Bill Text: NY A08418 | 2019-2020 | General Assembly | Introduced


Bill Title: Relates to prevailing wage requirements, stop-work orders and annual reports by apprenticeship programs.

Spectrum: Strong Partisan Bill (Democrat 12-1)

Status: (Introduced) 2019-06-16 - referred to ways and means [A08418 Detail]

Download: New_York-2019-A08418-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          8418

                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                      June 16, 2019
                                       ___________

        Introduced  by M. of A. BRONSON -- read once and referred to the Commit-
          tee on Ways and Means

        AN ACT to amend the labor law, in relation to prevailing  wage  require-
          ments, stop-work orders and annual reports by apprenticeship programs

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

     1    Section 1. The labor law is amended by adding a new section  224-a  to
     2  read as follows:
     3    §  224-a.  Prevailing  wage  requirements  applicable  to construction
     4  projects performed under private contract.
     5    1. Subject to the provisions of this section, all  "covered  projects"
     6  as  defined in this section shall be subject to prevailing wage require-
     7  ments in accordance with section two hundred twenty of this  article.  A
     8  "covered project" shall mean any of the following:
     9    a.  Construction work performed under private contract on property, or
    10  a portion of the property, when all of the following conditions exist:
    11    (i) The construction contract is between private parties;
    12    (ii) The property is privately owned, and the property, or portion  of
    13  the  property  is  leased or will be leased to any public entity, and at
    14  least one of the following conditions exist:
    15    (1) The public entity entered into or bargained for the  lease  agree-
    16  ment prior to the construction contract; or
    17    (2)  The construction work is performed according to plans, specifica-
    18  tions, or criteria furnished by the public entity, and the lease  agree-
    19  ment  between  the  lessor and public entity, as lessee, is entered into
    20  during, or upon completion of, the construction work;
    21    b. Construction work performed on property owned by a public entity in
    22  whole or in part or will be owned or maintained by a  public  entity  in
    23  whole or in part upon completion of the project;
    24    c.  Construction  work  performed under private contract which is paid
    25  for in whole or in part out of public funds as defined in this  section;
    26  or
    27    d.  Construction  work  performed under private contract which is paid
    28  for in whole or in part out of public funds, and which is deemed to  not

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04725-10-9

        A. 8418                             2

     1  be  a  covered project pursuant to subdivision five of this section, but
     2  the amount of all such public funds, when aggregated, is at least thirty
     3  percent of the total project costs.
     4    2.  For purposes of this section, "paid for in whole or in part out of
     5  public funds" shall mean any of the following:
     6    a. The payment of money or the  equivalent  of  money,  including  the
     7  issuance of bonds or grants, by a public entity, or a third party acting
     8  on behalf of and for the benefit of the public entity, directly to or on
     9  behalf of the contractor, subcontractor, developer or owner;
    10    b. Transfer by a public entity of an asset of value for less than fair
    11  market value;
    12    c.  Fees,  costs,  rents, loans, insurance, tax credits, including tax
    13  abatements, tax exemptions, or any other financial obligation that would
    14  normally be required in the execution of the  project,  that  are  paid,
    15  charged  at less than fair market value, reduced, waived, or forgiven by
    16  the state or public entity;
    17    d. Money loaned by the public entity that is to be repaid on a contin-
    18  gent basis; or
    19    e. Credits that are applied by the  public  entity  against  repayment
    20  obligations to the public entity.
    21    3.  For purposes of this section, "paid for in whole or in part out of
    22  public funds" shall not include:
    23    a. Benefits under section four hundred twenty-one-a of the real  prop-
    24  erty tax law; or
    25    b.  Funds otherwise provided for in this section that are not directly
    26  provided for in order to primarily promote, incentivize, or ensure  that
    27  construction work is performed.
    28    4.  For  purposes  of this section "covered project" shall not include
    29  any of the following:
    30    a. Construction work on one or two family dwellings where the property
    31  is the owner's primary residence, construction work performed on proper-
    32  ty where the owner of the property  owns  no  more  than  four  dwelling
    33  units, or construction work performed in a city with a population of one
    34  million or more that contains seven or fewer dwelling units;
    35    b.  Construction work performed under a contract with a not-for-profit
    36  as defined in section one hundred two of the not-for-profit  corporation
    37  law  where  the  not-for-profit  has gross annual revenue less than five
    38  million dollars;
    39    c. Construction work performed on  a  multiple  dwelling  or  multiple
    40  residence  that  is  wholly  privately  owned  where no less than thirty
    41  percent of the residential units are subject to a  regulatory  agreement
    42  with  a local, state, or federal governmental entity; provided, however,
    43  that the period of affordability for a residential unit deemed  afforda-
    44  ble  under  the  provisions  of this paragraph shall be for no less than
    45  thirty years from the date of construction; or
    46    d. Construction work performed under a pre-hire collective  bargaining
    47  agreement  between  an  owner or contractor and a bona fide building and
    48  construction trade labor organization which has  established  itself  as
    49  the  collective  bargaining  representative  for  all  persons  who will
    50  perform work on such a project, and which provides that only contractors
    51  and subcontractors who sign a pre-negotiated agreement  with  the  labor
    52  organization can perform work on such a project.
    53    5.  For  purposes  of this section, a "covered project" shall also not
    54  include any of the following:
    55    a. Construction work performed pursuant to an agreement with an indus-
    56  trial development agency, a  local  development  corporation,  or  other

