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SECTION 220
Hours, wages and supplements
Labor (LAB) CHAPTER 31, ARTICLE 8
§ 220. Hours, wages and supplements. 1. Eight hours shall constitute a
legal day's work for all classes of employees in this state except those
engaged in farm and domestic service unless otherwise provided by law.

2. Each contract to which the state or a public benefit corporation or
a municipal corporation or a commission appointed pursuant to law is a
party, and any contract for public work entered into by a third party
acting in place of, on behalf of and for the benefit of such public
entity pursuant to any lease, permit or other agreement between such
third party and the public entity, and which may involve the employment
of laborers, workers or mechanics shall contain a stipulation that no
laborer, worker or mechanic in the employ of the contractor,
subcontractor or other person doing or contracting to do the whole or a
part of the work contemplated by the contract shall be permitted or
required to work more than eight hours in any one calendar day or more
than five days in any one week except in cases of extraordinary
emergency including fire, flood or danger to life or property. No such
person shall be so employed more than eight hours in any day or more
than five days in any one week except in such emergency. Extraordinary
emergency within the meaning of this section shall be deemed to include
situations in which sufficient laborers, workers and mechanics cannot be
employed to carry on public work expeditiously as a result of such
restrictions upon the number of hours and days of labor and the
immediate commencement or prosecution or completion without undue delay
of the public work is necessary in the judgment of the commissioner for
the preservation of the contract site and for the protection of the life
and limb of the persons using the same. Upon the application of any
person interested, the commissioner shall make a determination as to
whether or not on any public project or on all public projects in any
area of this state, sufficient laborers, workers and mechanics of any or
all classifications can be employed to carry on work expeditiously if
their labor is restricted to eight hours per day and five days per week,
and in the event that the commissioner determines that there are not
sufficient workers, laborers and mechanics of any or all classifications
which may be employed to carry on such work expeditiously if their labor
is restricted to eight hours per day and five days per week, and the
immediate commencement or prosecution or completion without undue delay
of the public work is necessary in the judgment of the commissioner for
the preservation of the contract site and for the protection of the life
and limb of the persons using the same, the commissioner shall grant a
dispensation permitting all laborers, workers and mechanics, or any
classification of such laborers, workers and mechanics, to work such
additional hours or days per week on such public project or in such
areas the commissioner shall determine. Whenever such a dispensation is
granted, all work in excess of eight hours per day and five days per
week shall be considered overtime work, and the laborers, workers and
mechanics performing such work shall be paid a premium wage commensurate
with the premium wages prevailing in the area in which the work is
performed. No such dispensation shall be effective with respect to any
public work unless and until the department of jurisdiction, as defined
in this section, certifies to the commissioner that such public work is
of an important nature and that a delay in carrying it to completion
would result in serious disadvantage to the public. Time lost in any
week because of inclement weather by employees engaged in the
construction, reconstruction and maintenance of highways outside of the
limits of cities and villages may be made up during that week and/or the
succeeding three weeks.

2-a. Any person contracting with the state or a public benefit
corporation, or a municipal corporation, or a commission appointed
pursuant to law that shall require more than eight hours work for a
day's labor, unless otherwise permitted by law, is guilty of a
misdemeanor, and upon conviction thereof shall be punished in accordance
with the penal law for each offense.

3. (a) The wages to be paid for a legal day's work, as hereinbefore
defined, to laborers, workmen or mechanics upon such public works, shall
be not less than the prevailing rate of wages as hereinafter defined.
Serving laborers, helpers, assistants and apprentices shall not be
classified as common labor and shall be paid not less than the
prevailing rate of wages as hereinafter defined. No employee shall be
deemed to be an apprentice unless he is individually registered in an
apprenticeship program which is duly registered with the commissioner of
labor in conformity with the provisions of article twenty-three of this
chapter. The wages to be paid for a legal day's work, as hereinbefore
defined, to laborers, workmen or mechanics upon any material to be used
upon or in connection therewith, shall be not less than the prevailing
rate for a day's work in the same trade or occupation in the locality
within the state where such public work on, about or in connection with
which such labor is performed in its final or completed form is to be
situated, erected or used. Such contracts shall contain a provision that
each laborer, workman or mechanic, employed by such contractor,
subcontractor or other person about or upon such public work, shall be
paid the wages herein provided.

