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.