The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  3350--A
                                                             R. R. 14
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 22, 2021
                                ___________
 
 Introduced  by  M.  of  A. JOYNER, BRONSON, OTIS, SIMON, GONZALEZ-ROJAS,
   KELLES, L. ROSENTHAL, BRABENEC  --  read  once  and  referred  to  the
   Committee  on Labor -- reported and referred to the Committee on Codes
   -- reported and referred to the Committee on Rules  --  ordered  to  a
   third  reading,  passed  by  Assembly  and  delivered  to  the Senate,
   recalled from the Senate, vote  reconsidered,  bill  amended,  ordered
   reprinted, retaining its place on the special order of third reading
 
 AN  ACT to amend the labor law and the general business law, in relation
   to actions for non-payment of wages
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The labor law is amended by adding a new section 198-e to
 read as follows:
   § 198-E. CONSTRUCTION INDUSTRY WAGE THEFT. 1. A CONTRACTOR  MAKING  OR
 TAKING  A  CONSTRUCTION  CONTRACT  SHALL  ASSUME  LIABILITY FOR ANY DEBT
 RESULTING FROM AN ACTION UNDER SECTION ONE HUNDRED NINETY-EIGHT OF  THIS
 ARTICLE,  OWED  TO A WAGE CLAIMANT OR THIRD PARTY ON THE WAGE CLAIMANT'S
 BEHALF, INCURRED BY A SUBCONTRACTOR AT ANY TIER ACTING UNDER, BY, OR FOR
 THE CONTRACTOR OR ITS SUBCONTRACTORS FOR THE WAGE CLAIMANT'S PERFORMANCE
 OF LABOR.
   2. NO AGREEMENT OR RELEASE BY AN EMPLOYEE OR  SUBCONTRACTOR  TO  WAIVE
 LIABILITY  ASSIGNED  TO  A  CONTRACTOR UNDER THIS SECTION SHALL BE VALID
 EXCEPT AS OTHERWISE PROVIDED HEREIN.   THE PROVISIONS  OF  THIS  SECTION
 SHALL  NOT BE DEEMED TO IMPAIR THE RIGHTS OF A CONTRACTOR TO MAINTAIN AN
 ACTION AGAINST A SUBCONTRACTOR FOR AMOUNTS FOR OWED WAGES THAT ARE  PAID
 BY A CONTRACTOR PURSUANT TO THIS SECTION.
   3.  NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE REMEDIES AVAILABLE
 FOR A CLAIM PURSUANT TO SUBDIVISION ONE OF THIS SECTION  SHALL  ONLY  BE
 CIVIL AND ADMINISTRATIVE ACTIONS.
   4. IN THE CASE OF A PRIVATE CIVIL ACTION BY AN EMPLOYEE, SUCH EMPLOYEE
 MAY  DESIGNATE  ANY  PERSON, ORGANIZATION OR COLLECTIVE BARGAINING AGENT
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD04456-13-1

