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This entry was published on 2021-07-30
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§ 230. Definitions. As used in this article:

1. "Building service employee" or "employee" means any person
performing work in connection with the care or maintenance of an
existing building, or in connection with the transportation of office
furniture or equipment to or from such building, or in connection with
the transportation and delivery of fossil fuel to such building, for a
contractor under a contract with a public agency which is in excess of
one thousand five hundred dollars and the principal purpose of which is
to furnish services through the use of building service employees.

"Building service employee" or "employee" includes, but is not
limited, to, watchman, guard, doorman, building cleaner, porter,
handyman, janitor, gardener, groundskeeper, stationary fireman, elevator
operator and starter, window cleaner, and occupations relating to the
collection of garbage or refuse, and to the transportation of office
furniture and equipment, and to the transportation and delivery of
fossil fuel but does not include clerical, sales, professional,
technician and related occupations.

"Building service employee" or "employee" also does not include any
employee to whom the provisions of articles eight and eight-a of this
chapter are applicable.

2. "Building service work" or "service work" means work performed by a
building service employee, but does not include work performed for a
contractor under a contract for the furnishing of services by radio,
telephone, telegraph or cable companies; and any contract for public
utility services, including electric light and power, water, steam and

3. "Public agency" means the state, any of its political subdivisions,
a public benefit corporation, a public authority or commission or
special purpose district board appointed pursuant to law, and a board of

4. "Contractor" means any employer who employs employees to perform
building service work under a contract with a public agency and shall
include any of the contractor's subcontractors.

5. "Wage" includes: (a) basic hourly cash rate of pay; and (b)
supplements. The term "supplements" means 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

6. "Prevailing wage" means the wage determined by the fiscal officer
to be prevailing for the various classes of building service employees
in the locality. In no event shall the basic hourly cash rate of pay be
less than the statutory minimum wage established by article nineteen of
this chapter, or, in a city with a local law requiring a higher minimum
wage on city contract work, less than the minimum wage specified in such
local law.

7. "Locality" means the state, 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
locality for the prevailing basic hourly cash rate of pay and the
locality for prevailing supplements.

8. "Fiscal officer" means the industrial commissioner, except for
building service work performed by or on behalf of a city, in which case
"fiscal officer" means the comptroller or other analogous officer of
such city.

9. "Fossil fuel" shall mean coal, petroleum products and fuel gases.
"Coal" shall include bituminous coal, anthracite coal and lignite. "Fuel
gases" shall include but not be limited to methane, natural gas,
liquefied natural gas and manufactured fuel gases. "Petroleum products"
shall include all products refined or rerefined from synthetic or crude
oil or oil extracted from other sources, including natural gas liquids.
Provided that nothing in this subdivision shall affect the exclusion for
public utility services set forth in subdivision two of this section.

10. "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.

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

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

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

14. "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.