Bill Text: NY A08142 | 2019-2020 | General Assembly | Amended


Bill Title: Relates to minimum wage rates for covered airport workers.

Spectrum: Partisan Bill (Democrat 63-0)

Status: (Introduced) 2020-07-22 - substituted by s6266d [A08142 Detail]

Download: New_York-2019-A08142-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         8142--E

                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                      June 4, 2019
                                       ___________

        Introduced  by  M. of A. HYNDMAN, CARROLL, TAYLOR, REYES, GRIFFIN, GOTT-
          FRIED, PAULIN, DINOWITZ, NIOU, BLAKE, WEPRIN, DE LA ROSA, SIMON, SIMO-
          TAS, D. ROSENTHAL, AUBRY, PERRY, BARNWELL, MOSLEY,  ORTIZ,  SEAWRIGHT,
          JEAN-PIERRE,  WALKER, QUART, DenDEKKER, RYAN, NOLAN, BENEDETTO, SOLAG-
          ES, BRAUNSTEIN, ABBATE,  KIM,  JACOBSON,  HEVESI,  FERNANDEZ,  COLTON,
          ARROYO,  FRONTUS,  L. ROSENTHAL,  WILLIAMS, EPSTEIN, BUCHWALD, JOYNER,
          O'DONNELL,  PHEFFER AMATO,  M. G. MILLER,  WRIGHT,  RIVERA,  PICHARDO,
          SAYEGH,  CRUZ,  RAMOS, DICKENS, D'URSO, BICHOTTE -- Multi-Sponsored by
          -- M. of A. LENTOL -- read once and referred to the Committee on Labor
          -- committee discharged, bill amended, ordered  reprinted  as  amended
          and  recommitted to said committee -- again reported from said commit-
          tee with amendments, ordered reprinted as amended and  recommitted  to
          said  committee -- recommitted to the Committee on Labor in accordance
          with Assembly Rule 3, sec. 2 -- committee  discharged,  bill  amended,
          ordered  reprinted  as  amended  and  recommitted to said committee --
          again reported from said committee with amendments, ordered  reprinted
          as  amended  and  recommitted to said committee -- again reported from
          said committee with  amendments,  ordered  reprinted  as  amended  and
          recommitted to said committee

        AN  ACT  to  amend  the  labor law, in relation to enacting the "healthy
          terminals act"

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

     1    Section  1.  This  act shall be known and may be cited as the "healthy
     2  terminals act".
     3    § 2. The article heading of article 9 of the labor law,  as  added  by
     4  chapter 777 of the laws of 1971, is amended to read as follows:
     5    PREVAILING  WAGE  FOR  BUILDING  SERVICE EMPLOYEES AND COVERED AIRPORT
     6  WORKERS
     7    § 3. Subdivisions 1, 4 and 8 of section 230 of the labor law, subdivi-
     8  sion 1 as amended by chapter 542 of the laws of 1984, subdivision  4  as