 A. 3350--A                          2
 
 AUTHORIZED TO  FILE  A  COMPLAINT  WITH  THE  COMMISSIONER  PURSUANT  TO
 SECTION  ONE  HUNDRED NINETY-SIX-A OF THIS ARTICLE, TO MAKE A WAGE CLAIM
 ON  HIS OR HER BEHALF.
   5.  IN  THE  CASE OF AN ACTION AGAINST A SUBCONTRACTOR, THE CONTRACTOR
 SHALL BE CONSIDERED JOINTLY AND SEVERALLY LIABLE FOR ANY  UNPAID  WAGES,
 BENEFITS, WAGE SUPPLEMENTS, AND ANY OTHER REMEDIES AVAILABLE PURSUANT TO
 THE REQUIREMENTS OF SECTION ONE HUNDRED NINETY-EIGHT OF THIS ARTICLE.
   6.  NOTHING HEREIN SHALL PRECLUDE THE ATTORNEY GENERAL FROM BRINGING A
 CIVIL ACTION TO COLLECT UNPAID WAGES AND PENALTIES ON BEHALF OF  EMPLOY-
 EES PURSUANT TO THIS SECTION.
   7. A CONTRACTOR OR ANY OTHER PERSON SHALL NOT EVADE, OR COMMIT ANY ACT
 THAT  NEGATES, THE REQUIREMENTS OF THIS SECTION, PROVIDED, HOWEVER, THAT
 THIS SECTION SHALL NOT BE DEEMED TO PROHIBIT A CONTRACTOR OR SUBCONTRAC-
 TOR FROM ESTABLISHING BY CONTRACT OR ENFORCING ANY OTHER LAWFUL REMEDIES
 AGAINST A SUBCONTRACTOR IT HIRES FOR LIABILITY CREATED BY  VIOLATION  OF
 THIS SECTION, PROVIDED THAT SUCH CONTRACT OR ARRANGEMENT DOES NOT DIMIN-
 ISH  THE  RIGHT  OF EMPLOYEES TO BRING AN ACTION UNDER THE PROVISIONS OF
 THIS SECTION.
   8. AS USED IN THIS SECTION:
   A. "CONSTRUCTION CONTRACT" MEANS A WRITTEN OR ORAL AGREEMENT  FOR  THE
 CONSTRUCTION, RECONSTRUCTION, ALTERATION, MAINTENANCE, MOVING OR DEMOLI-
 TION OF ANY BUILDING, STRUCTURE OR IMPROVEMENT, OR RELATING TO THE EXCA-
 VATION  OF  OR OTHER DEVELOPMENT OR IMPROVEMENT TO LAND. FOR PURPOSES OF
 THIS SECTION, A CONSTRUCTION CONTRACT SHALL NOT  INCLUDE:  ANY  CONTRACT
 WHICH  IS  SUBJECT  TO ARTICLE EIGHT OF THIS CHAPTER; A HOME IMPROVEMENT
 CONTRACT FOR THE PERFORMANCE  OF  A  HOME  IMPROVEMENT  BETWEEN  A  HOME
 IMPROVEMENT  CONTRACTOR AND THE OWNER OF AN OWNER-OCCUPIED DWELLING; AND
 A HOME CONSTRUCTION CONTRACT  FOR  ONE-  OR  TWO-FAMILY  DWELLING  UNITS
 EXCEPT  WHERE  SUCH CONTRACT OR CONTRACTS RESULTS IN THE CONSTRUCTION OF
 MORE THAN TEN ONE- OR TWO-FAMILY OWNER-OCCUPIED DWELLINGS AT ONE PROJECT
 SITE ANNUALLY.
   B. "CONTRACTOR" MEANS  ANY  PERSON,  FIRM,  PARTNERSHIP,  CORPORATION,
 ASSOCIATION,   COMPANY,   ORGANIZATION  OR  OTHER  ENTITY,  INCLUDING  A
 CONSTRUCTION MANAGER, GENERAL OR PRIME CONTRACTOR, JOINT VENTURE, OR ANY
 COMBINATION THEREOF, WHICH ENTERS INTO A CONSTRUCTION CONTRACT  WITH  AN
 OWNER.
   C.  "OWNER" MEANS ANY PERSON, FIRM, PARTNERSHIP, CORPORATION, COMPANY,
 ASSOCIATION OR OTHER ORGANIZATION OR OTHER ENTITY, OR A  COMBINATION  OF
 ANY THEREOF, (WITH AN OWNERSHIP INTEREST, WHETHER THE INTEREST OR ESTATE
 IS  IN FEE, AS VENDEE UNDER A CONTRACT TO PURCHASE, AS LESSEE OR ANOTHER
 INTEREST OR ESTATE LESS THAN FEE) THAT CAUSES A BUILDING,  STRUCTURE  OR
 IMPROVEMENT,  NEW  OR  EXISTING,  TO  BE CONSTRUCTED, ALTERED, REPAIRED,
 MAINTAINED, MOVED OR DEMOLISHED OR THAT CAUSES LAND TO BE  EXCAVATED  OR
 OTHERWISE DEVELOPED OR IMPROVED.
   D.  "SUBCONTRACTOR"  MEANS ANY PERSON, FIRM, PARTNERSHIP, CORPORATION,
 COMPANY, ASSOCIATION, ORGANIZATION OR OTHER ENTITY, OR  ANY  COMBINATION
 THEREOF,  WHICH IS A PARTY TO A CONTRACT WITH A CONTRACTOR, AND/OR PARTY
 TO A CONTRACT WITH  THE  CONTRACTOR'S  SUBCONTRACTORS  AT  ANY  TIER  TO
 PERFORM  ANY  PORTION  OF  WORK  WITHIN  THE  SCOPE  OF THE CONTRACTOR'S
 CONSTRUCTION CONTRACT WITH THE OWNER, INCLUDING WHERE THE  SUBCONTRACTOR
 HAS NO DIRECT PRIVITY OF CONTRACT WITH THE CONTRACTOR.
   9.  ANY  LIABILITY ASSIGNED TO A CONTRACTOR PURSUANT TO THE PROVISIONS
 OF THIS SECTION SHALL BE APPLICABLE FOR ANY CLAIMS  OCCURRING  NO  LATER
 THAN  THREE  YEARS  PRIOR  TO THE INITIATION OF SUCH CLAIM IN A COURT OF
 COMPETENT JURISDICTION OR THE COMMENCEMENT OF  A  CIVIL  ACTION  BROUGHT
 FORTH  BY  THE  ATTORNEY  GENERAL  OR DEPARTMENT. THE PROVISIONS OF THIS