        A. 8418                             3

     1  similar  local entity where the net benefit of the public funds received
     2  is less than the threshold set by the department as provided in subdivi-
     3  sion thirteen of this section;
     4    b.  Construction  work  performed  on  a project certified under title
     5  fourteen of article twenty-seven of the environmental conservation  law,
     6  where the total amount of such public funds over the life of the project
     7  is  less than seven million dollars in the counties of Bronx, Kings, New
     8  York, Queens, and Richmond; less than three million dollars in the coun-
     9  ties of Nassau, Suffolk  and  Westchester;  or  less  than  one  million
    10  dollars in the rest of the state;
    11    c.  Construction  work performed on a project where the net benefit of
    12  public funds over the life of the project is  less  than  three  million
    13  dollars in the counties of Bronx, Kings, New York, Queens, and Richmond;
    14  less  than  one million five hundred thousand dollars in the counties of
    15  Nassau, Suffolk and Westchester; or  less  than  five  hundred  thousand
    16  dollars in the rest of the state;
    17    d. Construction work performed for the purposes of installation, reno-
    18  vation, or repair of a community distributed generation project. For the
    19  purposes  of  this  section  a  community distributed generation project
    20  shall mean a project to construct, maintain, alter, or otherwise operate
    21  a photovoltaic system with a rated capacity of not more than five  mega-
    22  watts  alternating  current that is connected to the electric system and
    23  operated in conjunction with an electric corporation's transmission  and
    24  distribution  facilities,  for  which  participating  electric customers
    25  receive a bill credit for the electricity generated in proportion to the
    26  size of their interest in the facility, with at least sixty  percent  of
    27  the facility's production allocated to participating customers in incre-
    28  ments  of  twenty-five  kilowatts  or less, provided that such a project
    29  receives no more than seven million five  hundred  thousand  dollars  in
    30  public funds;
    31    e.  Construction  work performed pursuant to financing provided by tax
    32  exempt bonds or notes issued by a public entity for the benefit  of  any
    33  private,  not-for-profit college chartered by the regents of the univer-
    34  sity of the state of New York or a  private,  not-for-profit  university
    35  chartered  by  the  regents  of the university of the state of New York,
    36  including bonds or notes issued by  an  industrial  development  agency,
    37  local  development  corporation,  or  other  similar local entity unless
    38  otherwise provided by law. However, nothing in this paragraph  shall  be
    39  deemed to exclude construction work that is paid for in whole or in part
    40  out of public funds other than those excluded by this paragraph;
    41    f.  Construction  work  performed  under  private contract pursuant to
    42  financing provided by tax exempt bonds or notes issued by a public enti-
    43  ty for the benefit of a hospital, nursing home,  or  residential  health
    44  care  facility  as such terms are defined in article twenty-eight of the
    45  public health law or for the benefit of a facility or institution certi-
    46  fied under article thirty-one of the  mental  hygiene  law,  tax  exempt
    47  bonds  or  notes issued by a public entity for the benefit of a not-for-
    48  profit corporation as defined in section one hundred two of the not-for-
    49  profit corporation law for purposes of providing assisted  living,  home
    50  care  or  hospice services licensed or certified under the public health
    51  law or social services law or services that are  licensed  or  certified
    52  under  the  mental  hygiene  law,  including bonds or notes issued by an
    53  industrial development agency, local development corporation,  or  other
    54  similar  local  entity unless otherwise provided by law. Nothing in this
    55  paragraph shall be deemed to exclude construction work that is paid  for