(b) The supplements, as hereinafter defined, to be provided to
laborers, workmen or mechanics upon such public works, shall be in
accordance with the prevailing practices in the locality, as hereinafter
defined. Serving laborers, helpers, assistants and apprentices shall
not be classified as common labor and shall be provided supplements in
accordance with the prevailing practices as hereinafter defined. No
employee shall be deemed to be an apprentice unless he is individually
registered in an apprenticeship program which is duly registered with
the industrial commissioner in conformity with the provisions of article
twenty-three of this chapter. The supplements, as hereinafter defined,
to be provided to laborers, workmen or mechanics upon any material to be
used upon or in connection therewith, shall be in accordance with the
prevailing practices in the same trade or occupation in the locality
within the state where such public work on, about or in connection with
which such labor is performed in its final or completed form is to be
situated, erected or used. Such contracts shall contain a provision that
each laborer, workman or mechanic, employed by such contractor,
subcontractor or other person about or upon such public work, shall be
provided the supplements as required in this article.

(c) It shall be the duty of the fiscal officer, as defined in this
section, to ascertain and determine the schedules of supplements to be
provided and wages to be paid workers, laborers and mechanics on such
public work, prior to the time of the advertisement for bids, and such
schedules shall be annexed to and form a part of the specifications for
the work. Such fiscal officer shall file with the department having
jurisdiction such schedules prior to the time of the commencement of the
advertisement for bids on all public works proposed to be constructed.
The term "contract" as used in this article also shall include
reconstruction and repair of any such public work, and any public work
performed under a lease, permit or other agreement pursuant to which the
department of jurisdiction grants the responsibility of contracting for
such public work to any third party proposing to perform such work to
which the provisions of this article would apply had the department of
jurisdiction contracted directly for its performance, or where there is
no lease, permit or other agreement and ownership of a public work is
intended to be assumed by such public entity at any time subsequent to
completion of the public work.

(d) (i) Any person that participates in a public works project in the
capacity of a contractor or subcontractor and who wilfully fails to pay
or provide the prevailing rate of wage or supplements and:

(1) such failure results in underpayments, which in the aggregate
amount to all workers employed by such person, results in an amount less
than twenty-five thousand dollars, shall be guilty of a class A
misdemeanor;

(2) such failure results in underpayments, which in the aggregate
amount to all workers employed by such person, result in an amount
greater than twenty-five thousand dollars, that person shall be guilty
of a class E felony;

(3) such failure results in underpayments, which in the aggregate
amount to all workers employed by such person, result in an amount
greater than one hundred thousand dollars, that person shall be guilty
of a class D felony; or

(4) such failure results in underpayments, which in the aggregate
amount to all workers employed by such person, result in an amount
greater than five hundred thousand dollars, that person shall be guilty
of a class C felony.

(ii) Disposition for violations of this section shall be in accordance
with the penal law. Fines upon conviction for any violation of this
section shall be in accordance with the penal law.

(iii) In addition to the penalties set forth above, any such person
convicted of a second offense under subparagraph (i) of this paragraph
within five years shall disgorge profits and shall not be entitled to
receive any monies due and owing on the contract or subcontract; nor
shall any officer, agent or employee of the department of jurisdiction
or its financial officer pay to such person any such monies.
Notwithstanding the foregoing, the department of jurisdiction may
release monies due and owing on the contract or subcontract which have
not been withheld pursuant to section two hundred twenty-b of this
article for the sole purpose of satisfying the contractor's or
subcontractor's obligations under the contract or subcontract to third
parties who were not themselves involved in the violations giving rise
to the subsequent offense. For the purposes of this subdivision, third
parties shall include, but not be limited to, contractors,
subcontractors, materialmen, and funds, plans, and programs providing
pension, health, and welfare benefits to workmen, laborers, and
mechanics employed pursuant to such contract or subcontract. The
department of jurisdiction may release such monies upon the application
of the contractor provided that no monies shall be released without the
written approval of the fiscal officer or by order of a court of
competent jurisdiction.

(iv) In addition to the penalties set forth above, every contract for
a public work project shall contain a term stating that the filing of
payrolls in a manner consistent with subdivision three-a of this section
is a condition precedent to payment of any sums due and owing to any
person for work done upon the project.

(e) The commissioner shall ensure that all supplements due under this
article shall be paid to or on behalf of an employee. The commissioner
shall require proof that the pension plan for which any supplement has
been paid is qualified as a bona fide plan by the United States internal
revenue service. Acceptable proof shall be shown by submission of a
determination letter issued by the United States internal revenue
service.