 A. 3350--A                          3
 
 SECTION SHALL NOT BE DEEMED TO DIMINISH, IMPAIR, OR  OTHERWISE  INFRINGE
 ON  ANY  OTHER  RIGHTS OF AN EMPLOYEE PROVIDED PURSUANT TO THIS CHAPTER,
 INCLUDING THE RIGHT OF AN  EMPLOYEE  TO  BRING  AN  ACTION  AGAINST  ANY
 EMPLOYER  UNDER  THE  PROVISIONS  OF SECTION ONE HUNDRED NINETY-EIGHT OF
 THIS ARTICLE.
   10. NOTHING IN THIS SECTION SHALL BE DEEMED TO  DIMINISH  THE  RIGHTS,
 PRIVILEGES,  OR REMEDIES OF ANY EMPLOYEE UNDER ANY COLLECTIVE BARGAINING
 AGREEMENT. THE PROVISIONS OF THIS SECTION MAY BE WAIVED BY A  COLLECTIVE
 BARGAINING  AGREEMENT  WITH  A BONA FIDE BUILDING AND CONSTRUCTION TRADE
 LABOR ORGANIZATION WHICH HAS ESTABLISHED ITSELF, AND/OR ITS  AFFILIATES,
 AS  THE COLLECTIVE BARGAINING REPRESENTATIVE FOR PERSONS PERFORMING WORK
 ON A PROJECT, PROVIDED THAT FOR  SUCH  WAIVER  TO  BE  VALID,  IT  SHALL
 EXPLICITLY  REFERENCE THIS SECTION.  PROVIDED, HOWEVER, THAT SUCH WAIVER
 SHALL NOT DIMINISH OR IMPAIR THE RIGHTS OF AN  EMPLOYEE  PROVIDED  UNDER
 ANY OTHER SECTION OF THIS CHAPTER.
   § 2. The general business law is amended by adding a new section 756-f
 to read as follows:
   §  756-F.  WAGE THEFT PREVENTION AND ENFORCEMENT. 1. UPON REQUEST OF A
 CONTRACTOR, OR A CONTRACTOR'S SUBCONTRACTOR, TO ANY SUBCONTRACTOR  WHICH
 PERFORMS  ANY  PORTION  OF  WORK  WITHIN  THE  SCOPE OF THE CONTRACTOR'S
 CONSTRUCTION CONTRACT WITH AN OWNER, SUCH  SUBCONTRACTOR  SHALL  PROVIDE
 CERTIFIED  PAYROLL  RECORDS  WHICH,  AT  A MINIMUM, CONTAIN ALL LAWFULLY
 REQUIRED INFORMATION REQUIRED FOR ALL EMPLOYEES PROVIDING LABOR  ON  THE
 PROJECT.  SUCH  PAYROLL  RECORDS SHALL CONTAIN SUFFICIENT INFORMATION TO
 APPRISE THE CONTRACTOR OR SUBCONTRACTOR OF SUCH SUBCONTRACTOR'S  PAYMENT
 STATUS IN PAYING WAGES AND MAKING ANY APPLICABLE FRINGE OR OTHER BENEFIT
 PAYMENTS  OR  CONTRIBUTIONS  TO  A THIRD PARTY ON ITS EMPLOYEE'S BEHALF.
 PAYROLL RECORDS SHALL BE MARKED OR REDACTED TO AN EXTENT ONLY TO PREVENT
 DISCLOSURE OF AN INDIVIDUAL'S FULL  SOCIAL  SECURITY  NUMBER  BUT  SHALL
 PROVIDE THE LAST FOUR DIGITS OF THE SOCIAL SECURITY NUMBER.
   2.  UPON  REQUEST OF A CONTRACTOR, OR A CONTRACTOR'S SUBCONTRACTOR, TO
 ANY SUBCONTRACTOR WHICH PERFORMS ANY PORTION OF WORK WITHIN THE SCOPE OF
 THE CONTRACTOR'S CONSTRUCTION CONTRACT WITH AN OWNER, SUCH SUBCONTRACTOR
 SHALL PROVIDE: (A) THE NAMES OF ALL WORKERS OF SUCH SUBCONTRACTOR ON THE
 PROJECT, INCLUDING THE NAMES OF  ALL  THOSE  DESIGNATED  AS  INDEPENDENT
 CONTRACTORS;  (B)  WHEN APPLICABLE, THE NAME OF THE CONTRACTOR'S SUBCON-
 TRACTOR WITH WHOM SUCH SUBCONTRACTOR IS UNDER CONTRACT; (C)  THE  ANTIC-
 IPATED CONTRACT START DATE; (D) THE SCHEDULED DURATION OF WORK; (E) WHEN
 APPLICABLE,  LOCAL  UNIONS  WITH  WHOM SUCH SUBCONTRACTOR IS A SIGNATORY
 CONTRACTOR; AND (F) THE NAME, ADDRESS AND PHONE NUMBER OF A CONTACT  FOR
 SUCH SUBCONTRACTOR.
   3. FAILURE TO TIMELY COMPLY WITH A REQUEST FOR INFORMATION AS PROVIDED
 HEREIN  SHALL BE A BASIS FOR A CONTRACTOR TO WITHHOLD PAYMENTS OWED TO A
 SUBCONTRACTOR AT ANY TIER.
   4. UNLESS OTHERWISE REQUIRED BY LAW,  A  CONTRACTOR  OR  SUBCONTRACTOR
 SHALL  NOT  COMMUNICATE AN INDIVIDUAL'S PERSONAL IDENTIFYING INFORMATION
 TO THE GENERAL PUBLIC. FOR PURPOSES OF THIS SECTION, "PERSONAL IDENTIFY-
 ING INFORMATION" SHALL HAVE THE SAME DEFINITION AS PROVIDED FOR IN PARA-
 GRAPH (D) OF SUBDIVISION ONE OF SECTION TWO HUNDRED THREE-D OF THE LABOR
 LAW.
   5. FOR THE PURPOSES OF THIS SECTION, "CONTRACTOR"  MEANS  ANY  PERSON,
 FIRM,  PARTNERSHIP,  CORPORATION,  ASSOCIATION, COMPANY, ORGANIZATION OR
 OTHER  ENTITY,  INCLUDING  A  CONSTRUCTION  MANAGER,  GENERAL  OR  PRIME
 CONTRACTOR, JOINT VENTURE, OR ANY COMBINATION THEREOF, WHICH ENTERS INTO
 A CONSTRUCTION CONTRACT WITH AN OWNER.

