NY State Senate Bill S2766C

Current Bill Status Via A3350 - Passed Senate & Assembly

Introduced
In Committee
On Floor Calendar
- Passed Senate
- Passed Assembly
Delivered to Governor
Signed/Vetoed by Governor

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Actions

view actions (13)

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 02, 2021	returned to assembly passed senate 3rd reading cal.1110 substituted for s2766c
Jun 02, 2021	substituted by a3350a
May 26, 2021	amended on third reading 2766c
May 25, 2021	amended on third reading 2766b
May 24, 2021	advanced to third reading
May 20, 2021	2nd report cal.
May 18, 2021	1st report cal.1110
May 13, 2021	print number 2766a
May 13, 2021	amend (t) and recommit to labor
Jan 25, 2021	referred to labor

Votes

view votes

Jun 2, 2021 - floor Vote

A3350A

floor

Aye

Nay

Absent

Excused

Abstained

May 18, 2021 - Labor committee Vote

S2766

committee

Aye

Nay

Aye with Reservations

Absent

Excused

Abstained

Bill Amendments

Original

C (Active)

Original

C (Active)

Co-Sponsors

view additional co-sponsors

S2766 - Details

See Assembly Version of this Bill:: A3350
Law Section:: Labor Law
Laws Affected:: Add §198-e, Lab L; add §756-f, Gen Bus L
Versions Introduced in 2019-2020 Legislative Session:: S7665, A9658

S2766 - Summary

Provides that a contractor making or taking a construction contract shall assume liability for any debt resulting from making a wage claim, 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 for the wage claimant's performance of labor; provides for wage theft prevention and enforcement.

S2766 - Sponsor Memo

 
BILL NUMBER: S2766

SPONSOR: RAMOS
 
TITLE OF BILL:

An act to amend the labor law, in relation to actions for non-payment of
wages

 
PURPOSE OR GENERAL IDEA OF BILL:

The purpose of this bill is to amend the existing wage theft law to
increase the likelihood that exploited workers in the construction
industry will be able to secure payment and collect unpaid wages and
benefits for work that has already been performed.

 
SUMMARY OF PROVISIONS:

Section one adds a new section 198-e to the Labor Law pertaining to
construction industry wage theft. Pursuant to this new section, a
construction contractor, as defined within, would assume liability for
any unpaid wages, benefits, damages, attorney fees related to a civil or

administrative action by a wage claimant or the Department of Labor
against a subcontractor, as defined within, of such contractor.

Section two provides a severability clause.

Section three establishes an effective date.

 
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):

N/A

 
JUSTIFICATION:

This bill would provide New York construction workers with a new remedy
against wage theft. Currently a worker may bring a private lawsuit
against his/her direct employer to collect any unpaid wages, including
overtime and fringe benefits. This is a major issue in the construction
industry where, oftentimes, such direct employer is an unscrupulous
subcontractor or labor broker willing to hide assets, change corporate
identity and take part in other unscrupulous practices to avoid liabil-
ity and make themselves judgment proof from a wage theft action.

By holding the prime contractor of the construction project liable for
all subcontractors that it chooses to utilize on a jobsite, New York
State would go a long way towards ensuring that exploited construction
workers are quickly able to collect unpaid wages, while creating an
incentive for the construction industry to better self-police itself In
turn, this will hopefully lead to a decreased burden on State and City
Agencies, including the Department of Labor and Workers' Compensation
Board, in terms of enforcement resources.

 
PRIOR LEGISLATIVE HISTORY:

2019-20: S7665/A9658 - Referred to Senate & Assembly Labor committees

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.
 
EFFECTIVE DATE:
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 date.

