S T A T E O F N E W Y O R K
________________________________________________________________________
373--B
2023-2024 Regular Sessions
I N A S S E M B L Y
January 6, 2023
___________
Introduced by M. of A. BRONSON, TAYLOR, DARLING, ROZIC, CRUZ, GLICK,
L. ROSENTHAL, SIMONE, LAVINE, BORES, GONZALEZ-ROJAS, SEAWRIGHT, BENE-
DETTO, REYES, WEPRIN, BRABENEC, SILLITTI, RAGA, SLATER, BRAUNSTEIN,
DINOWITZ, DURSO, ZEBROWSKI, ARDILA, STECK, RA, BURGOS, EPSTEIN, RAJKU-
MAR, GIBBS, TAPIA, HYNDMAN, BERGER, LEE, BURDICK, JACOBSON, K. BROWN,
BENDETT, REILLY, McDONOUGH, PHEFFER AMATO, MIKULIN -- read once and
referred to the Committee on Labor -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee -- recommitted to the Committee on Labor in accordance with Assem-
bly Rule 3, sec. 2 -- reported and referred to the Committee on Ways
and Means -- reported and referred to the Committee on Rules -- Rules
Committee discharged, bill amended, ordered reprinted as amended and
recommitted to the Committee on Rules
AN ACT to amend the labor law, in relation to inclusion of certain off-
site custom fabrication as public work for the purposes of payment of
prevailing wage; and providing for the repeal of certain provisions
upon expiration thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative findings and intent. The legislature finds and
declares that the prevailing wage law was established to provide fair
and equitable working conditions, wages and supplementary benefits for
persons employed on public works construction projects.
The legislature further finds and declares that there are growing
number of instances where custom fabricated materials are fabricated off
the public work job site either to meet the unique specifications of the
project subject to a public work contract or for the contractor's
convenience or to evade the wage requirements imposed by the prevailing
wage law.
The legislature further finds and declares that in many instances the
prevailing wage is not paid to persons involved in off-site fabrication
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01720-05-4
A. 373--B 2
of materials which are used specifically for public works projects to
the detriment of the workers at the site and the local economy where the
public work is situated.
The legislature further finds and declares that, in effect, various
custom fabricated materials on local public works construction projects
are being entirely outsourced to workers at a location or locations away
from the project site or in foreign jurisdictions, thereby intentionally
evading the payment of the prevailing wage and benefit package by elimi-
nating the employment of workers at the site of the project to the
detriment of those workers and the local economy.
It is the intent of the legislature that construction and fabrication
done off the public work site for specific use only in public work
projects be compensated at the prevailing wage rate.
§ 2. Subdivision 3 of section 220 of the labor law is amended by
adding a new paragraph (f) to read as follows:
(F) (I) FOR THE PURPOSES OF THIS SUBDIVISION CONTRACTORS OR SUBCON-
TRACTORS ENGAGED IN CUSTOM FABRICATION SHALL NOT BE REGARDED AS MATERIAL
SUPPLIERS. FOR THE PURPOSES OF THIS SUBDIVISION, A LEGAL DAY'S WORK FOR
WHICH THE PREVAILING RATE OF WAGES FOR THE NEW YORK COUNTY IN WHICH THE
PUBLIC WORKS PROJECT IS SITUATED SHALL BE PAID TO LABORERS, WORKERS AND
MECHANICS SHALL INCLUDE CUSTOM FABRICATION REGARDLESS OF WHETHER THE
CUSTOM FABRICATION OCCURS ON-SITE, OFF-SITE OR IN ANOTHER JURISDICTION
OUTSIDE THE STATE. IT SHALL BE A CONDITION OF THE CONTRACT CONCERNING
ALL SUCH CUSTOM FABRICATION WORK THAT THE CONTRACTOR OR EMPLOYER AWARDED
THE PUBLIC WORK CONTRACT, EXCEPT WHERE THE PROJECT INCLUDES FEDERAL
FUNDING THAT TRIGGERS FEDERAL RULES FOR WAGE REQUIREMENTS, AND ANY
SUBCONTRACTOR THERETO SHALL COVENANT TO PAY THE ON-SITE PREVAILING WAGE
REQUIRED FOR WORKERS AT THE SITE OF THE PUBLIC WORK PROJECT TO THOSE
WORKERS PERFORMING THE CUSTOM FABRICATION WHERE A CONTRACT FOR CUSTOM
FABRICATION EXCEEDS TWO HUNDRED FIFTY THOUSAND DOLLARS OR FOR CONTRACTS