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13101-11-0

        A. 8142--E                          2

     1  amended  by  chapter 678 of the laws of 2007, and subdivision 8 as added
     2  by chapter 777 of the laws of 1971, are amended and  four  new  subdivi-
     3  sions 1-a, 15, 16 and 17 are added to read as follows:
     4    1.  "Building service employee" or "service employee" means any person
     5  performing work in connection with the care or maintenance of an  exist-
     6  ing  building, or in connection with the transportation of office furni-
     7  ture or equipment to or from such building, or in  connection  with  the
     8  transportation  and  delivery  of  fossil  fuel  to such building, for a
     9  contractor under a contract with a public agency which is in  excess  of
    10  one  thousand five hundred dollars and the principal purpose of which is
    11  to furnish services through the use of building service employees.
    12    "Building service employee" or "service employee" includes, but is not
    13  limited, to, watchman, guard, doorman, building cleaner, porter,  handy-
    14  man,  janitor,  gardener,  groundskeeper,  stationary  fireman, elevator
    15  operator and starter, window cleaner, and occupations  relating  to  the
    16  collection  of  garbage  or  refuse, and to the transportation of office
    17  furniture and equipment, and  to  the  transportation  and  delivery  of
    18  fossil  fuel but does not include clerical, sales, professional, techni-
    19  cian and related occupations.
    20    "Building service  employee"  or  "service  employee"  also  does  not
    21  include  any  employee  to  whom  the  provisions  of articles eight and
    22  eight-a of this chapter are applicable.
    23    1-a. "Employee" means a building service employee or a covered airport
    24  worker.
    25    4. "Contractor" means any employer who employs  employees  to  perform
    26  building  service  work  under a contract with a public agency and shall
    27  include any of the contractor's subcontractors. "Contractor" shall  also
    28  include  any  covered  airport  employer as such term is defined in this
    29  section.
    30    8. "Fiscal officer" means  the  industrial  commissioner,  except  for
    31  building  service  work  performed  by  or  on behalf of a city, or work
    32  involving the employment of covered airport workers at a covered airport
    33  location located in a city with a population of one million or more,  in
    34  which  case  "fiscal  officer"  means the comptroller or other analogous
    35  officer of such city.
    36    15. "Covered airport location" means any airport operating  under  the
    37  jurisdiction of the Port Authority of New York and New Jersey within the
    38  state.
    39    16.  "Covered  airport  worker" means any person employed by a covered
    40  airport employer to perform work at a covered airport location  provided
    41  at  least  one-half  of  the  employee's  time  during  any  workweek is
    42  performed at a covered airport location. "Covered airport worker"  shall
    43  not  include  any  person  employed  in an executive, administrative, or
    44  professional capacity as defined  in  29  U.S.C.  213  (a)(1).  "Covered
    45  airport  worker" does not include any employee to whom the provisions of
    46  article eight or eight-A of this chapter are applicable.
    47    17. "Covered airport employer" means any person, corporation,  limited
    48  liability  company,  or association employing any covered airport worker
    49  in an  occupation,  industry,  trade,  business  or  service.  The  term
    50  "covered airport employer" shall not include a public agency.
    51    § 4. The labor law is amended by adding a new section 231-a to read as
    52  follows:
    53    § 231-a. Prevailing wage for covered airport workers. 1. Notwithstand-
    54  ing  any other provision of law, rule, or regulation to the contrary, as
    55  used in this section, the term "wage" shall mean: (a) basic hourly  cash
    56  rate  of  pay;  and  (b)  supplements. The term "supplements" shall mean