 A. 3350--A                          4
 
   6.  FOR  THE PURPOSES OF THIS SECTION, "OWNER" MEANS ANY PERSON, FIRM,
 PARTNERSHIP, CORPORATION, COMPANY, ASSOCIATION OR OTHER ORGANIZATION  OR
 OTHER ENTITY, OR A COMBINATION OF ANY THEREOF, (WITH AN OWNERSHIP INTER-
 EST,  WHETHER  THE  INTEREST  OR  ESTATE  IS  IN  FEE, AS VENDEE UNDER A
 CONTRACT  TO PURCHASE, AS LESSEE OR ANOTHER INTEREST OR ESTATE LESS THAN
 FEE) THAT CAUSES A BUILDING, STRUCTURE OR IMPROVEMENT, NEW OR  EXISTING,
 TO BE CONSTRUCTED, ALTERED, REPAIRED, MAINTAINED, MOVED OR DEMOLISHED OR
 THAT CAUSES LAND TO BE EXCAVATED OR OTHERWISE DEVELOPED OR IMPROVED.
   7. FOR THE PURPOSES OF THIS SECTION, "SUBCONTRACTOR" MEANS ANY PERSON,
 FIRM,  PARTNERSHIP,  CORPORATION,  COMPANY, ASSOCIATION, ORGANIZATION OR
 OTHER ENTITY, OR ANY COMBINATION THEREOF, WHICH IS A PARTY TO A CONTRACT
 WITH A CONTRACTOR, AND/OR PARTY TO  A  CONTRACT  WITH  THE  CONTRACTOR'S
 SUBCONTRACTORS  AT  ANY  TIER, TO PERFORM ANY PORTION OF WORK WITHIN THE
 SCOPE OF THE CONTRACTOR'S CONSTRUCTION CONTRACT WITH THE OWNER,  INCLUD-
 ING  WHERE  THE SUBCONTRACTOR HAS NO DIRECT PRIVITY OF CONTRACT WITH THE
 CONTRACTOR.
   § 3. Severability. If any provision of this act, or any application of
 any provision of this act, is held to be invalid, that shall not  affect
 the  validity or effectiveness of any other provision of this act, or of
 any other application of any provision of this act, which can  be  given
 effect  without  that  provision  or  application;  and to that end, the
 provisions and applications of this act are severable.
   § 4. This act shall take effect on the one hundred twentieth day after
 it shall have become a law and shall  apply  to  construction  contracts
 entered  into,  renewed,  modified or amended on or after such effective
 date.