WHERE THE CUMULATIVE ANNUAL TOTAL OF CONTRACTS PERFORMED BY THE CUSTOM
FABRICATOR HAS EXCEEDED FIVE HUNDRED THOUSAND DOLLARS. IN ADDITION,
CUSTOM FABRICATORS WHO CHOOSE TO PERFORM A PUBLIC WORKS CONTRACT EXCEED-
ING TWO HUNDRED FIFTY THOUSAND DOLLARS OR WHO EXCEED FIVE HUNDRED THOU-
SAND DOLLARS IN PUBLIC WORKS CONTRACTS IN TOTAL IN A SINGLE YEAR SHALL
BE REQUIRED TO PAY THE ON-SITE PREVAILING WAGE TO THOSE WORKERS PERFORM-
ING CUSTOM FABRICATION FOR SUBSEQUENT PUBLIC WORKS CONTRACTS, REGARDLESS
OF THE AMOUNT, THEREAFTER FOR AT LEAST ONE YEAR AND SHALL REGISTER WITH
THE DEPARTMENT UNDER SECTION TWO HUNDRED TWENTY-I OF THIS ARTICLE AND
REMAIN REGISTERED FOR AT LEAST ONE YEAR IN ORDER TO QUALIFY TO PERFORM
FUTURE CUSTOM FABRICATION WITH REGARD TO PUBLIC WORKS PROJECTS. EACH
CONTRACTOR OR SUBCONTRACTOR WHO EMPLOYS WORKERS OFF-SITE FOR THE CUSTOM
FABRICATION WORK RELATED TO A PUBLIC WORK PROJECT SHALL MAINTAIN CERTI-
FIED PAYROLLS FOR THOSE WORKERS AND PROVIDE SUCH PAYROLLS, WITH ORIGINAL
CERTIFICATIONS, TO THE DEPARTMENT AT LEAST ONCE EVERY THIRTY DAYS. FOR
THE PURPOSES OF THIS SUBDIVISION THE TERM "CUSTOM FABRICATION" SHALL
INCLUDE, BUT NOT BE LIMITED TO, THE FABRICATION OF EXTERIOR OR INTERIOR
WALL PANEL SYSTEMS, THE FABRICATION OF WOODWORK, CASES, CABINETS OR
COUNTERS AND THE FABRICATION OF ELECTRICAL, PLUMBING, HEATING, COOLING,
VENTILATION OR EXHAUST DUCT SYSTEMS INCLUDING THE DRAFTING OF TECHNICAL
DRAWINGS AND PLANS, AND MECHANICAL INSULATION SOLELY AND SPECIFICALLY
DESIGNED AND ENGINEERED FOR INSTALLATION IN THE CONSTRUCTION, REPAIR OR
RENOVATION OF A BUILDING WHICH IS THE SUBJECT OF A CONTRACT TO WHICH THE
STATE, A DEPARTMENT OF THE STATE, A BOARD OR OFFICER IN THE STATE, A
MUNICIPAL CORPORATION, A PUBLIC BENEFIT CORPORATION OR A COMMISSION
APPOINTED PURSUANT TO LAW IS A PARTY.
A. 373--B 3
(II) THE DEPARTMENT OF JURISDICTION, AS DEFINED IN SUBDIVISION THREE-A
OF THIS SECTION AND INCLUDING ANY ENTITY TO WHOM SUCH DEPARTMENT OF
JURISDICTION DELEGATES THEIR AUTHORITY, SHALL BE REQUIRED TO REPORT TO
THE FISCAL OFFICER THE INTENTION TO CONTRACT FOR CUSTOM, OFF-SITE FABRI-
CATION OF ANY MATERIALS ON ALL CONTRACTS, REGARDLESS OF THE AMOUNT,
WHICH MAY INCLUDE THE EMPLOYMENT OF LABORERS, WORKERS OR MECHANICS IN
THE APPLICATION TO THE FISCAL OFFICER FOR THE APPROVAL OF SUCH CONTRACT.
THE DEPARTMENT OF JURISDICTION'S REPORT SHALL STATE THE NAME AND ADDRESS
OF THE OFF-SITE, CUSTOM FABRICATOR, IDENTIFY THE CUSTOM MATERIALS THAT
ARE BEING FABRICATED OFF-SITE AND THE QUANTITY THEREOF, THE ESTIMATED
AND ACTUAL COST OF THE OFF-SITE FABRICATION, INCLUDING THE TRANSPORTA-
TION OF THE MATERIALS TO THE SITE OF THE WORK AND THE ESTIMATED NUMBER
OF WORKERS EMPLOYED TO COMPLETE THE CUSTOM FABRICATION AT THE OFF-SITE
LOCATION. UPON RECEIPT OF THE DEPARTMENT OF JURISDICTION'S REPORT, THE
FISCAL OFFICER SHALL MAKE AVAILABLE SAID REPORT TO THE PUBLIC THROUGH
ITS WEBSITE AND, SIMILARLY, MAINTAIN AND PUBLISH ON ITS WEBSITE ALL DATA
SPECIFIED HEREIN FOR EACH CUSTOM FABRICATOR.
(III) THE FISCAL OFFICER SHALL PRODUCE AN ANNUAL REPORT ON THE ECONOM-
IC IMPACT TO THE STATE BUSINESSES AND RESIDENTS DUE TO OFF-SITE FABRI-
CATION.
§ 3. This act shall take effect on the sixtieth day after it shall
have become a law and shall apply only to those contracts put out to bid
on or after such effective date; provided, however, that subparagraph
(i) of paragraph (f) of subdivision 3 of section 220 of the labor law,
as added by section two of this act, shall expire and be deemed repealed
upon the ruling of a court of competent jurisdiction that the require-
ments of such subparagraph are unenforceable on fabricators located
outside the state; provided, further, that the commissioner of labor
shall notify the legislative bill drafting commission upon the occur-
rence of such a court ruling in order that the commission may maintain
an accurate and timely effective data base of the official text of the
laws of the state of New York in furtherance of effectuating the
provisions of section 44 of the legislative law and section 70-b of the
public officers law.