        A. 8142--E                          3

     1  fringe benefits including medical or hospital care, pensions on  retire-
     2  ment or death, compensation for injuries or illness resulting from occu-
     3  pational  activity,  or insurance to provide any of the foregoing, unem-
     4  ployment  benefits,  life  insurance, disability and sickness insurance,
     5  accident insurance, and other bona fide fringe  benefits  not  otherwise
     6  required  by  federal,  state  or  local law to be provided by a covered
     7  airport employer.
     8    2. Not earlier than September first, two  thousand  twenty-one,  every
     9  covered airport employer shall pay a covered airport worker working at a
    10  covered  airport location a wage of not less than the prevailing wage in
    11  the locality for the craft, trade, or occupation of such covered airport
    12  worker.
    13    3. The obligation of a covered  airport  employer  to  pay  prevailing
    14  supplements  may be discharged by furnishing any equivalent combinations
    15  of fringe benefits or by making equivalent or differential  payments  in
    16  cash under rules and regulations established by the fiscal officer.
    17    4. Notwithstanding any other provisions of law, rule, or regulation to
    18  the  contrary,  for the purposes of this section "prevailing wage" shall
    19  mean the wage determined by the fiscal officer to be prevailing for  the
    20  various  classes  of  covered airport workers in the locality; provided,
    21  however, that in no event shall the  prevailing  wage  applicable  to  a
    22  covered  airport worker on and after September first, two thousand twen-
    23  ty-one and every year thereafter be less than  the  following:  (a)  any
    24  otherwise  applicable  minimum wage rate established through a policy of
    25  the Port Authority of New York and New Jersey; and
    26    (b) an amount of wages or supplements equal to the rate for health and
    27  welfare for all occupations, designated by the fiscal officer  based  on
    28  the  determinations  made by the federal department of labor pursuant to
    29  the McNamara-O'Hara Service Contract Act of 1965 41 U.S.C.  6701 et  seq
    30  for  the  geographic  region  in  which  the covered airport location is
    31  located and in effect on the date of the designation by the fiscal offi-
    32  cer.
    33    5. On or before September first,  two  thousand  twenty-one  and  each
    34  subsequent  September first, the fiscal officer shall designate the wage
    35  and supplemental benefits rate required under this  section  by  classi-
    36  fication and region in which each covered airport is located. The fiscal
    37  officer shall publicly post such designated wage rate.
    38    6.  Nothing  in  this  article  shall  be deemed to alter or limit any
    39  employer's obligation to pay any otherwise  applicable  prevailing  wage
    40  under any other provision of this article or article eight of this chap-
    41  ter.
    42    §  5. The section heading of section 231 of the labor law, as added by
    43  chapter 777 of the laws of 1971, is amended to read as follows:
    44    Prevailing wage for building service employees.
    45    § 6. Subdivisions 1 and 2 of section 233 of the labor law, as added by
    46  chapter 777 of the laws of 1971, are amended to read as follows:
    47    1. In all cases where service work is being performed  pursuant  to  a
    48  contract  therefor,  or  where  work  is  being  performed pursuant to a
    49  contract involving  the  employment  of  covered  airport  workers,  the
    50  contractor   shall   keep  original  payrolls  or  transcripts  thereof,
    51  subscribed and confirmed by him as true,  under  penalties  of  perjury,
    52  showing  the hours and days worked by each employee, the craft, trade or
    53  occupation at which he was employed, and the wages paid.
    54    2. Where the wages paid include sums which are not  paid  directly  to
    55  the  [workmen]  employees weekly and which are expended for supplements,
    56  the records required to be maintained shall include  a  record  of  such

        A. 8142--E                          4

     1  hourly  payment  on  behalf  of such employees, the supplement for which
     2  such payment has been made, and the name and address of  the  person  to
     3  whom such payment has been made. In all such cases, the contractor shall
     4  keep  a  true  and  inscribed  copy  of  the  agreement under which such
     5  payments are made, a record of all net payments made thereunder,  and  a
     6  list of all persons for whom such payments are made.
     7    §    7.  Paragraphs (a) and (c) of subdivision 1 of section 234 of the
     8  labor law, as added by chapter 777 of the laws of 1971, are amended  and
     9  a new paragraph (e-1) is added to read as follows:
    10    (a)  to  cause  an  investigation  to  be  made to determine the wages
    11  prevailing in  any  locality  in  all  crafts,  trades  and  occupations
    12  involved  in  service  work  or work involving the employment of covered
    13  airport workers; in making such investigation, the  fiscal  officer  may
    14  utilize wage and fringe benefit data from various sources including, but
    15  not  limited  to,  data  and  determinations  of federal, state or other
    16  governmental agencies;
    17    (c) to examine the books, documents  and  records  pertaining  to  the
    18  wages paid to, and the hours of work performed by, [service] employees;
    19    (e-1)  to  make  a  classification  by craft, trade or other generally
    20  recognized occupational category of the covered airport workers  and  to
    21  determine  whether such work has been performed by the employees in such
    22  classification;
    23    § 8. Subdivisions 1 and 3 of section 235 of the labor law, as added by
    24  chapter 777 of the laws of 1971, are amended to read as follows:
    25    1. Whenever the fiscal officer has reason to believe that [a  service]
    26  an  employee  has  been  paid  less  than  the  wages  stipulated in the
    27  contract, or if such contract has no wage schedule attached thereto  and
    28  the  fiscal  officer  has reason to believe that [a service] an employee
    29  has been paid less than the wages prevailing for  his  craft,  trade  or
    30  occupation,  the  fiscal  officer  may,  and  upon  receipt of a written
    31  complaint from an employee employed thereon,  shall  conduct  a  special
    32  investigation to determine the facts relating thereto.
    33    3.  If,  despite the requirements of law, the contract for the service
    34  work or work involving the employment of  covered  airport  workers  has
    35  been  awarded  without  the  annexation thereto of the schedule of wages
    36  provided for in this article, the fiscal officer shall determine in  the
    37  proceeding  before  him  the  wages  prevailing at the time the work was
    38  performed for  the  crafts,  trades  or  occupations  of  the  employees
    39  involved.
    40    § 9. Section 236 of the labor law, as added by chapter 777 of the laws
    41  of 1971, is amended to read as follows:
    42    §  236.  Failure  to protest underpayments. Notwithstanding any incon-
    43  sistent provision of this chapter or of any other  general,  special  or
    44  local  law,  ordinance,  charter  or administrative code, [a service] an
    45  employee shall not be barred from his right to  recover  the  difference
    46  between the amount actually paid to him and the amount which should have
    47  been  paid  to  him pursuant to an order entered under the provisions of
    48  this article because of the prior receipt  by  him  without  protest  of
    49  wages  paid  or  on account of his failure to state orally or in writing
    50  upon any payroll or receipt which he is required to sign that the  wages
    51  received by him are received under protest, or on account of his failure
    52  to  indicate  his protest against the amount, or that the amount so paid
    53  does not constitute payment in full of wages  due  him  for  the  period
    54  covered by such payment.
    55    § 10. Subdivisions 1 and 4 of section 237 of the labor law, as amended
    56  by chapter 698 of the laws of 1988, are amended to read as follows:

        A. 8142--E                          5

     1    1.  Subcontractors engaged for service work, or for work involving the
     2  employment of covered airport workers, by a contractor  or  its  subcon-
     3  tractor  shall, upon receipt from the contractor or its subcontractor of
     4  the schedule of wages and supplements specified in the contract, provide
     5  to  the  contractor  or its subcontractor a verified statement attesting
     6  that the subcontractor has received and reviewed such schedule of  wages
     7  and  supplements,  and agrees that it will pay the applicable prevailing
     8  wages and will pay or provide the supplements  specified  therein.  Such
     9  verified statement shall be filed in the manner described in subdivision
    10  three  of this section, provided, however, that in the case of contracts
    11  for work involving the employment of covered airport workers, such veri-
    12  fied statement shall be subject to inspection upon request of the fiscal
    13  officer.  It shall be a violation of this article for any contractor  or
    14  its subcontractor to fail to provide for its subcontractor a copy of the
    15  schedule of wages and supplements specified in the contract.
    16    4.  If  any interested person shall have previously filed a protest in
    17  writing objecting to the payment to any contractor or  subcontractor  to
    18  the  extent  of  the  amount  or amounts due or to become due to him for
    19  daily or weekly wages for labor performed on the  work  for  which  such
    20  contract  was  entered into, or if for any other reason it may be deemed
    21  advisable, the comptroller of the state or the financial officer of  the
    22  public  agency  or  other officer or person charged with the custody and
    23  disbursement of the state or corporate funds applicable to the  contract
    24  for  such  work,  may  deduct  from  the  whole amount of any payment on
    25  account thereof the sum or sums admitted by any  contractor  or  subcon-
    26  tractor  in such statement or statements as filed to be due and owing by
    27  him or her on account of labor performed  on  such  work  before  making
    28  payment  of the amount certified for payment in any estimate or voucher,
    29  and may withhold the amount so deducted for the benefit of the [service]
    30  employees whose wages are unpaid as shown  by  the  verified  statements
    31  filed  by  any  contractor or subcontractor, and may pay directly to any
    32  person the amount or amounts shown by the statements filed as  hereinbe-
    33  fore  required  to  be  due  to him or her or his or her duly authorized
    34  collective bargaining labor organization receiving such payment  to  the
    35  extent of the amount thereof.
    36    § 11. Subdivision 2 of section 238 of the labor law, as added by chap-
    37  ter 777 of the laws of 1971, is amended to read as follows:
    38    2.  When  a contract for service work or work involving the employment
    39  of covered airport workers contains as part thereof a schedule of  wages
    40  as provided for in this article, any contractor who, after entering into
    41  such contract, and any subcontractor of such contractor who fails to pay
    42  to  any [service] employee the wages stipulated in such wage schedule is
    43  guilty of a misdemeanor and upon conviction  shall  be  punished  for  a
    44  first  offense  by a fine of five hundred dollars or by imprisonment for
    45  not more than thirty days or by both fine and imprisonment; for a second
    46  offense by a fine of one thousand dollars, and in addition  thereto  the
    47  contract  on which the violation has occurred shall be forfeited; and no
    48  such contractor shall be entitled to receive  any  sum,  nor  shall  any
    49  officer, agent or employee of the contracting public agency pay any such
    50  sum  or authorize its payment from the funds under his charge or control
    51  to such contractor for work done upon the contract on which the contrac-
    52  tor has been convicted of a  second  offense.    If  the  contractor  or
    53  subcontractor  is  a  corporation,  any  officer of such corporation who
    54  knowingly permits the corporation to fail to  make  such  payment  shall
    55  also  be  guilty  of  a misdemeanor and the criminal and civil penalties
    56  herein shall attach to such officer upon conviction.

