S. 1648--A 2
of our communities will continue to grow and will play an ever more
significant part in the welfare and educational experience of our citi-
zens and in maintaining the paramount position of this state in the
nation and in the world as a cultural center.
THE LEGISLATURE FURTHER FINDS THAT THE INVESTMENT OF FUNDS BY ARTS
AGENCIES AS DEFINED IN ARTICLE EIGHT-B OF THE LABOR LAW CAN PROVIDE A
VITAL ECONOMIC ENGINE TO ASSIST, NURTURE, DEVELOP, AND PROMOTE REGIONAL
ECONOMIC DEVELOPMENT, THE STATE TOURISM INDUSTRY AND THE GROWTH OF JOBS
IN THE STATE. INDEED, ATTENDEES OF ARTS PROGRAMMING GENERATE ECONOMIC
ACTIVITY IN NEW YORK STATE FAR BEYOND THE COST OF ADMISSION, FROM FOOD
AND DRINK, TO PARKING, TRANSPORTATION, TRAVEL, AND CHILDCARE REVENUES,
AMONG OTHERS.
THE PROFESSIONAL PERFORMERS AND RELATED OR SUPPORTING PROFESSIONALS
EMPLOYED ON PROJECTS AND PRODUCTIONS THAT CREATE THE PERFORMING AND FINE
ARTS, AND ARE THE BASIS OF THE ARTS ECONOMY IN NEW YORK STATE AND MUST
NOT BE LEFT BEHIND. THEREFORE, THE STATE LEGISLATURE FINDS THAT ARTS
AGENCIES HAVE A SUBSTANTIAL AND COMPELLING PROPRIETARY INTEREST IN ANY
FUNDS AWARDED IN THE FINE AND PERFORMING ARTS. THE LEGISLATURE HEREBY
DECLARES THAT THE MANDATE OF A LIVING WAGE FOR PROJECTS AWARDED GRANTS
BY ARTS AGENCIES IS CENTRAL TO ENSURING THE CONTINUED AVAILABILITY OF
THE FINE AND PERFORMING ARTS IN NEW YORK STATE, AND THE CONCOMITANT
ECONOMIC BENEFITS THEREWITH, AND FURTHER THAT THE STATE'S PROPRIETARY
INTEREST WITH REGARD TO SUCH FUNDS COULD BE ADVERSELY AFFECTED BY
LABOR-MANAGEMENT CONFLICT.
It is further declared that all activities undertaken by the state in
carrying out this policy shall be directed toward encouraging and
assisting rather than in any ways limiting the freedom of artistic
expression that is essential for the well-being of the arts.
§ 2. Paragraph (d) of subdivision 1 of section 3.19 of the arts and
cultural affairs law, as added by chapter 16 of the laws of 2017, is
amended to read as follows:
(d) ANY ORGANIZATION APPLYING FOR GRANT FUNDING FROM AN ARTS AGENCY AS
DEFINED BY THIS CHAPTER SHALL PROVIDE TO THE ARTS AGENCY A CERTIFICATION
THAT IT WILL ENTER INTO A LABOR PEACE AGREEMENT WITH AT LEAST ONE BONA
FIDE LABOR ORGANIZATION THAT REPRESENTS EMPLOYEES OF SUCH ORGANIZATION
INCLUDING BUT NOT LIMITED TO ACTORS, STAGE MANAGERS, PRODUCTION ASSIST-
ANTS, SCENIC ARTISTS, SCENIC DESIGNERS, COSTUME DESIGNERS, LIGHTING
DESIGNERS, SOUND DESIGNERS, PROJECTION DESIGNERS, GRAPHIC ARTISTS, ART
AND COSTUME DEPARTMENT COORDINATORS, USHERS, TICKET TAKERS, LINE DIREC-
TORS, PRESS AGENTS, COMPANY MANAGERS, THEATRE MANAGERS, ENGINEERS, MUSI-
CIANS, SINGERS, CHOREOGRAPHERS, DANCERS, STAGING STAFF, BALLET SCHOOL
FACULTY, DIRECTORS, FIGHT DIRECTORS, INTIMACY DIRECTORS, DRESSERS,
WARDROBERS, COSTUMERS, STITCHERS, TAILORS, DRAPERS, SHOPPERS, LAUNDRY
WORKERS, DYERS, COSTUME TECHNICIANS, MILLINERS, CRAFTSPEOPLE, CHILD
ACTORS, GUARDIANS, BOX OFFICE TREASURERS, FIRST ASSISTANTS, AND TICKET
SELLERS EITHER WHERE SUCH BONA FIDE LABOR ORGANIZATION IS ACTIVELY
REPRESENTING EMPLOYEES PROVIDING SERVICES COVERED BY THE ORGANIZATION
SEEKING SUCH GRANT FUNDING OR UPON NOTICE BY A BONA FIDE LABOR ORGANIZA-
TION THAT IS ATTEMPTING TO REPRESENT EMPLOYEES WHO WILL PROVIDE SERVICES
TO THE ORGANIZATION SEEKING SUCH GRANT FUNDING. THE MAINTENANCE OF SUCH
A LABOR PEACE AGREEMENT SHALL BE AN ONGOING MATERIAL CONDITION FOR
RECEIPT OF GRANT FUNDING UNDER THIS ARTICLE. FOR PURPOSES OF THIS
SECTION, "LABOR PEACE AGREEMENT" MEANS AN AGREEMENT BETWEEN AN ENTITY
AND LABOR ORGANIZATION THAT, AT A MINIMUM, PROTECTS THE STATE'S PROPRIE-
TARY INTERESTS BY PROHIBITING LABOR ORGANIZATIONS AND MEMBERS FROM
S. 1648--A 3
ENGAGING IN PICKETING, WORK STOPPAGES, BOYCOTTS, AND ANY OTHER ECONOMIC
INTERFERENCE WITH THE ENTITY.
(E) Any applicant which fails to demonstrate that grant funds are to
be used toward programs in the state shall be deemed ineligible to
receive grant funding under this article. Any organization, when apply-
ing for grant funding, shall provide in its grant application materials
documentation demonstrating compliance with this provision.
§ 3. The labor law is amended by adding a new article 8-B to read as
follows:
ARTICLE 8-B
PREVAILING WAGE REQUIREMENT FOR NOT-FOR-PROFIT THEATERS
SECTION 228. DEFINITIONS.
228-A. PREVAILING WAGE REQUIREMENT FOR NOT-FOR-PROFIT THEATERS
AND PAYMENT OF THEIR EMPLOYEES ON PRODUCTIONS FUNDED BY
THE NEW YORK STATE COUNCIL ON THE ARTS OR ARTS AGENCIES
OF LOCALITIES; RECORD KEEPING.
228-B. POWERS OF THE FISCAL OFFICER.
228-C. INVESTIGATION AND HEARING.
228-D. FAILURE TO PROTEST UNDERPAYMENTS.
228-E. STATEMENTS SHOWING AMOUNTS DUE FOR WAGES.
228-F. PROVISIONS IN CONTRACTS PROHIBITING DISCRIMINATION ON
ACCOUNT OF RACE, CREED, COLOR, NATIONAL ORIGIN, AGE,
SEX OR DISABILITY.
228-G. PENALTIES.
228-H. ENFORCEMENT OF ARTICLE.
§ 228. DEFINITIONS. AS USED IN THIS ARTICLE:
1. "ARTS AGENCY" MEANS ANY PUBLIC AGENCY OF NEW YORK STATE OR OF A
LOCALITY OF NEW YORK STATE THAT PROVIDES GRANTS TO PRODUCTIONS AT NOT-
FOR-PROFIT THEATERS.
2. "CONTRACT" MEANS ANY AGREEMENT BETWEEN A PRODUCTION AND AN ARTS
AGENCY TO GRANT FUNDS TO SUCH PRODUCTION.
3. "CONTRACTOR" OR "SUBCONTRACTOR" MEANS A PRODUCTION THAT IS A RECIP-
IENT OF A GRANT FROM AN ARTS AGENCY.
4. "EMPLOYEE" MEANS AN EMPLOYEE OF A NOT-FOR-PROFIT THEATER THAT
RECEIVES A GRANT AWARD FROM AN ARTS AGENCY INCLUDING BUT NOT LIMITED TO
ACTORS, STAGE MANAGERS, PRODUCTION ASSISTANTS, SCENIC ARTISTS, SCENIC
DESIGNERS, COSTUME DESIGNERS, LIGHTING DESIGNERS, SOUND DESIGNERS,
PROJECTION DESIGNERS, GRAPHIC ARTISTS, ART AND COSTUME DEPARTMENT COOR-
DINATORS, USHERS, TICKET TAKERS, LINE DIRECTORS, PRESS AGENTS, COMPANY
MANAGERS, THEATRE MANAGERS, ENGINEERS, MUSICIANS, SINGERS, CHOREOGRA-
PHERS, DANCERS, STAGING STAFF, BALLET SCHOOL FACULTY, DIRECTORS, FIGHT
DIRECTORS, INTIMACY DIRECTORS, DRESSERS, WARDROBERS, COSTUMERS, STITCH-
ERS, TAILORS, DRAPERS, SHOPPERS, LAUNDRY WORKERS, DYERS, COSTUME TECHNI-
CIANS, MILLINERS, CRAFTSPEOPLE, CHILD ACTORS, GUARDIANS, BOX OFFICE
TREASURERS, FIRST ASSISTANTS, AND TICKET SELLERS EMPLOYED ON A
PRODUCTION FUNDED BY AN ARTS AGENCY.