3-a. a. (i) It shall be the duty of the department of jurisdiction as
defined in this section to ascertain from the plans and specifications
the classification of workers, mechanics and laborers to be employed on
such project. Such department shall file with the fiscal officer, as
defined in this section, the classification of workers, mechanics and
laborers to be employed upon such public works project, together with a
statement of the work to be performed by each such classification. From
such statement it shall be the duty of the fiscal officer to make a
proper classification of such workers, mechanics and laborers taking
into account whether the work is heavy and highway, building, sewer and
water, tunnel work or residential and to make a determination of the
schedules of wages and supplements to be paid or provided, as the case
may be, therefor.

(ii) The contractor and every sub-contractor on public works contracts
shall post in a prominent and accessible place on the site where the
work is performed a legible statement of all wage rates and supplements
as specified in the contract to be paid or provided, as the case may be,
for the various classes of mechanics, workers, or laborers employed on
the work. Such posted statement shall be written in plain English and
titled, in lettering no smaller than two inches in height and two inches
in width, with the phrase "Prevailing Rate of Wages". Such posted
statement shall be constructed of materials capable of withstanding
adverse weather conditions. The contractor and every sub-contractor
shall notify all laborers, workers or mechanics in their employ in
writing of the prevailing rates of wages and supplements for their
particular job classification. Such notification shall be given to every
laborer, worker or mechanic upon hire, with their first pay stub and
every pay stub thereafter At the beginning of performance of every
public works contract, and with the first paycheck after July first of
each year, the contractor and every sub-contractor shall notify all
laborers, workers, and mechanics in their employ in writing, in English
and in the language identified by each laborer, worker, and mechanic as
his or her primary language, in accordance with such form as is
prescribed by the fiscal officer, of the telephone number and address
for the fiscal officer. The notice shall also inform each laborer,
worker, or mechanic of his or her right to contact the fiscal officer or
some other representative if, at any time while working for the public
works contractor or sub-contractor, he or she does not receive the
proper prevailing rate of wages or supplements for his or her particular
job classification that he or she is entitled to receive under the
contract. If after investigation the fiscal officer finds that a
contractor or sub-contractor has (1) failed to post the statement
required under this subparagraph, (2) failed to provide any notification
to laborers, workers and mechanics as required under this subparagraph,
(3) willfully posted the incorrect prevailing wages and supplements, or
(4) willfully set forth the incorrect prevailing wage or supplement with
every pay stub, the fiscal officer shall, by an order which shall
describe particularly the nature of the alleged violation, assess the
contractor or sub-contractor a civil penalty of not more than fifty
dollars upon the first finding of a violation, two hundred fifty dollars
upon the second finding of a violation, and five hundred dollars for
each subsequent violation. In assessing the amount of the penalty, the
fiscal officer shall give due consideration to the size of the
employer's business, the good faith of the employer, and the gravity of
the violation.

The fiscal officer shall prepare templates that comply with the
notification requirements of this subparagraph. Each such template shall
be dual-language, including English and one additional language. The
fiscal officer shall determine, in his or her discretion, which
languages to provide in addition to English, based on the size of the
New York state population that speaks each language and any other factor
that the fiscal officer shall deem relevant. All such templates shall be
posted on the fiscal officer's website and made available for
downloading by contractors and subcontractors. When any laborer, worker,
or mechanic identifies his or her primary language and a template is not
made available by the fiscal officer in that language, the contractor or
subcontractor shall comply with this subparagraph by providing such
laborer, worker, or mechanic an English-language notice or
acknowledgment. A contractor or subcontractor shall not be penalized for
errors or omissions in the non-English portions of any notice provided
by the fiscal officer. The fiscal officer shall have discretion to waive
or alter the notification requirements of this subparagraph for
temporary help firms as defined in section nine hundred sixteen of this
chapter.

