  JOB  CLASSIFICA-
 TION.  THE  FISCAL OFFICER MAY, AND ON THE WRITTEN REQUEST OF ANY INTER-
 ESTED PARTY SHALL, REQUIRE AND FURNISH PROOF OF ANY SUPPLEMENTS PROVIDED
 OR AMOUNTS PAID TO OR ON BEHALF OF  EMPLOYEES  IN  SATISFACTION  OF  THE
 OBLIGATION TO PROVIDE SUPPLEMENTS UNDER THIS SECTION. Any such person or
 corporation  shall,  within ten days after the receipt of written notice
 of such requirement, file with the  fiscal  officer  such  schedules  of
 wages  and  supplements.  An employer may contest a determination by the
 fiscal officer under paragraphs a and c  of  subdivision  five  of  this
 section.  The employer must allege and prove by competent evidence, that
 the actual percentage of workers, laborers or  mechanics  is  below  the
 required  thirty  per centum and during the pendency of any such contest
 and until final  determination  thereof,  the  work  in  question  shall
 proceed under the rate established by the fiscal officer.
   § 4. This act shall take effect on the one hundred eightieth day after
 it shall have become a law and shall only apply to public work contracts
 entered into on or after such effective date.