5. "ENTITY" MEANS A PARTNERSHIP, ASSOCIATION, JOINT VENTURE, COMPANY,
SOLE PROPRIETORSHIP, CORPORATION OR ANY OTHER FORM OF DOING BUSINESS.
6. "FISCAL OFFICER" MEANS THE COMPTROLLER OF THE STATE OF NEW YORK OR
OTHER ANALOGOUS OFFICER OF THE GOVERNING BODY OF AN ARTS AGENCY.
7. "GRANT" MEANS ANY CAPITAL AND/OR OPERATIONAL GRANT MADE TO
PRODUCTIONS FUNDED BY AN ARTS AGENCY.
8. "LOCALITY" MEANS THE STATE, OR A TOWN, CITY, VILLAGE OR OTHER CIVIL
DIVISION OR AREA OF THE STATE AS DETERMINED BY THE FISCAL OFFICER. THE
FISCAL OFFICER MAY FIX A DIFFERENT GEOGRAPHIC AREA IN DETERMINING THE
S. 1648--A 4
LOCALITY FOR THE PREVAILING BASIC HOURLY CASH RATE OF PAY AND THE LOCAL-
ITY FOR PREVAILING SUPPLEMENTS.
9. "NOT-FOR-PROFIT THEATER" MEANS A THEATER OPERATING AS A NOT-FOR-
PROFIT ENTITY PURSUANT TO NEW YORK STATE LAWS WITH A SEATING CAPACITY OF
AT LEAST ONE HUNDRED.
10. "PARENT COMPANY" MEANS AN ENTITY THAT DIRECTLY CONTROLS THE
CONTRACTOR OR SUBCONTRACTOR.
11. "PREVAILING PRACTICES IN THE LOCALITY" MEANS THE PRACTICE OF
PROVIDING SUPPLEMENTS BY VIRTUE OF COLLECTIVE BARGAINING AGREEMENTS
BETWEEN BONA FIDE LABOR ORGANIZATIONS THAT REPRESENT EMPLOYEES OF NOT-
FOR-PROFIT THEATERS INCLUDING BUT NOT LIMITED TO ACTORS, STAGE MANAGERS,
PRODUCTION ASSISTANTS, SCENIC ARTISTS, SCENIC DESIGNERS, COSTUME DESIGN-
ERS, LIGHTING DESIGNERS, SOUND DESIGNERS, PROJECTION DESIGNERS, GRAPHIC
ARTISTS, ART AND COSTUME DEPARTMENT COORDINATORS, USHERS, TICKET TAKERS,
LINE DIRECTORS, PRESS AGENTS, COMPANY MANAGERS, THEATRE MANAGERS, ENGI-
NEERS, MUSICIANS, SINGERS, CHOREOGRAPHERS, DANCERS, STAGING STAFF,
BALLET SCHOOL FACULTY, DIRECTORS, FIGHT DIRECTORS, INTIMACY DIRECTORS,
DRESSERS, WARDROBERS, COSTUMERS, STITCHERS, TAILORS, DRAPERS, SHOPPERS,
LAUNDRY WORKERS, DYERS, COSTUME TECHNICIANS, MILLINERS, CRAFTSPEOPLE,
CHILD ACTORS, GUARDIANS, BOX OFFICE TREASURERS, FIRST ASSISTANTS, AND
TICKET SELLERS PROVIDED THAT SAID EMPLOYERS EMPLOY AT LEAST THIRTY PER
CENTUM OF SUCH EMPLOYEES IN THE LOCALITY, AS DETERMINED BY THE FISCAL
OFFICER IN ACCORDANCE WITH THE PROVISIONS HEREIN. WITH RESPECT TO EACH
SUPPLEMENT DETERMINED TO BE ONE OF THE PREVAILING PRACTICES IN THE
LOCALITY, THE AMOUNT OF SUCH SUPPLEMENT SHALL BE DETERMINED IN THE SAME
MANNER AND AT THE SAME TIME AS THE PREVAILING RATE OF WAGE IS DETERMINED
PURSUANT TO THIS SECTION.
12. "PREVAILING WAGE" MEANS THE RATE OF COMPENSATION PAID BY A
PRODUCTION, BY VIRTUE OF COLLECTIVE BARGAINING AGREEMENTS BETWEEN BONA
FIDE LABOR ORGANIZATIONS THAT REPRESENT EMPLOYEES OF NOT-FOR-PROFIT
THEATERS INCLUDING BUT NOT LIMITED TO ACTORS, STAGE MANAGERS, PRODUCTION
ASSISTANTS, SCENIC ARTISTS, SCENIC DESIGNERS, COSTUME DESIGNERS, LIGHT-
ING DESIGNERS, SOUND DESIGNERS, PROJECTION DESIGNERS, GRAPHIC ARTISTS,
ART AND COSTUME DEPARTMENT COORDINATORS, USHERS, TICKET TAKERS, LINE
DIRECTORS, PRESS AGENTS, COMPANY MANAGERS, THEATRE MANAGERS, AND EMPLOY-
ERS OF SUCH EMPLOYEES PERFORMING WORK ON A PRODUCTION FUNDED BY AN ARTS
AGENCY WHERE SUCH LABOR ORGANIZATION REPRESENTS AT LEAST THIRTY PER
CENTUM OF EMPLOYEES IN THE LOCALITY WHERE SUCH WORK IS BEING PERFORMED.
THE PREVAILING RATE OF WAGE SHALL BE ANNUALLY DETERMINED IN ACCORDANCE
HEREWITH BY THE FISCAL OFFICER NO LATER THAN THIRTY DAYS PRIOR TO JULY
FIRST OF EACH YEAR, AND THE PREVAILING RATE OF WAGE FOR THE PERIOD
COMMENCING JULY FIRST OF SUCH YEAR THROUGH JUNE THIRTIETH, INCLUSIVE, OF
THE FOLLOWING YEAR SHALL BE THE RATE OF WAGE SET FORTH IN SUCH COLLEC-
TIVE BARGAINING AGREEMENTS FOR THE PERIOD COMMENCING JULY FIRST THROUGH
JUNE THIRTIETH, INCLUDING THOSE INCREASES FOR SUCH PERIOD WHICH ARE
DIRECTLY ASCERTAINABLE FROM SUCH COLLECTIVE BARGAINING AGREEMENTS BY THE
FISCAL OFFICER IN SUCH OFFICER'S ANNUAL DETERMINATION. IN THE EVENT
THAT IT IS DETERMINED AFTER A CONTEST, AS PROVIDED IN SECTION TWO
HUNDRED TWENTY-EIGHT-C OF THIS ARTICLE, THAT LESS THAN THIRTY PERCENT OF
THE EMPLOYEES IN THE LOCALITY WHERE THE WORK IS BEING PERFORMED RECEIVE
A COLLECTIVELY BARGAINED RATE OF WAGE, THEN THE AVERAGE WAGE PAID TO
SUCH EMPLOYEES IN THE LOCALITY FOR THE TWELVE-MONTH PERIOD PRECEDING THE
FISCAL OFFICER'S ANNUAL DETERMINATION SHALL BE THE PREVAILING RATE OF
WAGE. EMPLOYEES FOR WHOM A PREVAILING RATE OF WAGE IS TO BE DETERMINED
SHALL NOT BE CONSIDERED IN DETERMINING SUCH PREVAILING WAGE.
S. 1648--A 5
13. "PRODUCTION" MEANS A CORPORATION, PARTNERSHIP, LIMITED PARTNER-
SHIP, OR OTHER ENTITY OR INDIVIDUAL THAT PROVIDES COMPENSATION TO AN
EMPLOYEE.
14. "SUBSTANTIALLY-OWNED AFFILIATED ENTITY" MEANS THE PARENT COMPANY
OF THE CONTRACTOR OR SUBCONTRACTOR, ANY SUBSIDIARY OF THE CONTRACTOR OR
SUBCONTRACTOR, OR ANY ENTITY IN WHICH THE PARENT OF THE CONTRACTOR OR
SUBCONTRACTOR OWNS MORE THAN FIFTY PERCENT OF THE VOTING STOCK, OR AN
ENTITY IN WHICH ONE OR MORE OF THE TOP FIVE SHAREHOLDERS OF THE CONTRAC-
TOR OR SUBCONTRACTOR INDIVIDUALLY OR COLLECTIVELY ALSO OWNS A CONTROL-
LING SHARE OF THE VOTING STOCK, OR AN ENTITY WHICH EXHIBITS ANY OTHER
INDICIA OF CONTROL OVER THE CONTRACTOR OR SUBCONTRACTOR OR OVER WHICH
THE CONTRACTOR OR SUBCONTRACTOR EXHIBITS CONTROL, REGARDLESS OF WHETHER
OR NOT THE CONTROLLING PARTY OR PARTIES HAVE ANY IDENTIFIABLE OR DOCU-
MENTED OWNERSHIP INTEREST. SUCH INDICIA SHALL INCLUDE POWER OR RESPONSI-
BILITY OVER EMPLOYMENT DECISIONS, ACCESS TO AND/OR USE OF THE RELEVANT
ENTITY'S ASSETS OR EQUIPMENT, POWER OR RESPONSIBILITY OVER CONTRACTS OF
THE ENTITY, RESPONSIBILITY FOR MAINTENANCE OR SUBMISSION OF CERTIFIED
PAYROLL RECORDS, AND INFLUENCE OVER THE BUSINESS DECISIONS OF THE RELE-
VANT ENTITY.
