Bill Text: NY A02101 | 2019-2020 | General Assembly | Amended


Bill Title: Relates to additional information provided to employees on public work contracts, including supplements.

Spectrum: Strong Partisan Bill (Democrat 18-1)

Status: (Engrossed) 2019-06-20 - RETURNED TO ASSEMBLY [A02101 Detail]

Download: New_York-2019-A02101-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         2101--A

                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                    January 22, 2019
                                       ___________

        Introduced  by  M. of A. WOERNER, D'URSO, SAYEGH, ARROYO, STIRPE, SANTA-
          BARBARA, LUPARDO, RAMOS -- Multi-Sponsored by -- M. of A. DeSTEFANO --
          read once  and  referred  to  the  Committee  on  Labor  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee

        AN  ACT  to  amend  the labor law, in relation to additional information
          provided to employees on public work contracts

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1. Paragraph (e) of subdivision 3 of section 220 of the labor
     2  law, as amended by chapter 7 of the laws of 2008, is amended to read  as
     3  follows:
     4    (e)  The commissioner shall ensure that all supplements due under this
     5  article shall be paid to or on behalf of an employee.  (i)  The  commis-
     6  sioner  shall  require proof that the pension plan for which any supple-
     7  ment has been paid is qualified as a bona fide plan by the United States
     8  internal revenue service. Acceptable proof shall be shown by  submission
     9  of  a  determination letter issued by the United States internal revenue
    10  service. (ii) The commissioner shall  also  require  any  contractor  or
    11  subcontractor  who provides any supplement which is part of a fund, plan
    12  or program to furnish to the commissioner proof that the  supplement  is
    13  provided  through  a fund, plan or program and the amount contributed on
    14  the employees' behalf to such fund, plan or program.
    15    § 2. Subparagraphs (ii) and (iii) of paragraph a of subdivision 3-a of
    16  section 220 of the labor law, subparagraph (ii) as separately amended by
    17  chapters 7 and 63 of the laws of 2008 and subparagraph (iii) as  amended
    18  by chapter 8 of the laws of 2008, are amended to read as follows:
    19    (ii) The contractor and every sub-contractor on public works contracts
    20  shall  post  in  a  prominent and accessible place on the site where the
    21  work is performed a legible statement of all wage rates and  supplements
    22  as specified in the contract to be paid or provided, as the case may be,

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06045-03-9

        A. 2101--A                          2

     1  for  the  various classes of mechanics, workers, or laborers employed on
     2  the work. Such posted statement shall be written in  plain  English  and
     3  titled, in lettering no smaller than two inches in height and two inches
     4  in width, with the phrase "Prevailing Rate of Wages". Such posted state-
     5  ment  shall  be constructed of materials capable of withstanding adverse
     6  weather conditions. The contractor and every sub-contractor shall notify
     7  all laborers, workers or mechanics in their employ  in  writing  of  the
     8  prevailing rate of wage and supplements for their particular job classi-
     9  fication.  Such  notification shall be given to every laborer, worker or
    10  mechanic upon hire, on their first pay stub  and  with  every  pay  stub
    11  thereafter,  and  shall  set  forth  the  amounts paid per hour for each
    12  supplement provided for his or  her  particular  job  classification  in
    13  accordance  with  the  schedules determined by the fiscal officer.  Such
    14  notification shall be provided in English and in the language identified
    15  by such laborer, worker, or mechanic as his or her primary language.  At
    16  the beginning of performance of every public works  contract,  and  with
    17  the  first  paycheck  after  July first of each year, the contractor and
    18  every sub-contractor shall notify all laborers, workers,  and  mechanics
    19  in their employ in writing, in English and in the language identified by
    20  each  laborer,  worker,  and mechanic as his or her primary language, in
    21  accordance with such form as is prescribed by the fiscal officer, of the
    22  telephone number and address for the fiscal officer.  The  notice  shall
    23  also  inform  each  laborer,  worker, or mechanic of his or her right to
    24  contact the fiscal officer or some other representative if, at any  time
    25  while  working  for the public works contractor or sub-contractor, he or
    26  she does not receive the proper prevailing rate of wages or  supplements
    27  for  his or her particular job classification that he or she is entitled
    28  to receive under the contract. If after investigation the fiscal officer
    29  finds that a contractor or sub-contractor has  (1)  failed  to  post  or
    30  provide  any  notice  required  under this subdivision, including having
    31  failed to provide any such notice in  the  language  identified  by  any
    32  laborer,  worker, or mechanic as his or her primary language, (2) failed
    33  to set forth the prevailing wage or the breakdown of supplements on  the
    34  pay stub, (3) [wilfully] willfully posted the incorrect prevailing wage,
    35  or  (4)  [wilfully] willfully set forth the incorrect prevailing wage or
    36  the amounts paid per hour for each  supplement  on  the  pay  stub,  the
    37  fiscal  officer[,]  shall, by an order which shall describe particularly
    38  the nature of the alleged violation, assess the contractor  or  sub-con-
    39  tractor  a  civil  penalty of not more than fifty dollars upon the first
    40  finding of a violation, two hundred fifty dollars upon the second  find-
    41  ing  of  a  violation,  and  five  hundred  dollars  for each subsequent
    42  violation. In assessing the amount of the penalty,  the  fiscal  officer
    43  shall give due consideration to the size of the employer's business, the
    44  good faith of the employer, and the gravity of the violation.
    45    The  fiscal  officer  shall  prepare  templates  that  comply with the
    46  notification requirements of this subparagraph. Each such template shall
    47  be dual-language, including English and  one  additional  language.  The
    48  fiscal  officer  shall  determine,  in  his  or  her  discretion,  which
    49  languages to provide in addition to English, based on the  size  of  the
    50  New York state population that speaks each language and any other factor
    51  that the fiscal officer shall deem relevant. All such templates shall be
    52  posted  on the fiscal officer's website and made available for download-
    53  ing by contractors and subcontractors.  When  any  laborer,  worker,  or
    54  mechanic  identifies  his  or her primary language and a template is not
    55  made available by the fiscal officer in that language, the contractor or
    56  subcontractor shall comply with  this  subparagraph  by  providing  such