(iii) The contractor and every sub-contractor shall keep original
payrolls or transcripts thereof, subscribed and sworn to or affirmed by
him or her as true under the penalties of perjury, setting forth the
names and addresses and showing for each worker, laborer, or mechanic
the hours and days worked, the occupations worked, the hourly wage rates
paid and the supplements paid or provided. Such payrolls or transcripts
thereof shall be accompanied by a copy of each notice required under
subdivision one or two of section one hundred ninety-five of this
chapter for every laborer, worker or mechanic, which shall be subscribed
and sworn to or affirmed as true under penalties of perjury and shall be
deemed to be part of the original payrolls or transcripts thereof for
purposes of this subdivision. Where the contractor or sub-contractor
maintains no regular place of business in New York state and where the
amount of the contract is in excess of twenty-five thousand dollars such
payrolls shall be kept on the site of the work. All other contractors or
sub-contractors shall produce within five days on the site of the work
and upon formal order of the commissioner or his or her designated
representative such original payrolls or transcripts thereof, subscribed
and sworn to or affirmed by him or her as true under the penalties of
perjury, as may be deemed necessary to adequately enforce the provisions
of this article. Every contractor, and sub-contractor, shall submit to
the department of jurisdiction within thirty days after issuance of its
first payroll, and every thirty days thereafter, a transcript of the
original payroll record, as provided by this article, subscribed and
sworn to or affirmed as true under the penalties of perjury. Any person
who willfully fails to file such payroll records with the department of
jurisdiction, commissioner, or the fiscal officer shall be guilty of a
class E felony. In addition, any person who willfully fails to file such
payroll records within the time specified in this subparagraph shall be
subject to a civil penalty of up to one thousand dollars per day.

(iv) The department of jurisdiction shall be required to collect and
maintain such payroll records at the times specified in subparagraph
(iii) of this paragraph. The original payrolls or transcripts shall be
preserved by the department of jurisdiction for five years from the date
of completion of the work on the awarded contract. The department of
jurisdiction as herein referred to shall be the department of the state,
board or officer in the state, or municipal corporation or commission or
board appointed pursuant to law, whose duty it is to prepare or direct
the preparation of the plans and specifications for a public work
project. Each department of jurisdiction shall designate in writing an
individual employed by such department responsible for the receipt,
collection and review for facial validity of payrolls. Said designation
shall be filed with the fiscal officer and posted in a conspicuous
location at the project site. If the designated individual cannot
perform the receipt, collection and review of certified payrolls duties
as indicated above, for any reason, including but not limited to
reassignment, promotion or separation from employment, the department of
jurisdiction must immediately designate another individual employed by
such department to fulfill such responsibilities. In the event that a
department of jurisdiction fails to name an individual responsible for
the receipt, collection and review for facial validity of payrolls, as
set forth above, then the individual so responsible shall be the
individual who is the chief policy-making individual of such department
of jurisdiction.

b. All departments of jurisdiction in respect of public work as to
which the industrial commissioner is fiscal officer, as defined in this
section, shall furnish to the industrial commissioner the following
information immediately upon signing of a contract for such public work:
(a) the name and address of the contractor engaged by said department of
jurisdiction; (b) the date when the contract was let; (c) the
approximate consideration stipulated for in said contract.

c. The fiscal officer may require any person or corporation performing
such public work to file with the fiscal officer within ten days of
receipt of said request, payroll records, sworn to as to their validity
and accuracy, requested by the fiscal officer, for said public work or
for any public or private work performed by said person or corporation
during the same period of time as said public work. Such payroll records
shall include a copy of each notice required under subdivision one or
two of section one hundred ninety-five of this chapter for every
laborer, worker or mechanic, which shall be subscribed and sworn to or
affirmed as true under penalties of perjury. In addition, the fiscal
officer may require such person or corporation to furnish proof of any
supplements provided or amount paid to or on behalf of laborers, workers
or mechanics in satisfaction of the obligation to provide supplements
pursuant to this section. In the event said person or corporation fails
to provide the requested information within the allotted ten days, the
fiscal officer shall, within fifteen days, order the department of
jurisdiction to immediately withhold from payment to said person or
corporation up to twenty-five percent of the amount, not to exceed one
hundred thousand dollars, to be paid to said person or corporation under
the terms of the contract pursuant to which said public work is being
performed. Said amount withheld shall be immediately released upon
receipt by the department of jurisdiction of a notice from the fiscal
officer indicating that the request for records had been satisfied.

d. Any person who wilfully fails to file the requested payroll records
within ninety days of a demand by the fiscal officer shall be guilty of
a class A misdemeanor, provided, however, that a person who violates
this subdivision after having previously been convicted of violating
this subdivision within the past five years shall be guilty of a class E
felony.