15. "SUBSIDIARY" MEANS AN ENTITY THAT IS CONTROLLED DIRECTLY, OR INDI-
RECTLY THROUGH ONE OR MORE INTERMEDIARIES, BY A CONTRACTOR OR SUBCON-
TRACTOR OR THE CONTRACTOR'S PARENT COMPANY.
16. "SUCCESSOR" MEANS AN ENTITY ENGAGED IN WORK SUBSTANTIALLY SIMILAR
TO THAT OF THE PREDECESSOR, WHERE THERE IS SUBSTANTIAL CONTINUITY OF
OPERATION WITH THAT OF THE PREDECESSOR.
17. "SUPPLEMENTS" MEANS ALL REMUNERATION FOR EMPLOYMENT PAID IN ANY
MEDIUM OTHER THAN CASH, OR REIMBURSEMENT FOR EXPENSES, OR ANY PAYMENTS
WHICH ARE NOT "WAGES" WITHIN THE MEANING OF THE LAW, INCLUDING, BUT NOT
LIMITED TO, HEALTH, WELFARE, NON-OCCUPATIONAL DISABILITY, RETIREMENT AND
VACATION BENEFITS, HOLIDAY PAY, LIFE INSURANCE, AND APPRENTICESHIP
TRAINING.
18. "WAGE" INCLUDES: (A) BASIC HOURLY CASH RATE OF PAY; AND (B) FRINGE
BENEFITS INCLUDING MEDICAL OR HOSPITAL CARE, PENSIONS ON RETIREMENT OR
DEATH, COMPENSATION FOR INJURIES OR ILLNESS RESULTING FROM OCCUPATIONAL
ACTIVITY, OR INSURANCE TO PROVIDE ANY OF THE FOREGOING, UNEMPLOYMENT
BENEFITS, LIFE INSURANCE, DISABILITY AND SICKNESS INSURANCE, ACCIDENT
INSURANCE, VACATION AND HOLIDAY PAY, COSTS OF APPRENTICESHIP OR OTHER
SIMILAR PROGRAMS AND OTHER BONA FIDE FRINGE BENEFITS NOT OTHERWISE
REQUIRED BY FEDERAL, STATE OR LOCAL LAW TO BE PROVIDED BY THE CONTRACTOR
OR SUBCONTRACTOR.
§ 228-A. PREVAILING WAGE REQUIREMENT FOR NOT-FOR-PROFIT THEATERS AND
PAYMENT OF THEIR EMPLOYEES ON PRODUCTIONS FUNDED BY THE NEW YORK STATE
COUNCIL ON THE ARTS OR ARTS AGENCIES OF LOCALITIES; RECORD KEEPING. 1.
IN ALL CASES WHERE WORK IS BEING PERFORMED PURSUANT TO A COLLECTIVE
BARGAINING AGREEMENT THE CONTRACTOR OR SUBCONTRACTOR SHALL KEEP ORIGINAL
PAYROLLS OR TRANSCRIPTS THEREOF, SUBSCRIBED AND CONFIRMED BY THE
CONTRACTOR OR SUBCONTRACTOR AS TRUE, UNDER PENALTY OF PERJURY, SHOWING
THE HOURS AND DAYS WORKED BY EACH EMPLOYEE, THE CRAFT, TRADE OR OCCUPA-
TION AT WHICH THE EMPLOYEE WAS EMPLOYED, AND THE WAGES PAID.
2. WHERE THE WAGES PAID INCLUDE SUMS WHICH ARE NOT PAID DIRECTLY TO
THE EMPLOYEES WEEKLY AND WHICH ARE EXPENDED FOR SUPPLEMENTS, THE RECORDS
REQUIRED TO BE MAINTAINED SHALL INCLUDE A RECORD OF SUCH HOURLY PAYMENT
ON BEHALF OF SUCH EMPLOYEES, THE SUPPLEMENT FOR WHICH SUCH PAYMENT HAS
BEEN MADE, AND THE NAME AND ADDRESS OF THE PERSON TO WHOM SUCH PAYMENT
HAS BEEN MADE. IN ALL SUCH CASES, THE CONTRACTOR SHALL KEEP A TRUE AND
INSCRIBED COPY OF THE AGREEMENT UNDER WHICH SUCH PAYMENTS ARE MADE, A
S. 1648--A 6
RECORD OF ALL NET PAYMENTS MADE THEREUNDER, AND A LIST OF ALL PERSONS
FOR WHOM SUCH PAYMENTS ARE MADE.
3. THE RECORDS REQUIRED TO BE MAINTAINED SHALL BE KEPT ON THE SITE OF
THE WORK DURING ALL OF THE TIME THAT WORK UNDER THE CONTRACT IS BEING
PERFORMED.
4. ALL RECORDS REQUIRED TO BE MAINTAINED SHALL BE PRESERVED FOR A
PERIOD OF THREE YEARS AFTER THE COMPLETION OF WORK.
§ 228-B. POWERS OF THE FISCAL OFFICER. 1. IN ADDITION TO THE POWERS
ENUMERATED ELSEWHERE IN THIS ARTICLE, THE FISCAL OFFICER SHALL HAVE THE
POWER TO:
(A) CAUSE AN INVESTIGATION TO BE MADE TO DETERMINE THE WAGES PREVAIL-
ING IN ANY LOCALITY FOR WORK PERFORMED BY EMPLOYEES COVERED BY THIS
ARTICLE AND IN MAKING SUCH INVESTIGATION, THE FISCAL OFFICER MAY UTILIZE
WAGE AND FRINGE BENEFIT DATA FROM VARIOUS SOURCES INCLUDING, BUT NOT
LIMITED TO, DATA AND DETERMINATIONS OF FEDERAL, STATE OR OTHER GOVERN-
MENTAL AGENCIES;
(B) INSTITUTE AND CONDUCT INSPECTIONS AT THE SITE OF THE WORK OR ELSE-
WHERE IN AID OF THE EFFECTIVE ADMINISTRATION AND ENFORCEMENT OF THE
PROVISIONS OF THIS ARTICLE;
(C) EXAMINE THE BOOKS, DOCUMENTS AND RECORDS PERTAINING TO THE WAGES
PAID TO, AND THE HOURS OF WORK PERFORMED BY, SUCH EMPLOYEES;
(D) HOLD THE HEARINGS PROVIDED FOR IN THIS ARTICLE, AND IN CONNECTION
THEREWITH, TO ISSUE SUBPOENAS, ADMINISTER OATHS AND EXAMINE WITNESSES.
THE ENFORCEMENT OF A SUBPOENA ISSUED UNDER THIS SECTION SHALL BE REGU-
LATED BY THE CIVIL PRACTICE LAW AND RULES;
(E) MAKE A CLASSIFICATION BY CRAFT, TRADE OR OTHER GENERALLY RECOG-
NIZED OCCUPATIONAL CATEGORY OF THE EMPLOYEES INVOLVED AND TO DETERMINE
WHETHER SUCH WORK HAS BEEN PERFORMED BY THE EMPLOYEES IN SUCH CLASSI-
FICATION;
(F) REQUIRE A CONTRACTOR OR SUBCONTRACTOR TO FILE WITH THE FISCAL
OFFICER A RECORD OF THE WAGES ACTUALLY PAID BY SUCH CONTRACTOR OR
SUBCONTRACTOR TO THE EMPLOYEES AND OF THEIR HOURS OF WORK;
(G) DELEGATE ANY OF THE FOREGOING POWERS TO THE FISCAL OFFICER'S DEPU-
TY OR OTHER AUTHORIZED REPRESENTATIVE;
(H) PROVIDE SUCH REASONABLE LIMITATIONS FROM ANY OR ALL PROVISIONS OF
THIS ARTICLE AS THE FISCAL OFFICER MAY FIND NECESSARY AND PROPER IN THE
PUBLIC INTEREST OR TO AVOID SERIOUS IMPAIRMENT OF THE CONDUCT OF GOVERN-
MENT BUSINESS; AND
(I) PROPOSE, AND AFTER PUBLIC HEARING HELD BEFORE THE FISCAL OFFICER
OR THE FISCAL OFFICER'S DESIGNEE, PROMULGATE SUCH RULES AS THE FISCAL
OFFICER SHALL CONSIDER NECESSARY FOR THE PROPER EXECUTION OF THE DUTIES,
RESPONSIBILITIES AND POWERS CONFERRED UPON THE FISCAL OFFICER BY THE
PROVISIONS OF THIS ARTICLE. SUCH RULES MAY ALLOW SUCH REASONABLE VARI-
ATIONS, TOLERANCES AND EXEMPTIONS TO AND FROM ANY OR ALL PROVISIONS OF
THIS ARTICLE AS THE FISCAL OFFICER MAY FIND NECESSARY AND PROPER IN THE
PUBLIC INTEREST, OR TO AVOID SERIOUS IMPAIRMENT OF THE CONDUCT OF
GOVERNMENT BUSINESS.