S2766 - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2766
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 25, 2021
                                ___________
 
 Introduced  by  Sen.  RAMOS  -- read twice and ordered printed, and when
   printed to be committed to the Committee on Labor
 
 AN ACT to amend the labor 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.
 THE PROVISIONS OF THIS SECTION SHALL NOT BE DEEMED TO IMPAIR THE  RIGHTS
 OF  A  CONTRACTOR TO MAINTAIN AN ACTION AGAINST A SUBCONTRACTOR 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
 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,
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04456-02-1

 S. 2766                             2
 
 BENEFITS,  WAGE  SUPPLEMENTS,  PENALTIES, LIQUIDATED DAMAGES, ATTORNEYS'
 FEES AND ANY OTHER COSTS RESULTING FROM SUCH ACTION.
   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. 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.
   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 THE
 CONTRACTOR'S SUBCONTRACTORS 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.
   § 2. 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.
   § 3. 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.

Co-Sponsors

view additional co-sponsors

S2766A - Details

See Assembly Version of this Bill:: A3350
Law Section:: Labor Law
Laws Affected:: Add §198-e, Lab L; add §756-f, Gen Bus L
Versions Introduced in 2019-2020 Legislative Session:: S7665, A9658

S2766A - Summary

S2766A - Sponsor Memo

 
BILL NUMBER: S2766A

SPONSOR: RAMOS
 
PURPOSE OR GENERAL IDEA OF BILL:

The purpose of this bill is to amend the existing wage theft law to
increase the likelihood that exploited workers in the construction
industry will be able to secure payment and collect unpaid wages and
benefits for work that has already been performed.

 
SUMMARY OF PROVISIONS:

Section one adds a new section 198-e to the Labor Law pertaining to
construction industry wage theft. Pursuant to this new section, a
construction contractor, as defined within, would assume liability for
any unpaid wages, benefits, damages, attorney fees related to a civil or
administrative action by a wage claimant or the Department of Labor
against a subcontractor, as defined within, of such contractor.

Section two amends section 756-a of the General Business Law to clarefi-
ty that a contractor may withhold payment to a subcontractor or lower
tier subcontractor for failure to provide certain payroll records.

Section three provides a severability clause. Section four establishes
an effective date.

 
JUSTIFICATION:

This bill would provide New York construction workers with a new remedy
against wage theft. Currently a worker may bring a private lawsuit
against his/her direct employer to collect any unpaid wages, including
overtime and fringe benefits. This is a major issue in the construction
industry where, oftentimes, such direct employer is an unscrupulous
subcontractor or labor broker willing to hide assets, change corporate
identity and take part in other unscrupulous practices to avoid liabil-
ity and make themselves judgment proof from a wage theft action.

By holding the prime contractor of the construction project liable for
all subcontractors that it chooses to utilize on a jobsite, New York
State would go a long way towards ensuring that exploited construction
workers are quickly able to collect unpaid wages, while creating an
incentive for the construction industry to better self-police itself in
turn, this will hopefully lead to a decreased burden on State and City
Agencies, including the Department of Labor and Workers' Compensation
Board, in terms of enforcement resources.

 
PRIOR LEGISLATIVE HISTORY:

2019-20: 57665/A9658 - Referred to Senate & Assembly Labor committees

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
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 date.

S2766A - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2766--A
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 25, 2021
                                ___________
 
 Introduced  by Sens. RAMOS, ADDABBO, BAILEY, BENJAMIN, BIAGGI, BRISPORT,
   BROOKS, COMRIE, GAUGHRAN, HINCHEY, HOYLMAN, JACKSON, MANNION, MATTERA,
   MAY, MAYER, MYRIE, PARKER, REICHLIN-MELNICK, RIVERA, SALAZAR, SANDERS,
   SAVINO, SEPULVEDA, SERRANO, SKOUFIS, STAVISKY, THOMAS  --  read  twice
   and ordered printed, and when printed to be committed to the Committee
   on  Labor  -- committee discharged, bill amended, ordered reprinted as
   amended and recommitted to said committee
 
 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 OR LOWER TIERED 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.