e. Utility companies and their contractors and subcontractors who,
under local law or ordinance, are required, as a condition of issuance
of a permit to use or open a street, to agree that none but competent
workers, skilled in the work required of them shall be employed thereon
and that prevailing scale of union wages shall be the prevailing wage
for the similar titles as established by the fiscal officer pursuant to
this section, paid to those so employed, shall be required to keep
original payrolls or transcripts thereof, subscribed and sworn to or
affirmed by him or her as true under the penalties of perjury, setting
forth the names and addresses and showing for each workman, laborer, or
mechanic the hours and days worked, the occupations worked, the hourly
wage rates paid and the supplements paid or provided as, and in the
manner required by paragraphs a, b and c of this subdivision.

f. Prevailing wage shall be paid for work performed on a public works
worksite pursuant to this section for any work involving the delivery to
and hauling from such worksites of aggregate supply construction
materials, as well as any return hauls, whether empty or loaded and any
time spent loading/unloading.

3-b. 1. Public work advisory board. There is hereby created in the
department an advisory board on public work composed of six members to
be appointed by the governor by and with the advice and consent of the
senate. Two members of the advisory board shall be persons known to
represent the interests of employers in the construction industry, two
persons shall be known to represent the interest of employees therein,
and two members shall be persons appointed to represent the public. The
governor may remove any member when he or she ceases to represent the
interests in whose behalf he or she was appointed. The commissioner of
labor shall be an additional member of such board without any voting
power and act as chairman thereof and shall designate an employee of the
department to be secretary. The board shall meet at the call of the
commissioner of labor and when engaged upon the work of the board each
member, except the commissioner, shall not receive a salary or other
compensation, but shall be reimbursed for reasonable traveling and other
expenses to be audited by the state comptroller.

2. Terms of office. All members of the advisory board shall be
appointed for a term of six years to begin at the expiration of the term
of office of the member whom he is to succeed. Any member appointed to
fill a vacancy occurring otherwise than by expiration of term shall be
appointed for the unexpired term of the member whom he is to succeed.

3-c. The advisory board shall adopt rules and regulations to govern
its own proceedings, and to expedite the making by it of the
examinations and determinations required by this chapter. The members of
the advisory board shall have power:

1. To issue subpoenas for and compel the attendance of witnesses and
the production of books, contracts, papers, documents and other
evidence;

2. To hear testimony and take or cause to be taken depositions of
witnesses residing within or without this state in the manner prescribed
by law for like depositions in civil actions in the supreme court.
Subpoenas and commissions to take testimony shall be issued under the
seal of the department.

3-d. The fiscal officer of any political subdivision of the state,
wherein a public work project is proposed to be constructed, may request
the industrial commissioner to make a classification by trades or
occupations of laborers, workmen and mechanics required to perform the
public work in its completed form. The board shall, when requested by
the industrial commissioner, examine into proposed public work projects
and determine the classification by trades or occupations of laborers,
workmen and mechanics required to perform the public work in its
completed form; and to determine which of same are skilled, semi-skilled
or unskilled. The board shall file with the industrial commissioner its
findings, determinations and recommendations.

3-e. Apprentices will be permitted to work as such only when they are
registered, individually, under a bona fide program registered with the
New York State Department of Labor. The allowable ratio of apprentices
to journeymen in any craft classification shall not be greater than the
ratio permitted to the contractor as to his work force on any job under
the registered program. Any employee listed on a payroll at an
apprentice wage rate, who is not registered as above, shall be paid the
wage rate determined by the New York State Department of Labor for the
classification of work he actually performed. The contractor or
subcontractor will be required to furnish written evidence of the
registration of his program and apprentices as well as of the
appropriate ratios and wage rates, for the area of construction prior to
using any apprentices on the contract work.

4. This section shall not apply to:

a. Stationary firemen in state hospitals;

b. Other persons regularly employed in the state institutions, except
mechanics;

c. Engineers, electricians and elevator men in the bureau of building
management of the office of general services during the annual session
of the legislature.