2. FOR ALL WORK FOR WHICH THE COMMISSIONER IS THE FISCAL OFFICER, THE
COMMISSIONER SHALL ADDITIONALLY HAVE ALL THE POWERS GRANTED TO THE
COMMISSIONER ELSEWHERE IN THIS CHAPTER.
§ 228-C. INVESTIGATION AND HEARING. 1. WHENEVER THE FISCAL OFFICER HAS
REASON TO BELIEVE THAT AN EMPLOYEE HAS BEEN PAID LESS THAN THE WAGES
STIPULATED IN THE CONTRACT, OR IF SUCH CONTRACT HAS NO WAGE SCHEDULE
ATTACHED THERETO AND THE FISCAL OFFICER HAS REASON TO BELIEVE THAT AN
EMPLOYEE HAS BEEN PAID LESS THAN THE WAGES PREVAILING FOR THE EMPLOYEE'S
CRAFT, TRADE OR OCCUPATION, THE FISCAL OFFICER MAY, AND UPON RECEIPT OF
S. 1648--A 7
A WRITTEN COMPLAINT FROM AN EMPLOYEE EMPLOYED THEREON, CONDUCT A SPECIAL
INVESTIGATION TO DETERMINE THE FACTS RELATING THERETO.
2. (A) AT THE START OF SUCH INVESTIGATION THE FISCAL OFFICER MAY NOTI-
FY THE FINANCIAL OFFICER OF THE ARTS AGENCY INTERESTED WHO SHALL, AT THE
DIRECTION OF THE FISCAL OFFICER, FORTHWITH WITHHOLD FROM ANY PAYMENT DUE
TO THE CONTRACTOR OR SUBCONTRACTOR EXECUTING THE CONTRACT SUFFICIENT
MONEY TO SAFEGUARD THE RIGHTS OF THE EMPLOYEES AND TO COVER THE CIVIL
PENALTY THAT MAY BE ASSESSED AS PROVIDED HEREIN, OR, IF THERE ARE INSUF-
FICIENT MONEYS STILL DUE TO BE DISBURSED TO THE CONTRACTOR OR SUBCON-
TRACTOR TO SAFEGUARD THE RIGHTS OF THE EMPLOYEES AND TO COVER THE CIVIL
PENALTY THAT MAY BE ASSESSED AS PROVIDED HEREIN, THE FINANCIAL OFFICER
OF ANOTHER ARTS AGENCY WHICH HAS ENTERED OR SUBSEQUENTLY ENTERS INTO A
CONTRACT WITH THE CONTRACTOR OR SUBCONTRACTOR, SHALL WITHHOLD FROM ANY
SUCH PAYMENT TO THE CONTRACTOR OR SUBCONTRACTOR EXECUTING ANY WORK,
SUFFICIENT MONEYS TO SAFEGUARD THE RIGHTS OF THE EMPLOYEES AND TO COVER
THE CIVIL PENALTY THAT MAY BE ASSESSED AS PROVIDED HEREIN.
(B) IF THERE ARE STILL INSUFFICIENT MONEYS STILL DUE TO BE DISBURSED
TO THE CONTRACTOR OR SUBCONTRACTOR TO SAFEGUARD THE RIGHTS OF THE
EMPLOYEES AND TO COVER THE CIVIL PENALTY THAT MAY BE ASSESSED AS
PROVIDED HEREIN, THE FINANCIAL OFFICER SHALL IMMEDIATELY SO NOTIFY THE
FISCAL OFFICER, WHO MAY ISSUE A NOTICE OF WITHHOLDING TO ANY OF THE
FOLLOWING: ANY SUBSTANTIALLY-OWNED AFFILIATED ENTITY OR SUCCESSOR OR
SUBSIDIARY OF THE CONTRACTOR OR SUBCONTRACTOR, AN OFFICER OF THE
CONTRACTOR OR SUBCONTRACTOR WHO KNOWINGLY PARTICIPATED IN THE VIOLATION
OF THIS ARTICLE, ANY OF THE PARTNERS, IF THE CONTRACTOR OR SUBCONTRACTOR
IS A PARTNERSHIP, OR ANY OF THE FIVE LARGEST SHAREHOLDERS OF THE
CONTRACTOR OR SUBCONTRACTOR, AS DETERMINED BY THE FISCAL OFFICER.
(C) THE NOTICE OF WITHHOLDING SHALL PROVIDE THAT THE FISCAL OFFICER
INTENDS TO INSTRUCT THE FINANCIAL OFFICER, NOT LESS THAN TEN DAYS
FOLLOWING OF THE NOTICE BY MAIL, TO WITHHOLD SUFFICIENT MONEYS TO SAFE-
GUARD THE RIGHTS OF THE EMPLOYEES AND TO COVER THE CIVIL PENALTY THAT
MAY BE ASSESSED AS PROVIDED HEREIN, FROM ANY PAYMENT DUE THE NOTIFIED
PARTY UNDER ANY CONTRACT PENDING FINAL DETERMINATION. THE NOTICE OF
WITHHOLDING SHALL PROVIDE THAT WITHIN THIRTY DAYS FOLLOWING THE DATE OF
THE NOTICE OF WITHHOLDING THE NOTIFIED PARTY MAY CONTEST THE WITHHOLDING
ON THE BASIS THAT THE NOTIFIED PARTY IS NOT A PARTNER OR ONE OF THE FIVE
LARGEST SHAREHOLDERS OF THE SUBCONTRACTOR OR CONTRACTOR, AN OFFICER OF
THE CONTRACTOR OR SUBCONTRACTOR WHO KNOWINGLY PARTICIPATED IN THE
VIOLATION OF THIS ARTICLE, OR A SUBSTANTIALLY-OWNED AFFILIATED ENTITY OR
SUCCESSOR. IF THE NOTIFIED PARTY FAILS TO CONTEST THE NOTICE OF WITH-
HOLDING, OR IF THE FISCAL OFFICER, AFTER REVIEWING THE INFORMATION
PROVIDED BY THE NOTIFIED PARTY IN SUCH CONTEST, DETERMINES THAT THE
NOTIFIED PARTY IS A PARTNER OR ONE OF THE FIVE LARGEST SHAREHOLDERS, A
SUBSTANTIALLY-OWNED AFFILIATED ENTITY, AN OFFICER OF THE CONTRACTOR OR
SUBCONTRACTOR WHO KNOWINGLY PARTICIPATED IN THE VIOLATION OF THIS ARTI-
CLE, OR A SUCCESSOR, THE FISCAL OFFICER MAY INSTRUCT THE FINANCIAL OFFI-
CER TO IMMEDIATELY WITHHOLD SUFFICIENT MONEYS TO SAFEGUARD THE RIGHTS OF
THE EMPLOYEES AND TO COVER THE CIVIL PENALTY THAT MAY BE ASSESSED AS
PROVIDED HEREIN FROM FUNDS STILL TO BE DISBURSED TO THE NOTIFIED PARTY
UNDER ANY CONTRACT PENDING THE FINAL DETERMINATION.
(D) THE FINANCIAL OFFICER SHALL IMMEDIATELY IMPLEMENT THE NOTICE OF
WITHHOLDING AND CONFIRM IN WRITING TO THE FISCAL OFFICER THE AMOUNT OF
MONEY WITHHELD.
(E) IF THE NOTIFIED PARTY CONTESTS THE WITHHOLDING AFTER A WITHHOLDING
HAS BEEN EFFECTED, AND IF THE FISCAL OFFICER DETERMINES THAT THE NOTI-
FIED PARTY IS NOT A PARTNER OR ONE OF THE FIVE LARGEST SHAREHOLDERS, A
S. 1648--A 8
SUBSTANTIALLY-OWNED AFFILIATED ENTITY OR SUCCESSOR, OR AN OFFICER OF THE
CONTRACTOR OR SUBCONTRACTOR WHO KNOWINGLY PARTICIPATED IN THE VIOLATION
OF THIS ARTICLE, THE FISCAL OFFICER SHALL IMMEDIATELY NOTIFY THE FINAN-
CIAL OFFICER TO RELEASE ALL FUNDS BEING WITHHELD FROM THE NOTIFIED
PARTY.
(F) THE MONEY SHALL BE HELD IN TRUST PENDING COMPLETION OF THE INVES-
TIGATION.
3. IF, DESPITE THE REQUIREMENTS OF LAW, THE CONTRACT FOR THE WORK HAS
BEEN AWARDED WITHOUT THE ANNEXATION THERETO OF THE SCHEDULE OF WAGES
PROVIDED FOR IN THIS ARTICLE, THE FISCAL OFFICER SHALL DETERMINE IN THE
PROCEEDING BEFORE SUCH FISCAL OFFICER THE WAGES PREVAILING AT THE TIME
THE WORK WAS PERFORMED FOR THE CRAFTS, TRADES OR OCCUPATIONS OF THE
EMPLOYEES INVOLVED.