                                                            LBD04456-03-1

 S. 2766--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 AT ANY TIER 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 DIMINISH 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  THE
 CONTRACTOR'S  SUBCONTRACTORS  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.
   9. 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 SECTION SHALL NOT BE DEEMED TO DIMINISH,  IMPAIR,  OR

 S. 2766--A                          3
 
 OTHERWISE  INFRINGE ON ANY OTHER RIGHTS OF AN EMPLOYEE PROVIDED PURSUANT
 TO THIS CHAPTER.
   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.
   § 2. Section 756-a of the general business law is amended by adding  a
 new subdivision 5 to read as follows:
   5.  WAGE  THEFT  PREVENTION  AND  ENFORCEMENT.  (A)  UPON REQUEST OF A
 CONTRACTOR OR SUBCONTRACTOR TO ANY LOWER TIER SUBCONTRACTOR, THE SUBCON-
 TRACTOR OR LOWER TIER  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 THE LOWER TIER  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 OBLITERATED ONLY TO PREVENT DISCLOSURE OF AN
 INDIVIDUAL'S FULL SOCIAL SECURITY NUMBER BUT SHALL PROVIDE THE LAST FOUR
 DIGITS OF THE SOCIAL SECURITY NUMBER.
   (B) UPON REQUEST OF A CONTRACTOR OR SUBCONTRACTOR TO  ANY  LOWER  TIER
 SUBCONTRACTOR,  THE  SUBCONTRACTOR  OR  LOWER  TIER  SUBCONTRACTOR SHALL
 PROVIDE THE NAMES OF ALL ITS WORKERS ON THE PROJECT, INCLUDING THE NAMES
 OF ALL THOSE DESIGNATED AS INDEPENDENT  CONTRACTORS,  THE  NAME  OF  THE
 SUBCONTRACTOR  WITH WHOM THE LOWER TIER SUBCONTRACTOR IS UNDER CONTRACT,
 THE ANTICIPATED CONTRACT START DATE, SCHEDULED DURATION  OF  WORK,  WHEN
 APPLICABLE,  LOCAL  UNIONS  WITH  WHOM  THE  SUBCONTRACTOR OR LOWER TIER
 SUBCONTRACTOR IS A SIGNATORY CONTRACTOR, AND THE NAME, ADDRESS AND PHONE
 NUMBER OF A CONTACT FOR THE LOWER TIER SUBCONTRACTOR.
   (C) 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 OR LOWER TIER SUBCONTRACTOR.
   (D) FOR PURPOSES OF THIS SUBDIVISION, "LOWER TIER SUBCONTRACTOR" SHALL
 MEAN ANY PERSON, FIRM, PARTNERSHIP, CORPORATION,  COMPANY,  ASSOCIATION,
 ORGANIZATION  OR  OTHER  ENTITY,  OR ANY COMBINATION THEREOF, WHICH IS A
 PARTY TO A CONTRACT WITH A SUBCONTRACTOR OR OTHER LOWER TIER SUBCONTRAC-
 TOR TO PERFORM ANY PORTION OF WORK WITHIN THE SCOPE OF THE  CONTRACTOR'S
 CONTRACT WITH THE OWNER.
   § 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.

Co-Sponsors

view additional co-sponsors

S2766B - Details

See Assembly Version of this Bill:: A3350
Law Section:: Labor Law
Laws Affected:: Add §198-e, Lab L; add §756-f, Gen Bus L
Versions Introduced in 2019-2020 Legislative Session:: S7665, A9658

S2766B - Summary

S2766B - Sponsor Memo

 
BILL NUMBER: S2766B

SPONSOR: RAMOS
 
TITLE OF BILL:

An act to amend the labor law and the general business law, in relation
to actions for non-payment of wages

 
PURPOSE OR GENERAL IDEA OF BILL:

The purpose of this bill is to amend the existing wage theft law to
increase the likelihood that exploited workers in the construction
industry will be able to secure payment and collect unpaid wages and
benefits for work that has already been performed.

 
SUMMARY OF PROVISIONS:

Section one adds a new section 198-e to the Labor Law pertaining to
construction industry wage theft. Pursuant to this new section, a
construction contractor, as defined within, would assume liability for
any unpaid wages, benefits, damages, attorney fees related to a civil or

administrative action by a wage claimant or the Department of Labor
against a subcontractor, as defined within, of such contractor.