        A. 8418                             4

     1  in  whole  or  in  part out of public funds other than those excluded by
     2  this paragraph;
     3    g.  Construction  work  performed on: (i) an owner-occupied "qualified
     4  historic home" pursuant to subsection (pp) of section six hundred six of
     5  the tax  law;  or  (ii)  a  certified  historic  structure  pursuant  to
     6  subsection  (oo) of section six hundred six of the tax law and the total
     7  amount of such public funds over the life of the project are no  greater
     8  than five million dollars; or
     9    h.  Construction  work  performed on any portion of an existing or new
    10  building in which property is leased by a public entity, or construction
    11  work performed on an existing building held in  a  condominium  form  of
    12  ownership  or  by  a  cooperative corporation in which the public entity
    13  possesses shares or an ownership interest, provided that any portion  of
    14  the  property  that  is  not  leased by a public entity or not held in a
    15  condominium form of ownership or by a cooperative corporation in which a
    16  public entity possesses shares or an ownership  interest  shall  not  be
    17  captured   under  this  subdivision  unless  otherwise  subject  to  the
    18  provisions to this section.
    19    6. For purposes of this section, "public entity"  shall  include,  but
    20  shall  not  be limited to, the state, a local development corporation as
    21  defined in subdivision eight of section  eighteen  hundred  one  of  the
    22  public  authorities  law  or section fourteen hundred eleven of the not-
    23  for-profit corporation law, or other similar local and regional economic
    24  development organizations, a municipal corporation as defined in section
    25  one hundred nineteen-n of the general municipal law, industrial develop-
    26  ment agencies formed pursuant  to  article  eighteen-A  of  the  general
    27  municipal  law  or industrial development authorities formed pursuant to
    28  article eight of the public authorities law, an educational  corporation
    29  established  under  article fifty-six of the education law, a commission
    30  appointed pursuant to law, as well as state, local  and  interstate  and
    31  international  authorities  as  defined  in  section  two  of the public
    32  authorities law; and shall include any trust created by any  such  enti-
    33  ties.
    34    7.  For  purposes of this section, "construction" means work which may
    35  involve the employment of laborers, workers, or mechanics, and includes,
    36  but is not limited to, demolition, reconstruction, excavation, rehabili-
    37  tation, repair, installation, renovation, alteration, and custom  fabri-
    38  cation.  "Construction"  also  includes work performed during the design
    39  and preconstruction phases of construction, including  but  not  limited
    40  to,  inspection  and  land  surveying work and work performed during the
    41  post-construction phases of construction, including, but not limited to,
    42  all cleanup work at the jobsite. "Construction" also includes the deliv-
    43  ery to and hauling from the jobsite  of  aggregate  supply  construction
    44  materials,  such  as  sand,  gravel,  stone,  dirt, fill, as well as any
    45  necessary return hauls, whether empty or loaded.
    46    8. For purposes of this section, "custom fabrication" means the fabri-
    47  cation and all drafting  related  to  the  fabrication  of  all  masonry
    48  panels,  woodwork,  cases, cabinets, or counters, and the fabrication of
    49  plumbing, heating, cooling, ventilation, or exhaust  duct  systems,  and
    50  mechanical  insulation  solely  and specifically designed and engineered
    51  for installation in the construction, repair, or renovation of a  build-
    52  ing, regardless of where the custom fabrication is performed. The appli-
    53  cable  prevailing wage for any off-site custom fabrication work shall be
    54  the on-site prevailing wage for the job site.
    55    9. For purposes of this section, the "fiscal officer" shall be  deemed
    56  to  be  the  commissioner;  except for covered projects in a city with a