4. IN AN INVESTIGATION CONDUCTED UNDER THE PROVISIONS OF THIS SECTION,
THE INQUIRY OF THE FISCAL OFFICER SHALL NOT EXTEND TO WORK PERFORMED
MORE THAN TWO YEARS PRIOR TO:
(A) THE FILING OF THE COMPLAINT; OR
(B) THE COMMENCEMENT OF THE INVESTIGATION UPON THE FISCAL OFFICER'S
OWN VOLITION, WHICHEVER IS EARLIER IN POINT OF TIME.
5. (A) THE INVESTIGATION AND HEARING SHALL BE EXPEDITIOUSLY CONDUCTED
AND UPON THE COMPLETION THEREOF THE FISCAL OFFICER SHALL DETERMINE THE
ISSUES RAISED AND SHALL MAKE AND FILE AN ORDER IN THE FISCAL OFFICER'S
OFFICE STATING SUCH DETERMINATION AND FORTHWITH SERVE PERSONALLY OR BY
MAIL A COPY OF SUCH ORDER AND DETERMINATION TOGETHER WITH A NOTICE OF
FILING UPON ALL PARTIES TO THE PROCEEDING AND UPON THE FINANCIAL OFFICER
OF THE ARTS AGENCY INVOLVED.
(B) IN ADDITION TO DIRECTING PAYMENT OF WAGES FOUND TO BE DUE, SUCH
ORDER OF THE FISCAL OFFICER MAY DIRECT PAYMENT OF A FURTHER SUM AS A
CIVIL PENALTY IN AN AMOUNT NOT EXCEEDING TWENTY-FIVE PERCENT OF THE
TOTAL AMOUNT FOUND TO BE DUE. IN ASSESSING THE AMOUNT OF THE PENALTY,
DUE CONSIDERATION SHALL BE GIVEN TO THE SIZE OF THE EMPLOYER'S BUSINESS,
THE GOOD FAITH OF THE EMPLOYER, THE GRAVITY OF THE VIOLATION, THE HISTO-
RY OF PREVIOUS VIOLATIONS OF THE EMPLOYER, SUCCESSOR OR SUBSTANTIALLY-
OWNED AFFILIATED ENTITY OR ANY SUCCESSOR OF THE CONTRACTOR OR SUBCON-
TRACTOR, ANY OFFICER OF THE CONTRACTOR OR SUBCONTRACTOR WHO KNOWINGLY
PARTICIPATED IN THE VIOLATION OF THIS ARTICLE, AND ANY OF THE PARTNERS
IF THE CONTRACTOR OR SUBCONTRACTOR IS A PARTNERSHIP OR ANY OF THE FIVE
LARGEST SHAREHOLDERS OF THE CONTRACTOR OR SUBCONTRACTOR, AS DETERMINED
BY THE FISCAL OFFICER, OF SUCH UNDERPAYMENT OF WAGES OR SUPPLEMENTS, AND
ANY OFFICER OF THE CONTRACTOR OR SUBCONTRACTOR WHO KNOWINGLY PARTIC-
IPATED IN THE VIOLATION OF THIS ARTICLE, AND THE FAILURE TO COMPLY WITH
RECORD KEEPING OR OTHER NON-WAGE REQUIREMENTS. WHERE THE FISCAL OFFICER
IS THE COMMISSIONER, THE PENALTY SHALL BE PAID TO THE COMMISSIONER FOR
DEPOSIT IN THE STATE TREASURY. WHERE THE FISCAL OFFICER IS A CITY COMP-
TROLLER OR OTHER ANALOGOUS OFFICER, THE PENALTY SHALL BE PAID TO SAID
OFFICER FOR DEPOSIT IN THE CITY TREASURY.
(C) IF THE ORDER DIRECTS THE PAYMENT TO SPECIFIED EMPLOYEES OF WAGES
FOUND TO BE DUE AND UNPAID, INCLUDING INTEREST AT A RATE NOT LESS THAN
SIX PER CENTUM PER YEAR AND NOT MORE THAN THE RATE OF INTEREST THEN IN
EFFECT AS PRESCRIBED BY THE SUPERINTENDENT OF FINANCIAL SERVICES PURSU-
ANT TO SECTION FOURTEEN-A OF THE BANKING LAW PER ANNUM FROM THE TIME
SUCH WAGES SHOULD HAVE BEEN PAID, THE FINANCIAL OFFICER OF SUCH ARTS
AGENCY SHALL, UPON THE SERVICE TO THE FINANCIAL OFFICER OF SUCH ORDER,
PAY TO SUCH EMPLOYEES FROM THE TRUST MONEY WITHHELD THE AMOUNTS SPECI-
FIED IN SUCH ORDER AND SHALL PAY THE CIVIL PENALTY AS PROVIDED HEREIN,
PROVIDED NO REVIEW PROCEEDING PURSUANT TO THE PROVISIONS OF ARTICLE
S. 1648--A 9
SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES IS COMMENCED WITHIN
THIRTY DAYS OF THE DATE SAID ORDER WAS FILED IN THE OFFICE OF THE FISCAL
OFFICER. IF SUCH REVIEW IS TIMELY COMMENCED, THE MONEY WITHHELD SHALL
REMAIN IN TRUST PENDING FINAL DISPOSITION OF THE REVIEW PROCEEDING. IN
DETERMINING THE RATE OF INTEREST TO BE IMPOSED THE FISCAL OFFICER SHALL
CONSIDER THE SIZE OF THE EMPLOYER'S BUSINESS, THE GOOD FAITH OF THE
EMPLOYER, THE GRAVITY OF THE VIOLATION, THE HISTORY OF PREVIOUS
VIOLATIONS OF THE EMPLOYER, SUCCESSOR OR SUBSTANTIALLY-OWNED AFFILIATED
ENTITY OR ANY SUCCESSOR OF THE CONTRACTOR OR SUBCONTRACTOR, ANY OFFICER
OF THE CONTRACTOR OR SUBCONTRACTOR WHO KNOWINGLY PARTICIPATED IN THE
VIOLATION OF THIS ARTICLE, AND ANY OF THE PARTNERS IF THE CONTRACTOR OR
SUBCONTRACTOR IS A PARTNERSHIP OR ANY OF THE FIVE LARGEST SHAREHOLDERS
OF THE CONTRACTOR OR SUBCONTRACTOR, AS DETERMINED BY THE FISCAL OFFICER,
AND THE FAILURE TO COMPLY WITH RECORD KEEPING OR OTHER NON-WAGE REQUIRE-
MENTS.
6. WHEN A FINAL DETERMINATION HAS BEEN MADE AND SUCH DETERMINATION IS
IN FAVOR OF AN EMPLOYEE, SUCH EMPLOYEE MAY, IN ADDITION TO ANY OTHER
REMEDY PROVIDED BY THIS ARTICLE, INSTITUTE AN ACTION IN ANY COURT OF
APPROPRIATE JURISDICTION AGAINST THE PERSON OR CORPORATION FOUND TO HAVE
VIOLATED THIS ARTICLE, ANY SUBSTANTIALLY-OWNED AFFILIATED ENTITY OR ANY
SUCCESSOR OF THE CONTRACTOR OR SUBCONTRACTOR, ANY OFFICER OF THE
CONTRACTOR OR SUBCONTRACTOR WHO KNOWINGLY PARTICIPATED IN THE VIOLATION
OF THIS ARTICLE, AND ANY OF THE PARTNERS IF THE CONTRACTOR OR SUBCON-
TRACTOR IS A PARTNERSHIP OR ANY OF THE FIVE LARGEST SHAREHOLDERS OF THE
CONTRACTOR OR SUBCONTRACTOR, AS DETERMINED BY THE FISCAL OFFICER, FOR
THE RECOVERY OF THE DIFFERENCE BETWEEN THE SUM, IF ANY, ACTUALLY PAID TO
THE EMPLOYEE BY THE AFORESAID FINANCIAL OFFICER PURSUANT TO SAID ORDER
AND THE AMOUNT FOUND TO BE DUE THE EMPLOYEE AS DETERMINED BY SAID ORDER.
SUCH ACTION MUST BE COMMENCED WITHIN THREE YEARS FROM THE DATE OF THE
FILING OF SAID ORDER, OR IF THE SAID ORDER IS REVIEWED IN A PROCEEDING
PURSUANT TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES,
WITHIN THREE YEARS AFTER THE TERMINATION OF SUCH REVIEW PROCEEDING.
PROVIDED THAT NO PROCEEDING FOR JUDICIAL REVIEW AS PROVIDED IN THIS
SECTION SHALL THEN BE PENDING AND THE TIME FOR INITIATION OF SUCH
PROCEEDING SHALL HAVE EXPIRED, THE FISCAL OFFICER MAY FILE WITH THE
COUNTY CLERK OF THE COUNTY WHERE THE EMPLOYER RESIDES OR HAS A PLACE OF
BUSINESS THE ORDER OF THE FISCAL OFFICER CONTAINING THE AMOUNT FOUND TO
BE DUE. THE FILING OF SUCH ORDER SHALL HAVE THE FULL FORCE AND EFFECT OF
A JUDGMENT DULY DOCKETED IN THE OFFICE OF SUCH CLERK. THE ORDER MAY BE
ENFORCED BY AND IN THE NAME OF THE FISCAL OFFICER IN THE SAME MANNER,
AND WITH LIKE EFFECT, AS THAT PRESCRIBED BY THE CIVIL PRACTICE LAW AND
RULES FOR THE ENFORCEMENT OF A MONEY JUDGMENT.