5. Definitions. a. The "prevailing rate of wage," for the intents and
purposes of this article, shall be the rate of wage paid in the
locality, as hereinafter defined, by virtue of collective bargaining
agreements between bona fide labor organizations and employers of the
private sector, performing public or private work provided that said
employers employ at least thirty per centum of workers, laborers or
mechanics in the same trade or occupation in the locality where the 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 collective 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 his annual determination.
In the event that it is determined after a contest, as provided in
subdivision six of this section, that less than thirty percent of the
workers, laborers or mechanics in a particular trade or occupation in
the locality where the work is being performed receive a collectively
bargained rate of wage, then the average wage paid to such workers,
laborers or mechanics in the same trade or occupation in the locality
for the twelve-month period preceding the fiscal officer's annual
determination shall be the prevailing rate of wage. Laborers, workers or
mechanics for whom a prevailing rate of wage is to be determined shall
not be considered in determining such prevailing wage.

b. "Supplements," for the intents and purposes of this article, 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, vacation benefits, holiday pay
life insurance, and apprenticeship training.

c. "Prevailing practices in the locality," for the intents and
purposes of this article, shall be the practice of providing
supplements, as hereinbefore defined, as provided by virtue of
collective bargaining agreements between bona fide labor organizations
and employers of the private sector, performing public or private work
provided that said employers employ at least thirty per centum of
workers, laborers or mechanics in the same trade or occupation 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 times as the prevailing
rate of wage is determined pursuant to this section.

d. "Locality" means such areas of the state described and defined for
a trade or occupation in the current collective bargaining agreements
between bona fide labor organizations and employers of the private
sector, performing public and private work.

e. The "fiscal officer," as used herein, shall be deemed to be, on
public work performed by or on behalf of the state or a public benefit
corporation or a county or a village, or other civil division of the
state, except a city, with a population in excess of one million, the
commissioner of labor; and on public work performed by or on behalf of a
city with a population in excess of one million, the comptroller or
other analogous officer of such city.

f. The term "verified complaint," as applied to a claim against a
municipality, shall include a verified demand or verified notice of
claim heretofore, and since the first day of January, nineteen hundred
thirty-five, filed with the fiscal officer of such municipality in
accordance with the provisions of the local charter or local laws or
ordinances relating generally to the filing of claims or demands against
such municipality; and any person who has filed such a demand or notice
shall be deemed to have filed a verified complaint as of the date, not
earlier than the first day of January, nineteen hundred thirty-five,
mentioned in such notice or demand as the commencement of the period in
relation to which such claim or demand is made.

g. "Substantially owned-affiliated entity" shall mean 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 contractor or subcontractor individually or collectively also owns a
controlling 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
documented ownership interest. Such indicia shall include, power or
responsibility 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 relevant entity.

h. "Entity" shall mean a partnership, association, joint venture,
company, sole proprietorship, corporation or any other form of doing
business.

i. "Parent company" shall mean an entity that directly controls the
contractor or subcontractor.

j. "Subsidiary" shall mean an entity that is controlled directly, or
indirectly through one or more intermediaries, by a contractor or
subcontractor or by the contractor's parent company.

k. "Successor" shall mean an entity engaged in work substantially
similar to that of the predecessor, where there is substantial
continuity of operation with that of the predecessor.

l. "Person" shall mean a human being and shall also include an
"entity" as defined in this article, including, but not limited to, a
contractor or subcontractor.

6. The fiscal officer may, and on the written request of any
interested person shall, require any person or corporation performing
such public work to file with such fiscal officer schedules of the
supplements to be provided and wages to be paid to such laborers,
workmen or mechanics. Any such person or corporation shall, within ten
days after the receipt of written notice of such requirement, file with
the fiscal officer such schedules of wages and supplements. An employer
may contest a determination by the fiscal officer under paragraphs a and
c of subdivision five of this section. The employer must allege and
prove by competent evidence, that the actual percentage of workers,
laborers or mechanics is below the required thirty per centum and during
the pendency of any such contest and until final determination thereof,
the work in question shall proceed under the rate established by the
fiscal officer.