Section two amends section 756-a of the General Business Law to clarefi-
ty that a contractor may withhold payment to a subcontractor or lower
tier subcontractor for failure to provide certain payroll records.

Section three provides a severability clause. Section four establishes
an effective date.

 
JUSTIFICATION:

This bill would provide New York construction workers with a new remedy
against wage theft. Currently a worker may bring a private lawsuit
against his/her direct employer to collect any unpaid wages, including
overtime and fringe benefits. This is a major issue in the construction
industry where, oftentimes, such direct employer is an unscrupulous
subcontractor or labor broker willing to hide assets, change corporate
identity and take part in other unscrupulous practices to avoid liabil-
ity and make themselves judgment proof from a wage theft action.

By holding the prime contractor of the construction project liable for
all subcontractors that it chooses to utilize on a jobsite, New York
State would go a long way towards ensuring that exploited construction
workers are quickly able to collect unpaid wages, while creating an
incentive for the construction industry to better self-police itself in
turn, this will hopefully lead to a decreased burden on State and City
Agencies, including the Department of Labor and Workers' Compensation
Board, in terms of enforcement resources.

 
PRIOR LEGISLATIVE HISTORY:

2019-20: 57665/A9658 - Referred to Senate & Assembly Labor committees

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
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 date.

S2766B - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2766--B
     Cal. No. 1110
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 25, 2021
                                ___________
 
 Introduced  by Sens. RAMOS, ADDABBO, BAILEY, BENJAMIN, BIAGGI, BRISPORT,
   BROOKS, COMRIE, GAUGHRAN, GOUNARDES, HINCHEY, HOYLMAN,  JACKSON,  LIU,
   MANNION, MATTERA, MAY, MAYER, MYRIE, PARKER, REICHLIN-MELNICK, RIVERA,
   RYAN, SALAZAR, SANDERS, SAVINO, SEPULVEDA, SERRANO, SKOUFIS, STAVISKY,
   THOMAS  --  read  twice  and  ordered  printed, and when printed to be
   committed to the Committee on  Labor  --  committee  discharged,  bill
   amended,  ordered reprinted as amended and recommitted to said commit-
   tee -- reported favorably from said committee, ordered  to  first  and
   second  report,  ordered  to  a  third  reading,  amended  and ordered
   reprinted, retaining its place in the 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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04456-07-1

 S. 2766--B                          2
 
   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
 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.

 S. 2766--B                          3
 
   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
 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 MEANING AS DEFINED IN PARAGRAPH (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

 S. 2766--B                          4

 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.
   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.

Co-Sponsors

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S2766C (ACTIVE) - Details

See Assembly Version of this Bill:: A3350
Law Section:: Labor Law
Laws Affected:: Add §198-e, Lab L; add §756-f, Gen Bus L
Versions Introduced in 2019-2020 Legislative Session:: S7665, A9658

S2766C (ACTIVE) - Summary

S2766C (ACTIVE) - Sponsor Memo

 
BILL NUMBER: S2766C

SPONSOR: RAMOS
 
TITLE OF BILL:

An act to amend the labor law and the general business law, in relation
to actions for non-payment of wages

 
PURPOSE OR GENERAL IDEA OF BILL:

The purpose of this bill is to amend the existing wage theft law to
increase the likelihood that exploited workers in the construction
industry will be able to secure payment and collect unpaid wages and
benefits for work that has already been performed.

 
SUMMARY OF PROVISIONS:

Section one adds a new section 198-e to the. Labor Law pertaining to
construction industry wage theft. Pursuant to this new section, a
construction contractor, as defined within, would assume liability for
any unpaid wages, benefits, damages, attorney fees related to a civil or

administrative action by a wage claimant or the Department of Labor
against a subcontractor, as defined within, of such contractor.

Section two amends section 756-a of the General Business Law to clarify
that a contractor may withhold payment to a subcontractor or lower tier
subcontractor for failure to provide certain payroll records.

Section three provides a severability clause.

Section four establishes an effective date.