7. WHEN, PURSUANT TO THE PROVISIONS OF THIS SECTION, TWO FINAL ORDERS
HAVE BEEN ENTERED AGAINST A CONTRACTOR, SUBCONTRACTOR, SUCCESSOR, OR ANY
SUBSTANTIALLY-OWNED AFFILIATED ENTITY OF THE CONTRACTOR OR SUBCONTRAC-
TOR, ANY OF THE PARTNERS IF THE CONTRACTOR OR SUBCONTRACTOR IS A PART-
NERSHIP, ANY OF THE FIVE LARGEST SHAREHOLDERS OF THE CONTRACTOR OR
SUBCONTRACTOR, ANY OFFICER OF THE CONTRACTOR OR SUBCONTRACTOR WHO KNOW-
INGLY PARTICIPATED IN THE VIOLATION OF THIS ARTICLE WITHIN ANY CONSEC-
UTIVE SIX-YEAR PERIOD DETERMINING THAT SUCH CONTRACTOR OR SUBCONTRACTOR
AND/OR ITS SUCCESSOR, SUBSTANTIALLY-OWNED AFFILIATED ENTITY OF THE
CONTRACTOR OR SUBCONTRACTOR, ANY OF THE PARTNERS OR ANY OF THE FIVE
LARGEST SHAREHOLDERS OF THE CONTRACTOR OR SUBCONTRACTOR, ANY OFFICER OF
THE CONTRACTOR OR SUBCONTRACTOR WHO KNOWINGLY PARTICIPATED IN THE
VIOLATION OF THIS ARTICLE HAS WILLFULLY FAILED TO PAY THE PREVAILING
WAGES IN ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE, WHETHER SUCH
S. 1648--A 10
FAILURES WERE CONCURRENT OR CONSECUTIVE AND WHETHER OR NOT SUCH FINAL
DETERMINATIONS CONCERNING SEPARATE PUBLIC CONTRACTS ARE RENDERED SIMUL-
TANEOUSLY, SUCH CONTRACTOR, SUBCONTRACTOR, SUCCESSOR, AND IF THE
CONTRACTOR, SUBCONTRACTOR, SUCCESSOR, OR ANY SUBSTANTIALLY-OWNED AFFIL-
IATED ENTITY OF THE CONTRACTOR OR SUBCONTRACTOR, ANY OF THE PARTNERS IF
THE CONTRACTOR OR SUBCONTRACTOR IS A PARTNERSHIP, OR ANY OF THE FIVE
LARGEST SHAREHOLDERS OF THE CONTRACTOR OR SUBCONTRACTOR, ANY OFFICER OF
THE CONTRACTOR OR SUBCONTRACTOR WHO KNOWINGLY PARTICIPATED IN THE
VIOLATION OF THIS ARTICLE, OR ANY SUCCESSOR IS A CORPORATION, ANY OFFI-
CER OF SUCH CORPORATION WHO KNOWINGLY PARTICIPATED IN SUCH FAILURE,
SHALL BE INELIGIBLE TO SUBMIT A GRANT APPLICATION OR BE AWARDED A GRANT
BY AN ARTS AGENCY COVERED BY THIS ARTICLE FOR A PERIOD OF FIVE YEARS
FROM THE DATE OF THE SECOND ORDER, PROVIDED, HOWEVER, THAT WHERE ANY
SUCH FINAL ORDER INVOLVES THE FALSIFICATION OF PAYROLL RECORDS OR THE
KICKBACK OF WAGES, THE CONTRACTOR, SUBCONTRACTOR, SUCCESSOR, SUBSTAN-
TIALLY-OWNED AFFILIATED ENTITY OF THE CONTRACTOR OR SUBCONTRACTOR, ANY
PARTNER IF THE CONTRACTOR OR SUBCONTRACTOR IS A PARTNERSHIP OR ANY OF
THE FIVE LARGEST SHAREHOLDERS OF THE CONTRACTOR OR SUBCONTRACTOR, ANY
OFFICER OF THE CONTRACTOR OR SUBCONTRACTOR WHO KNOWINGLY PARTICIPATED IN
THE VIOLATION OF THIS ARTICLE SHALL BE INELIGIBLE TO SUBMIT A GRANT
APPLICATION OR BE AWARDED A GRANT, CONTRACT OR SUBCONTRACT WITH THE
STATE, OR ANY MUNICIPAL CORPORATION OR PUBLIC BODY FOR A PERIOD OF FIVE
YEARS FROM THE DATE OF THE FIRST FINAL ORDER. NOTHING IN THIS SUBDIVI-
SION SHALL BE CONSTRUED AS AFFECTING ANY PROVISION OF ANY OTHER LAW OR
REGULATION RELATING TO THE AWARDING OF PUBLIC CONTRACTS OR GRANTS.
8. (A) WHEN A FINAL DETERMINATION HAS BEEN MADE IN FAVOR OF A
COMPLAINANT AND THE CONTRACTOR OR SUBCONTRACTOR FOUND VIOLATING THIS
ARTICLE HAS FAILED TO MAKE PAYMENT AS REQUIRED BY THE ORDER OF THE
FISCAL OFFICER, AND PROVIDED THAT NO RELEVANT PROCEEDING FOR JUDICIAL
REVIEW SHALL THEN BE PENDING AND THE TIME FOR INITIATION OF SUCH
PROCEEDING SHALL HAVE EXPIRED, THE FISCAL OFFICER MAY FILE A COPY OF THE
ORDER OF THE FISCAL OFFICER CONTAINING THE AMOUNT FOUND TO BE DUE WITH
THE COUNTY CLERK OF THE COUNTY OF RESIDENCE OR PLACE OF BUSINESS OF ANY
OF THE FOLLOWING:
(I) ANY SUBSTANTIALLY-OWNED AFFILIATED ENTITY OR ANY SUCCESSOR OF THE
CONTRACTOR OR SUBCONTRACTOR;
(II) ANY OF THE PARTNERS IF THE CONTRACTOR OR SUBCONTRACTOR IS A PART-
NERSHIP OR ANY OF THE FIVE LARGEST SHAREHOLDERS OF THE CONTRACTOR OR
SUBCONTRACTOR, AS DETERMINED BY THE FISCAL OFFICER; OR
(III) ANY OFFICER OF THE CONTRACTOR OR SUBCONTRACTOR WHO KNOWINGLY
PARTICIPATED IN THE VIOLATION OF THIS ARTICLE; PROVIDED, HOWEVER, THAT
THE FISCAL OFFICER SHALL WITHIN FIVE DAYS OF THE FILING OF THE ORDER
PROVIDE NOTICE THEREOF TO THE PARTNER OR A TOP FIVE SHAREHOLDER OR
SUCCESSOR OR SUBSTANTIALLY-OWNED AFFILIATED ENTITY. THE NOTIFIED PARTY
MAY CONTEST THE FILING ON THE BASIS THAT IT IS NOT A PARTNER OR A TOP
FIVE SHAREHOLDER, AN OFFICER OF THE CONTRACTOR OR SUBCONTRACTOR WHO
KNOWINGLY PARTICIPATED IN THE VIOLATION OF THIS ARTICLE, SUCCESSOR OR
SUBSTANTIALLY-OWNED AFFILIATED ENTITY. IF, AFTER REVIEWING THE INFORMA-
TION PROVIDED BY THE NOTIFIED PARTY IN SUPPORT OF SUCH CONTEST, THE
FISCAL OFFICER DETERMINES THAT THE NOTIFIED PARTY IS NOT WITHIN THE
DEFINITIONS DESCRIBED HEREIN, THE FISCAL OFFICER SHALL IMMEDIATELY WITH-
DRAW THE FILING OF THE ORDER.
(B) THE FILING OF SUCH ORDER SHALL HAVE THE FULL FORCE AND EFFECT OF A
JUDGMENT DULY DOCKETED IN THE OFFICE OF SUCH CLERK. THE ORDER MAY BE
ENFORCED BY AND IN THE NAME OF THE FISCAL OFFICER IN THE SAME MANNER,
S. 1648--A 11
AND WITH LIKE EFFECT, AS THAT PRESCRIBED BY THE CIVIL PRACTICE LAW AND
RULES FOR THE ENFORCEMENT OF A MONEY JUDGMENT.
