S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5498--A
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 9, 2017
                                ___________
 
 Introduced  by  M.  of A. BRONSON, TITUS, MAYER, MOYA, LIFTON, BICHOTTE,
   PERRY, SANTABARBARA, BRINDISI, JENNE, GLICK, CARROLL, ROZIC, PICHARDO,
   BRAUNSTEIN, RODRIGUEZ, STECK, SEAWRIGHT, NOLAN,  WALLACE,  RYAN,  KIM,
   ORTIZ,  TITONE,  GJONAJ,  COLTON,  SKOUFIS, HYNDMAN, ABBATE, BARNWELL,
   DenDEKKER, ABINANTI, CUSICK,  WOERNER,  ROSENTHAL,  BRABENEC,  PAULIN,
   SEPULVEDA,    DE LA ROSA,   MAGNARELLI,   SIMANOWITZ,   PHEFFER AMATO,
   M. G. MILLER,  WALKER,  JOYNER,  HARRIS,  BENEDETTO,  QUART,  SIMOTAS,
   VANEL, NIOU, BLAKE, D'URSO, JAFFEE, STIRPE, ERRIGO, PELLEGRINO, RAMOS,
   RICHARDSON  --  Multi-Sponsored by -- M. of A. BYRNE, LENTOL, SIMON --
   read once and referred to the  Committee  on  Labor  --  reported  and
   referred  to  the  Committee  on  Codes  -- committee discharged, bill
   amended, ordered reprinted as amended and recommitted to said  commit-
   tee
 
 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-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06799-04-7

 A. 5498--A                          2
 
 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
 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

 A. 5498--A                          3
 
   (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.
   (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-

 A. 5498--A                          4
 
 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.
   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-

 A. 5498--A                          5
 
 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.