 
JUSTIFICATION:

This bill would provide New York construction workers with a new remedy
against wage theft. Currently a worker may bring a private lawsuit
against his/her direct employer to collect any unpaid wages, including
overtime and fringe benefits. This is a major issue in the construction
industry where, oftentimes, such direct employer is an unscrupulous
subcontractor or labor broker willing to hide assets, change corporate
identity and take part in other unscrupulous practices to avoid liabil-
ity and make themselves judgment proof from a wage theft action.

By holding the prime contractor of the construction project liable for
all subcontractors that it chooses to utilize on a jobsite, New York
State would go a long way towards ensuring that exploited construction
workers are quickly able to collect unpaid wages, while creating an
incentive for the construction industry to better self-police itself in
turn, this will hopefully lead to a decreased burden on State and City
Agencies, including the Department of Labor and Workers' Compensation
Board, in terms of enforcement resources.

 
PRIOR LEGISLATIVE HISTORY:

2019-20: S7665/A9658 - Referred to Senate & Assembly Labor committees

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.
 
EFFECTIVE DATE:
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 date.

S2766C (ACTIVE) - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2766--C
     Cal. No. 1110
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 25, 2021
                                ___________
 
 Introduced  by Sens. RAMOS, ADDABBO, BAILEY, BENJAMIN, BIAGGI, BRISPORT,
   BROOKS, COMRIE, GAUGHRAN, GOUNARDES, HINCHEY, HOYLMAN,  JACKSON,  LIU,
   MANNION, MATTERA, MAY, MAYER, MYRIE, PARKER, REICHLIN-MELNICK, RIVERA,
   RYAN, SALAZAR, SANDERS, SAVINO, SEPULVEDA, SERRANO, SKOUFIS, STAVISKY,
   THOMAS  --  read  twice  and  ordered  printed, and when printed to be
   committed to the Committee on  Labor  --  committee  discharged,  bill
   amended,  ordered reprinted as amended and recommitted to said commit-
   tee -- reported favorably from said committee, ordered  to  first  and
   second  report,  ordered  to  a  third  reading,  amended  and ordered
   reprinted, retaining its place in the order of third reading --  again
   amended  and  ordered  reprinted,  retaining its place in the 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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD04456-12-1

 S. 2766--C                          2
 
   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
 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.

 S. 2766--C                          3
 
   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
 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.

 S. 2766--C                          4

   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.
   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.

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The New York State Senate

senate Bill S2766C

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Current Bill Status Via A3350 - Passed Senate & Assembly

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Votes

Jun 2, 2021 - floor Vote

Floor Vote: Jun 2, 2021

May 18, 2021 - Labor committee Vote

Committee Vote: May 18, 2021

Bill Amendments

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S2766 - Details

S2766 - Summary

S2766 - Sponsor Memo

S2766 - Bill Text download pdf

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S2766A - Details

S2766A - Summary

S2766A - Sponsor Memo

S2766A - Bill Text download pdf

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S2766B - Details

S2766B - Summary

S2766B - Sponsor Memo

S2766B - Bill Text download pdf

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S2766C (ACTIVE) - Details

S2766C (ACTIVE) - Summary

S2766C (ACTIVE) - Sponsor Memo

S2766C (ACTIVE) - Bill Text download pdf

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senate Bill S2766C

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Sponsored By

Current Bill Status Via A3350 - Passed Senate & Assembly

Your Voice

Actions

Votes

Jun 2, 2021 - floor Vote

Floor Vote: Jun 2, 2021

May 18, 2021 - Labor committee Vote

Committee Vote: May 18, 2021

Bill Amendments

Co-Sponsors

S2766 - Details

S2766 - Summary

S2766 - Sponsor Memo

S2766 - Bill Text download pdf

Co-Sponsors

S2766A - Details

S2766A - Summary

S2766A - Sponsor Memo

S2766A - Bill Text download pdf

Co-Sponsors

S2766B - Details

S2766B - Summary

S2766B - Sponsor Memo

S2766B - Bill Text download pdf

Co-Sponsors

S2766C (ACTIVE) - Details