9. WHEN A FINAL DETERMINATION HAS BEEN MADE AGAINST A SUBCONTRACTOR IN
FAVOR OF A COMPLAINANT AND THE CONTRACTOR HAS MADE PAYMENT TO THE
COMPLAINANT OF ANY WAGES AND INTEREST DUE THE COMPLAINANT AND ANY CIVIL
PENALTY, AND PROVIDING THAT NO RELEVANT PROCEEDING FOR JUDICIAL REVIEW
SHALL THEN BE PENDING AND THE TIME FOR INITIATION OF SUCH PROCEEDING
SHALL HAVE EXPIRED, THE CONTRACTOR MAY FILE A COPY OF THE ORDER OF THE
FISCAL OFFICER CONTAINING THE AMOUNT FOUND TO BE DUE WITH THE COUNTY
CLERK OF THE COUNTY OF RESIDENCE OR PLACE OF BUSINESS OF THE SUBCONTRAC-
TOR. THE FILING OF SUCH ORDER SHALL HAVE THE FULL FORCE AND EFFECT OF A
JUDGMENT DULY DOCKETED IN THE OFFICE OF SUCH CLERK. THE JUDGMENT MAY BE
DOCKETED IN FAVOR OF THE CONTRACTOR WHO MAY PROCEED AS A JUDGMENT CREDI-
TOR AGAINST THE SUBCONTRACTOR FOR THE RECOVERY OF ALL MONIES PAID BY THE
CONTRACTOR UNDER SUCH ORDER.
§ 228-D. FAILURE TO PROTEST UNDERPAYMENTS. NOTWITHSTANDING ANY INCON-
SISTENT PROVISION OF THIS CHAPTER OR OF ANY OTHER GENERAL, SPECIAL OR
LOCAL LAW, ORDINANCE, CHARTER OR ADMINISTRATIVE CODE, AN EMPLOYEE SHALL
NOT BE BARRED FROM THE RIGHT TO RECOVER THE DIFFERENCE BETWEEN THE
AMOUNT ACTUALLY PAID TO THE EMPLOYEE AND THE AMOUNT WHICH SHOULD HAVE
BEEN PAID TO THE EMPLOYEE PURSUANT TO AN ORDER ENTERED UNDER THE
PROVISIONS OF THIS ARTICLE BECAUSE OF THE PRIOR RECEIPT BY THE EMPLOYEE
WITHOUT PROTEST OF WAGES PAID OR ON ACCOUNT OF THE EMPLOYEE'S FAILURE TO
STATE ORALLY OR IN WRITING UPON ANY PAYROLL OR RECEIPT WHICH THE EMPLOY-
EE IS REQUIRED TO SIGN THAT THE WAGES RECEIVED BY THE EMPLOYEE ARE
RECEIVED UNDER PROTEST, OR ON ACCOUNT OF THE EMPLOYEE'S FAILURE TO INDI-
CATE THE EMPLOYEE'S PROTEST AGAINST THE AMOUNT, OR THAT THE AMOUNT SO
PAID DOES NOT CONSTITUTE PAYMENT IN FULL OF WAGES DUE THE EMPLOYEE FOR
THE PERIOD COVERED BY SUCH PAYMENT.
§ 228-E. STATEMENTS SHOWING AMOUNTS DUE FOR WAGES. 1. SUBCONTRACTORS
ENGAGED FOR WORK BY A CONTRACTOR OR ITS SUBCONTRACTOR SHALL, UPON
RECEIPT FROM THE CONTRACTOR OR ITS SUBCONTRACTOR OF THE SCHEDULE OF
WAGES AND SUPPLEMENTS SPECIFIED IN THE CONTRACT, PROVIDE TO THE CONTRAC-
TOR OR ITS SUBCONTRACTOR A VERIFIED STATEMENT ATTESTING THAT THE SUBCON-
TRACTOR HAS RECEIVED AND REVIEWED SUCH SCHEDULE OF WAGES AND SUPPLE-
MENTS, AND AGREES THAT IT WILL PAY THE APPLICABLE PREVAILING WAGES AND
WILL PAY OR PROVIDE THE SUPPLEMENTS SPECIFIED THEREIN. SUCH VERIFIED
STATEMENT SHALL BE FILED IN THE MANNER DESCRIBED IN SUBDIVISION THREE OF
THIS SECTION. IT SHALL BE A VIOLATION OF THIS ARTICLE FOR ANY CONTRACTOR
OR ITS SUBCONTRACTOR TO FAIL TO PROVIDE FOR ITS SUBCONTRACTOR A COPY OF
THE SCHEDULE OF WAGES AND SUPPLEMENTS SPECIFIED IN THE CONTRACT.
2. BEFORE GRANT FUNDS ARE RELEASED BY AN ARTS AGENCY IT SHALL BE THE
DUTY OF THE COMPTROLLER OR THE FINANCIAL OFFICER OF SUCH ARTS AGENCY OR
OTHER OFFICER OR PERSON CHARGED WITH THE CUSTODY AND DISBURSEMENT OF THE
GRANT FUNDS PURSUANT TO THE CONTRACT AND UNDER WHICH PAYMENT IS MADE, TO
REQUIRE THE CONTRACTOR TO FILE A STATEMENT IN WRITING IN FORM SATISFAC-
TORY TO SUCH OFFICER CERTIFYING TO THE AMOUNTS THEN DUE AND OWING FROM
SUCH CONTRACTOR FILING SUCH STATEMENT TO OR ON BEHALF OF ANY AND ALL
EMPLOYEES FOR DAILY OR WEEKLY WAGES ON ACCOUNT OF LABOR PERFORMED UPON
THE WORK UNDER THE CONTRACT, SETTING FORTH THEREIN THE NAMES OF THE
PERSONS WHOSE WAGES ARE UNPAID AND THE AMOUNT DUE TO OR ON BEHALF OF
EACH RESPECTIVELY, WHICH STATEMENT SO TO BE FILED SHALL BE VERIFIED BY
THE OATH OF THE CONTRACTOR THAT THE CONTRACTOR HAS READ SUCH STATEMENT
SUBSCRIBED BY THE CONTRACTOR AND KNOWS THE CONTENTS THEREOF, AND THAT
THE SAME IS TRUE OF THE CONTRACTOR'S OWN KNOWLEDGE.
S. 1648--A 12
3. BEFORE PAYMENT IS MADE BY OR ON BEHALF OF AN ARTS AGENCY OF ANY
SUMS DUE ON ACCOUNT OF A CONTRACT AND REPRESENTING THE FINAL PORTION OF
TWENTY PERCENT OF THE TOTAL AMOUNT PAYABLE UNDER THE CONTRACT, IT SHALL
BE THE DUTY OF THE COMPTROLLER OR THE FINANCIAL OFFICER OF SUCH ARTS
AGENCY OR OTHER OFFICER OR PERSON CHARGED WITH THE CUSTODY AND DISBURSE-
MENT OF THE GRANT FUNDS APPLICABLE TO THE CONTRACT UNDER AND PURSUANT TO
WHICH PAYMENT IS MADE TO REQUIRE THE CONTRACTOR TO FILE EVERY VERIFIED
STATEMENT REQUIRED TO BE OBTAINED BY THE CONTRACTOR FROM ITS SUBCONTRAC-
TORS PURSUANT TO SUBDIVISION ONE OF THIS SECTION AND TO FILE A STATEMENT
IN WRITING IN FORM SATISFACTORY TO SUCH OFFICER SETTING FORTH THE
AMOUNTS KNOWN BY THE CONTRACTOR TO BE THEN DUE AND OWING FROM A SUBCON-
TRACTOR, OR FROM A SUBCONTRACTOR OF SUCH SUBCONTRACTOR, FOR SUCH WAGES
AND SUPPLEMENTS, OR CERTIFYING THAT THE CONTRACTOR HAS NO KNOWLEDGE OF
SUCH AMOUNTS OWING TO OR ON BEHALF OF ANY EMPLOYEES OF ITS SUBCONTRAC-
TORS, AND THAT IN THE EVENT IT IS DETERMINED BY THE COMMISSIONER THAT
THE WAGES OR SUPPLEMENTS OR BOTH OF ANY EMPLOYEES OF SUCH SUBCONTRACTORS
HAVE NOT BEEN PAID OR PROVIDED PURSUANT TO THE APPROPRIATE SCHEDULE OF
WAGES AND SUPPLEMENTS, THE CONTRACTOR SHALL BE RESPONSIBLE FOR PAYMENT
OF SUCH WAGES OR SUPPLEMENTS PURSUANT TO THE PROVISIONS OF SECTION TWO
HUNDRED TWENTY-EIGHT-A OF THIS ARTICLE. BEFORE FINAL PAYMENT IS MADE OF
ANY SUMS DUE ON ACCOUNT OF SUCH CONTRACT, THE CONTRACTOR SHALL BE
REQUIRED TO FILE A SUPPLEMENTAL STATEMENT SETTING FORTH ANY ADDITIONAL
AMOUNTS KNOWN BY THE CONTRACTOR TO BE THEN DUE AND OWING BY EACH SUBCON-
TRACTOR FOR SUCH WAGES OR SUPPLEMENTS, OR THAT THE CONTRACTOR HAS NO
KNOWLEDGE OF SUCH AMOUNTS OWING TO OR ON BEHALF OF ANY EMPLOYEE OF ITS
SUBCONTRACTORS. SUCH STATEMENTS SO TO BE FILED SHALL BE VERIFIED BY THE
OATH OF THE CONTRACTOR THAT THE CONTRACTOR HAS READ SUCH STATEMENTS
SUBSCRIBED BY THE CONTRACTOR AND KNOWS THE CONTENTS THEREOF, AND THAT
THE SAME IS TRUE OF THE CONTRACTOR'S OWN KNOWLEDGE, EXCEPT WITH RESPECT
TO WAGES AND SUPPLEMENTS OWING BY SUBCONTRACTORS WHICH MAY BE CERTIFIED
UPON INFORMATION AND BELIEF.