7. Compliance investigations. The fiscal officer as herein defined
shall on a verified complaint in writing of any person interested or of
any employee organization pursuant to subdivision eight-d of this
section, and may on his own initiative cause a compliance investigation
to be made to determine whether the contractor or a subcontractor has
paid the prevailing rate of wages and prevailing practices for
supplements in the same trade or occupation in the locality within the
state where such public work is being performed, or the hours of labor
performed by the workmen, laborers and mechanics employed on such public
work, or both. The fiscal officer or his agents, examiners and
inspectors may examine or cause to be examined the books and records
pertaining to the rate of wages paid and supplements provided to the
laborers, workmen and mechanics on said public work and the hours of
labor performed by such laborers, workmen and mechanics on said public
work. The fiscal officer in such investigation shall be deemed to be
acting in a judicial capacity, and shall have the right to issue
subpoenas, administer oaths and examine witnesses. The enforcement of a
subpoena issued under this section shall be regulated by the civil
practice law and rules. Such fiscal officer shall make either an order,
determination or any other disposition, including but not limited to an
agreed upon settlement and/or stipulation, within six months from the
date of filing of such verified complaint, and where a compliance
investigation is made without the filing of a verified complaint, within
six months from the date a compliance investigation is initiated by such
fiscal officer. Upon the making of said order or determination, or upon
arriving at such agreed upon settlement and/or stipulation, a copy
thereof shall be sent by certified mail, return receipt requested, by
the fiscal officer: (i) to the person and employee organization, if any,
who or which initiated the complaint, (ii) to the person or corporation,
if any, against whom the complaint was brought, and (iii) where a
compliance investigation is made without the filing of a complaint, to
the person who or which was the subject of the compliance investigation.

7-a. The fiscal officer must make an inquiry as to the willfulness of
the alleged violation which is the subject of a compliance investigation
pursuant to subdivision seven of this section. In the event a formal
hearing is held pursuant to subdivision eight of this section, the
fiscal officer, upon a review of the entire record and a finding of
credible evidence, must make a determination, as to the willfulness of
said violation. No finding of willfulness made pursuant to the
provisions of this subdivision shall be dispositive in a criminal
prosecution initiated pursuant to section one hundred ninety-eight-a of
this chapter, or paragraph (d) of subdivision three of this section, or
paragraph (c) of subdivision three-a of this section or any other
provision of law.

8. Hearings. Before issuing an order or determination as provided in
subdivision seven of this section, the fiscal officer shall order a
hearing thereon at a time and place to be specified, and shall give
notice thereof, together with a copy of such complaint or the purpose
thereof, or a statement of the facts disclosed upon such investigation,
which notice shall be served personally or by mail on any person
affected thereby; such person shall have an opportunity to be heard in
respect to the matters complained of at the time and place specified in
such notice, which time shall be not less than five days from the
service of the notice personally or by mail. The fiscal officer in such
hearing shall be deemed to be acting in a judicial capacity, and shall
have the right to issue subpoenas, administer oaths and examine
witnesses. The enforcement of a subpoena issued under this section shall
be regulated by the civil practice law and rules. Such hearing shall be
expeditiously conducted and upon such hearing the fiscal officer shall
determine the issues raised thereon and shall make and file an order in
the office of the fiscal officer stating such determination, and
forthwith serve a copy of such order, with a notice of the filing
thereof, upon the parties to such proceeding, personally or by mail.
Such order shall direct payment of wages or supplements found to be due,
including interest at the rate of interest then in effect as prescribed
by the superintendent of financial services pursuant to section
fourteen-a of the banking law per annum from the date of the
underpayment to the date of the payment, provided, however, that such
interest rate shall not apply to subdivision eight-c of this section.

In addition to directing payment of wages or supplements including
interest found to be due, such order 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
history of previous violations and the failure to comply with
recordkeeping 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
comptroller or other analogous officer, the penalty shall be paid to
said officer for deposit in the city treasury.

Upon the entry of such order any party aggrieved thereby may commence
a proceeding for the review thereof pursuant to article seventy-eight of
the civil practice law and rules within thirty days from the notice of
the filing of the said order in the office of the fiscal officer. Said
proceeding shall be commenced directly in the appellate division of the
supreme court. If such order is not reviewed, or is so reviewed and the
final decision is in favor of the complainant and the order involves or
relates to the rate of wages paid or the supplements provided on such
public work, the complainant or any other person affected may within six
months after the service of notice of the filing of said order, or the
notice of entry of said final decision on review, institute an action
against the person found violating this act for the recovery of the
difference between the sum actually paid or provided and the amount
which should have been paid or provided, together with interest at the
rate of interest provided herein, as determined by said order or
decision, as the case may be, from and after the date of the filing of
said verified complaint, with the fiscal officer or of the filing of the
fiscal officer's report of investigation made on his own initiative.
Provided that no proceeding for judicial review as provided herein 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.