        A. 2101--A                          3

     1  laborer,  worker,  or mechanic an English-language notice or acknowledg-
     2  ment. A contractor or subcontractor shall not be penalized for errors or
     3  omissions in the non-English portions of  any  notice  provided  by  the
     4  fiscal  officer.  The  fiscal  officer shall have discretion to waive or
     5  alter the notification requirements of this subparagraph  for  temporary
     6  help firms as defined in section nine hundred sixteen of this chapter.
     7    (iii)  The  contractor  and  every  sub-contractor shall keep original
     8  payrolls or transcripts thereof, subscribed and sworn to or affirmed  by
     9  him  or  her  as  true under the penalties of perjury, setting forth the
    10  names and addresses and showing for each worker,  laborer,  or  mechanic
    11  the hours and days worked, the occupations worked, the hourly wage rates
    12  paid  and the supplements paid or provided. Such payrolls or transcripts
    13  thereof shall also set forth the amounts paid per hour for each  supple-
    14  ment  provided in accordance with the schedules determined by the fiscal
    15  officer. Where the contractor or  sub-contractor  maintains  no  regular
    16  place of business in New York state and where the amount of the contract
    17  is in excess of twenty-five thousand dollars such payrolls shall be kept
    18  on the site of the work.  All other contractors or sub-contractors shall
    19  produce  within  five days on the site of the work and upon formal order
    20  of the  commissioner  or  his  or  her  designated  representative  such
    21  original  payrolls  or  transcripts  thereof, subscribed and sworn to or
    22  affirmed by him or her as true under the penalties of perjury, as may be
    23  deemed necessary to adequately enforce the provisions of  this  article.
    24  Every  contractor, and sub-contractor, shall submit to the department of
    25  jurisdiction within thirty days after issuance of its first payroll, and
    26  every thirty days thereafter,  a  transcript  of  the  original  payroll
    27  record, as provided by this article, subscribed and sworn to or affirmed
    28  as  true  under  the penalties of perjury.  Every contractor and subcon-
    29  tractor shall submit to the commissioner, and  to  the  fiscal  officer,
    30  when  the  fiscal officer is a city comptroller or other analogous offi-
    31  cer, within thirty days of its first payroll, and annually thereafter, a
    32  transcript of the original payroll record, subscribed and  sworn  to  or
    33  affirmed  as  true under the penalties of perjury, including, documenta-
    34  tion of each fund, plan, or program for which any  supplement  has  been
    35  paid  or  provided. Such transcripts and additional information shall be
    36  provided on a  form  promulgated  by  the  department.  Any  person  who
    37  [wilfully] willfully fails to file such payroll records with the depart-
    38  ment of jurisdiction, commissioner, or the fiscal officer shall be guil-
    39  ty of a class E felony. In addition, any person who [wilfully] willfully
    40  fails  to  file  such  payroll records within the time specified in this
    41  subparagraph shall be subject to a civil penalty of up to  one  thousand
    42  dollars per day.
    43    §  3.  Subdivision  6  of  section 220 of the labor law, as amended by
    44  chapter 230 of the laws of 1984, is amended to read as follows:
    45    6. The fiscal officer[,] may, and on the written request of any inter-
    46  ested person shall, require any person or  corporation  performing  such
    47  public  work  to  file with such fiscal officer schedules of the supple-
    48  ments to be provided and wages to be paid to such laborers,  workmen  or
    49  mechanics,  including  information  regarding the amounts to be paid per
    50  hour for each supplement provided for each  particular  job  classifica-
    51  tion.  The  fiscal officer may, and on the written request of any inter-
    52  ested party shall, require and furnish proof of any supplements provided
    53  or amounts paid to or on behalf of laborers, workers,  or  mechanics  in
    54  satisfaction  of  the  obligation  to  provide  supplements  under  this
    55  section. Any such person or corporation shall, within ten days after the
    56  receipt of written notice of such  requirement,  file  with  the  fiscal

        A. 2101--A                          4

     1  officer such schedules of wages and supplements. An employer may contest
     2  a determination by the fiscal officer under paragraphs a and c of subdi-
     3  vision  five  of  this  section.  The  employer must allege and prove by
     4  competent  evidence,  that the actual percentage of workers, laborers or
     5  mechanics is below the required thirty per centum and during the penden-
     6  cy of any such contest and until final determination thereof,  the  work
     7  in question shall proceed under the rate established by the fiscal offi-
     8  cer.
     9    § 4. This act shall take effect on the one hundred eightieth day after
    10  it shall have become a law and shall only apply to public work contracts
    11  entered into on or after such effective date.
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