4. IF ANY INTERESTED PERSON SHALL HAVE PREVIOUSLY FILED A PROTEST IN
WRITING OBJECTING TO THE RELEASE OF GRANT FUNDS TO ANY CONTRACTOR OR
SUBCONTRACTOR TO THE EXTENT OF THE AMOUNT OR AMOUNTS DUE OR TO BECOME
DUE TO SUCH PERSON FOR DAILY OR WEEKLY WAGES FOR LABOR PERFORMED ON THE
WORK WHICH WAS FUNDED BY SUCH GRANT, OR IF FOR ANY OTHER REASON IT MAY
BE DEEMED ADVISABLE, THE COMPTROLLER OR THE FINANCIAL OFFICER OF THE
ARTS AGENCY OR OTHER OFFICER OR PERSON CHARGED WITH THE CUSTODY AND
DISBURSEMENT OF THE GRANT FUNDS APPLICABLE TO THE CONTRACT FOR SUCH
WORK, MAY DEDUCT FROM THE WHOLE AMOUNT OF ANY PAYMENT ON ACCOUNT THEREOF
THE SUM OR SUMS ADMITTED BY ANY CONTRACTOR OR SUBCONTRACTOR IN SUCH
STATEMENT OR STATEMENTS AS FILED TO BE DUE AND OWING BY THE CONTRACTOR
OR SUBCONTRACTOR ON ACCOUNT OF LABOR PERFORMED ON SUCH WORK BEFORE
DISBURSING SUCH GRANT FUNDS, AND MAY WITHHOLD THE AMOUNT SO DEDUCTED FOR
THE BENEFIT OF THE EMPLOYEES WHOSE WAGES ARE UNPAID AS SHOWN BY THE
VERIFIED STATEMENTS FILED BY ANY CONTRACTOR OR SUBCONTRACTOR, AND MAY
PAY DIRECTLY TO ANY PERSON THE AMOUNT OR AMOUNTS SHOWN BY THE STATEMENTS
FILED AS HEREINBEFORE REQUIRED TO BE DUE TO SUCH PERSON OR SUCH PERSON'S
DULY AUTHORIZED COLLECTIVE BARGAINING LABOR ORGANIZATION RECEIVING SUCH
PAYMENT TO THE EXTENT OF THE AMOUNT THEREOF.
§ 228-F. PROVISIONS IN CONTRACTS PROHIBITING DISCRIMINATION ON ACCOUNT
OF RACE, CREED, COLOR, NATIONAL ORIGIN, AGE, SEX OR DISABILITY. EVERY
CONTRACT FOR WORK SHALL CONTAIN PROVISIONS BY WHICH THE CONTRACTOR
AGREES:
1. THAT IN THE HIRING OF EMPLOYEES FOR THE PERFORMANCE OF WORK UNDER
THE CONTRACT OR ANY SUBCONTRACT THEREUNDER WITHIN THE TERRITORIAL LIMITS
S. 1648--A 13
OF THIS STATE, NO CONTRACTOR OR SUBCONTRACTOR, NOR ANY PERSON ACTING ON
BEHALF OF SUCH CONTRACTOR OR SUBCONTRACTOR, SHALL BY REASON OF RACE,
CREED, COLOR, NATIONAL ORIGIN, AGE, SEX OR DISABILITY, DISCRIMINATE
AGAINST ANY CITIZEN OF THE STATE OF NEW YORK WHO IS QUALIFIED AND AVAIL-
ABLE TO PERFORM THE WORK TO WHICH THE EMPLOYMENT RELATES;
2. THAT NO CONTRACTOR OR SUBCONTRACTOR, NOR ANY PERSON ACTING ON SUCH
ENTITY'S BEHALF SHALL, IN ANY MANNER, DISCRIMINATE AGAINST OR INTIMIDATE
ANY EMPLOYEE HIRED FOR THE PERFORMANCE OF WORK UNDER THE CONTRACT ON
ACCOUNT OF RACE, CREED, COLOR, NATIONAL ORIGIN, AGE, SEX OR DISABILITY;
3. THAT THERE MAY BE DEDUCTED FROM THE AMOUNT PAYABLE TO THE CONTRAC-
TOR BY THE ARTS AGENCY UNDER THE CONTRACT A PENALTY OF FIFTY DOLLARS FOR
EACH PERSON FOR EACH DAY DURING WHICH SUCH PERSON WAS DISCRIMINATED
AGAINST OR INTIMIDATED IN VIOLATION OF THE PROVISIONS OF THE CONTRACT;
AND
4. THAT THE CONTRACT MAY BE CANCELLED OR TERMINATED BY THE ARTS AGEN-
CY, AND ALL MONEYS OTHERWISE TO BE DISBURSED PURSUANT TO SUCH CONTRACT
MAY BE FORFEITED FOR A SECOND OR ANY SUBSEQUENT VIOLATION OF THE TERMS
OR CONDITIONS OF THIS SECTION OF THE CONTRACT.
§ 228-G. PENALTIES. 1. ANY CONTRACTOR OR SUBCONTRACTOR WHO SHALL UPON
SUCH ENTITY'S OATH VERIFY ANY STATEMENT REQUIRED TO BE FILED UNDER THIS
ARTICLE WHICH IS KNOWN BY SUCH ENTITY TO BE FALSE SHALL BE GUILTY OF
PERJURY AND PUNISHABLE AS PROVIDED BY THE PENAL LAW.
2. WHEN A CONTRACT CONTAINS AS PART THEREOF A SCHEDULE OF WAGES AS
PROVIDED FOR IN THIS ARTICLE, ANY CONTRACTOR WHO, AFTER ENTERING INTO
SUCH CONTRACT, AND ANY SUBCONTRACTOR OF SUCH CONTRACTOR FAILS TO PAY TO
ANY EMPLOYEE THE WAGES STIPULATED IN SUCH WAGE SCHEDULE IS GUILTY OF A
MISDEMEANOR AND UPON CONVICTION SHALL BE PUNISHED FOR A FIRST OFFENSE BY
A FINE OF FIVE HUNDRED DOLLARS OR BY IMPRISONMENT FOR NOT MORE THAN
THIRTY DAYS OR BY BOTH SUCH FINE AND IMPRISONMENT; FOR A SECOND OFFENSE
BY A FINE OF ONE THOUSAND DOLLARS, AND IN ADDITION THERETO THE CONTRACT
ON WHICH THE VIOLATION HAS OCCURRED SHALL BE FORFEITED; AND NO SUCH
CONTRACTOR SHALL BE ENTITLED TO RECEIVE ANY SUM, NOR SHALL ANY OFFICER,
AGENT OR EMPLOYEE OF THE CONTRACTING ARTS AGENCY PAY ANY SUCH SUM OR
AUTHORIZE ITS PAYMENT FROM THE FUNDS UNDER SUCH ENTITY'S CHARGE OR
CONTROL TO SUCH CONTRACTOR FOR WORK DONE UPON THE CONTRACT ON WHICH THE
CONTRACTOR HAS BEEN CONVICTED OF A SECOND OFFENSE. IF THE CONTRACTOR OR
SUBCONTRACTOR IS A CORPORATION, ANY OFFICER OF SUCH CORPORATION WHO
KNOWINGLY PERMITS THE CORPORATION TO FAIL TO MAKE SUCH PAYMENT SHALL
ALSO BE GUILTY OF A MISDEMEANOR AND THE CRIMINAL AND CIVIL PENALTIES
HEREIN SHALL ATTACH TO SUCH OFFICER UPON CONVICTION.
§ 228-H. ENFORCEMENT OF ARTICLE. IF THE FISCAL OFFICER, AS DEFINED
HEREIN, FINDS THAT ANY CONTRACTOR FAILS TO COMPLY WITH OR EVADES THE
PROVISIONS OF THIS ARTICLE, THE FISCAL OFFICER SHALL PRESENT EVIDENCE OF
SUCH NONCOMPLIANCE OR EVASION TO THE ARTS AGENCY HAVING CHARGE OF SUCH
CONTRACT FOR ENFORCEMENT. WHERE SUCH EVIDENCE INDICATES NONCOMPLIANCE OR
EVASION ON THE PART OF A SUBCONTRACTOR, THE CONTRACTOR SHALL BE RESPON-
SIBLE FOR SUCH NONCOMPLIANCE OR EVASION. IT SHALL BE THE DUTY OF THE
ARTS AGENCY IN CHARGE OF SUCH CONTRACT TO ENFORCE THE PROVISIONS OF THIS
ARTICLE.
§ 4. Severability. If any clause, sentence, paragraph, subdivision,
section or part of this act shall be adjudged by any court of competent
jurisdiction to be invalid, such judgment shall not affect, impair, or
invalidate the remainder thereof, but shall be confined in its operation
to the clause, sentence, paragraph, subdivision, section or part thereof
directly involved in the controversy in which such judgment shall have
been rendered. It is hereby declared to be the intent of the legislature
S. 1648--A 14
that this act would have been enacted even if such invalid provisions
had not been included herein.
§ 5. This act shall take effect on the ninetieth day after it shall
have become a law and shall apply to any grant award made subsequent to
such effective date.