8-a. Notwithstanding any inconsistent provision of this chapter or of
any other general, special or local law, ordinance, charter or
administrative code, the prior receipt without protest of the wages,
salary or supplements paid or provided, as the case may be, to the
complainant or any other person affected by such final order, or his
failure to state orally or in writing upon any payroll or receipt which
he is required to sign that the wages, salary or supplements received by
him is received under protest, or to indicate in any other way his
protest against the amount thereof, or that the amount so paid does not
constitute payment in full of the wages or salary due him for the period
covered by such payment, or that the supplements provided do not
constitute the full supplements due him, shall not be a bar to his right
to recover, in accordance with the provisions of subdivision eight, the
difference between the sum actually paid or provided, as the case may
be, and the amount which should have been paid or provided, as the case
may be, as determined by such final order.

8-b. Notwithstanding any inconsistent provision of this chapter or of
any other general, special or local law, ordinance, charter or
administrative code, an employee of a municipal corporation,
irrespective of the title of his position or employment, whose salary or
wage or supplement is fixed by reference to a prevailing rate of wage
determined or to a prevailing practice for supplements determination and
established by a final order in a proceeding instituted under this
section, shall not be barred from his right to recover, in accordance
with the terms of such fixation, the difference between the amount
actually paid to him and the amount which should have been paid to him
or provided, as the case may be, pursuant to such fixation, because of
the prior receipt by him without protest of the salary, wages or
supplements paid or provided to him, as the case may be; or because he
did not previously protest his prior failure to be provided with any
supplement whatsoever; or on account of his failure to state orally or
in writing upon any payroll or receipt which he is required to sign that
the salary or wages or supplements received by him is received under
protest, or on account of his failure to indicate his protest against
the amount or non-provision thereof or that the amount so paid or
provided does not constitute payment or provision, as the case may be,
in full of the salary, wages or supplement due him for the period
covered by such payment.

8-c. Interest at six percentum per annum shall begin to accrue sixty
days after a final determination made by a fiscal officer on the
difference between the prevailing wages so determined, and which should
have been paid to an employee of a municipal corporation, and the amount
actually received by him. Said accumulated interest shall be paid to the
employee when back pay based on the determination is paid to him.

8-d. Notwithstanding any inconsistent provision of this chapter or of
any other law, in a city of one million or more, where a majority of
laborers, workmen or mechanics in a particular civil service title are
members of an employee organization which has been certified or
recognized to represent them pursuant to the provisions of article
fourteen of the civil service law or a local law enacted thereunder, the
public employer and such employee organization shall in good faith
negotiate and enter into a written agreement with respect to the wages
and supplements of the laborers, workmen or mechanics in the title. If
the parties fail to achieve an agreement, only the employee organization
shall be authorized to file a single verified complaint pursuant to
subdivision seven herein, on behalf of the laborers, workmen or
mechanics so represented. Such employee organization shall be the sole
and exclusive representative of such laborers, workmen or mechanics at
any hearing pursuant to subdivision eight herein, and shall be the sole
complainant in the proceeding for all purposes therein, including review
pursuant to article seventy-eight of the civil practice law and rules.
Service by the fiscal officer on the employee organization shall be
sufficient notice to the laborers, workmen or mechanics so represented
for all purposes of subdivision eight herein, except that the issuance
and enforcement of subpoenas shall be regulated by the civil practice
law and rules. Any order, compromise, or settlement determining the
issues raised upon such a proceeding, which has not been taken up for
review by the employee organization, shall be binding upon the laborers,
workmen or mechanics represented by the employee organization. Nothing
herein shall be construed to limit the rights of any laborer, workman or
mechanic who has on file a verified complaint prior to the effective
date of this subdivision.

9. When a final determination has been rendered, any person that
wilfully refuses thereafter to pay the rate of wages or to provide the
supplements determined to be prevailing, or wilfully employs on such
public work, laborers, workmen or mechanics more than the hours per day
determined by said order until modified by order of the fiscal officer
or court and thereby violates the provisions of this section shall be
guilty of a misdemeanor and upon conviction thereof shall be punished,
in accordance with the penal law. A person who violates this subdivision
after having previously been convicted of violating this subdivision
within the past five years shall be guilty of a class E felony, and in
addition thereto the contract on which the violation has occurred shall
be forfeited; and no such person shall be entitled to receive any sum
nor shall any officer, agent or employee of the state or of a municipal
corporation pay the same or authorize its payment from the funds under
his charge or control to any such person for work done upon any
contract, on which the contractor has been convicted of second offense
in violation of the provisions of this section.