        A. 8142--E                          6

     1    § 12. Section 239 of the labor law, as added by  chapter  777  of  the
     2  laws  of 1971, subdivisions 1, 2, and 3 as amended by chapter 770 of the
     3  laws of 1986, is amended to read as follows:
     4    §  239.  Provisions in contracts prohibiting discrimination on account
     5  of race, creed, color, national origin, age or sex.  Every contract  for
     6  service work or work involving the employment of covered airport workers
     7  shall contain provisions by which the contractor agrees:
     8    (1)  that in the hiring of employees for the performance of work under
     9  the contract or any subcontract thereunder within the territorial limits
    10  of this state, no contractor, subcontractor, nor any  person  acting  on
    11  behalf  of  such  contractor  or subcontractor, shall by reason of race,
    12  creed, color, national origin,  age,  sex  or  disability,  discriminate
    13  against any citizen of the state of New York who is qualified and avail-
    14  able to perform the work to which the employment relates;
    15    (2)  that  no  contractor, subcontractor, nor any person on his behalf
    16  shall, in any manner, discriminate against or  intimidate  any  employee
    17  hired for the performance of work under the contract on account of race,
    18  creed, color, national origin, age, sex or disability;
    19    (3) that there may be deducted from the amount payable to the contrac-
    20  tor  by  the public agency under the contract for service work a penalty
    21  of fifty dollars for each person for each day during which  such  person
    22  was  discriminated against or intimidated in violation of the provisions
    23  of the contract;
    24    (4) that the contract for service work may be cancelled or  terminated
    25  by the public agency, and all moneys due or to become due thereunder may
    26  be  forfeited  for  a second or any subsequent violation of the terms or
    27  conditions of this section of the contract.
    28    § 13. Section 239-a of the labor law, as added by chapter 777  of  the
    29  laws of 1971, is amended to read as follows:
    30    §  239-a. Enforcement of article. 1. If the fiscal officer, as defined
    31  herein, finds that any contractor on service work fails to  comply  with
    32  or  evades  the provisions of this article, he shall present evidence of
    33  such noncompliance or evasion to the public agency having charge of such
    34  work for enforcement.  Where such evidence indicates a noncompliance  or
    35  evasion  on the part of a subcontractor, the contractor shall be respon-
    36  sible for such noncompliance or evasion.  It shall be the  duty  of  the
    37  public  agency  in charge of such service work to enforce the provisions
    38  of this article.
    39    2. If the fiscal officer, as defined herein, finds that any contractor
    40  on work involving the employment of covered  airport  workers  fails  to
    41  comply  with  or  evades the provisions of this article, it shall be the
    42  duty of the fiscal officer to enforce the provisions of this article.
    43    § 14. If any provision of this article or the application  thereof  to
    44  any  person,  employer,  occupation or circumstance is held invalid, the
    45  remainder of the article and the application of such provision to  other
    46  persons,  employees, occupations, or circumstances shall not be affected
    47  thereby.
    48    § 15. This act shall take effect on January 1, 2021.  Effective  imme-
    49  diately, the addition, amendment and/or repeal of any rule or regulation
    50  necessary  for  the implementation of this act on its effective date are
    51  authorized to be made and completed on or before such effective date.
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