        A. 8418                             5

     1  population in excess of one million, in which case  the  fiscal  officer
     2  shall be the comptroller or other analogous officer of such city.
     3    10.  The  enforcement  of any construction work deemed to be a covered
     4  project pursuant to this section, and any additional requirements, shall
     5  be subject to the requirements of section two  hundred  twenty  of  this
     6  article  and  within  the  jurisdiction of the fiscal officer; provided,
     7  however:
     8    a. The owner or developer of such  property  subject  to  construction
     9  shall  certify under penalty of perjury within five days of commencement
    10  of construction work whether the project at  issue  is  subject  to  the
    11  provisions  of this section through the use of a standard form developed
    12  by the fiscal officer;
    13    b. The owner or developer of a covered project  shall  be  responsible
    14  for  retaining  original  payroll records in accordance with section two
    15  hundred twenty of this article for  a  period  of  six  years  from  the
    16  conclusion  of  such work. All payroll records maintained by an owner or
    17  developer pursuant to this section shall be  subject  to  inspection  on
    18  request  of  the fiscal officer.   Such owner or developer may authorize
    19  the prime contractor of the construction project to take  responsibility
    20  for  retaining and maintaining payroll records, but will be held jointly
    21  and severally liable for any violations of such contractor. All  records
    22  obtained by the fiscal officer shall be subject to the Freedom of Infor-
    23  mation Law; and
    24    c.  The  fiscal  officer may issue rules and regulations governing the
    25  provisions of this section. Violations of this section shall be  grounds
    26  for proceedings brought pursuant to section two hundred twenty-b of this
    27  article.
    28    11.  Each  owner  and  developer  subject  to the requirements of this
    29  section shall comply with the  objectives  and  goals  of  minority  and
    30  women-owned  business  enterprises  pursuant to article fifteen-A of the
    31  executive law. The department shall make training and  resources  avail-
    32  able  to assist minority and women-owned business enterprises on covered
    33  projects achieve and maintain compliance with prevailing  wage  require-
    34  ments.  The  department shall make such training and resources available
    35  online and shall afford minority and women-owned business enterprises an
    36  opportunity to submit comments on such training.
    37    12. a. The commissioner shall report to the  governor,  the  temporary
    38  president  of the senate, and the speaker of the assembly by July first,
    39  two thousand twenty-one, and annually thereafter, on  the  participation
    40  of  minority and women-owned business enterprises in relation to covered
    41  projects and contracts for public work subject to the provisions of this
    42  section and section two hundred twenty of this article  respectively  as
    43  well  as  the  diversity  practices  of  contractors  and subcontractors
    44  employing laborers, workers, and mechanics on such projects.
    45    b. Such report shall include aggregated data on  the  utilization  and
    46  participation  of  minority  and  women-owned  business enterprises, the
    47  employment of minorities and women in construction-related jobs on  such
    48  projects,  and  the commitment of contractors and subcontractors on such
    49  projects to adopting practices and policies that promote diversity with-
    50  in the workforce. The  report  shall  also  examine  the  compliance  of
    51  contractors  and  subcontractors with other equal employment opportunity
    52  requirements and anti-discrimination laws,  in  addition  to  any  other
    53  employment practices deemed pertinent by the commissioner.
    54    c.  The  fiscal  officer  may  require any owner, developer, or public
    55  entity to disclose information on  the  participation  of  minority  and
    56  women-owned business enterprises and the diversity practices of contrac-

        A. 8418                             6

     1  tors and subcontractors involved in the performance of any project under
     2  its  jurisdiction. It shall be the duty of the fiscal officer to provide
     3  such information upon request of the commissioner in order to effectuate
     4  the requirements of this section.
     5    13.  No later than one hundred eighty days after the effective date of
     6  this section, the department shall make a determination, utilizing  data
     7  from the New York state office of the comptroller and the public author-
     8  ities  reporting  information system (PARIS), as to the amount of public
     9  funds or benefits which must be received from or through  an  industrial
    10  development  agency,  local  development  corporation,  or other similar
    11  local entity, which are necessary to  deem  a  project  subject  to  the
    12  provisions  of  this  section.  Any project receiving a net benefit from
    13  public funds which is less than respective regional threshold set by the
    14  department shall not be deemed to be a covered project.
    15    a. Such recommendation shall be determined on a regional  basis  using
    16  the  following regions: (i) Bronx, Kings, New York, Queens, and Richmond
    17  counties; (ii) Nassau, Suffolk and Westchester counties; and  (iii)  the
    18  rest of the state;
    19    b.  The  net  benefit  shall be calculated based on the total value of
    20  financial assistance provided through a sales  tax  exemption,  mortgage
    21  recording  tax  exemption,  payment  in  lieu of taxes agreement and any
    22  other tax subsidy provided during the term of  the  agreement  with  the
    23  industrial  development  agency, local development corporation, or other
    24  similar local entity;
    25    c. In making such determination, the department shall ensure  no  less
    26  than  the  top  thirty  percent  of  projects  in each region are deemed
    27  covered projects. The  department  may  determine  that  the  thresholds
    28  applicable pursuant to this section be total dollar thresholds or thres-
    29  holds  triggered on the basis of total percent of project cost incentiv-
    30  ized; and
    31    d. Any project receiving a net benefit from public funds which is less
    32  than the respective regional threshold set by the  department  shall  be
    33  deemed to not be a covered project.
    34    14.  Prior  to  the  effective  date  of this section, a memorandum of
    35  understanding may be executed between one, or more, representatives of a
    36  regional  organization  representing  building  owners  and  developers,
    37  either  for profit or not-for-profit, in a region, and the largest trade
    38  labor association representing building and construction workers, in the
    39  same respective region, which  has  established  itself  as  a  regional
    40  affiliate  of  the  statewide  building and construction trades council.
    41  Such memorandum of understanding shall exempt the owners and  developers
    42  of such regional organization from complying with the provisions of this
    43  section  for  all construction, as defined in this section, performed in
    44  the applicable region on any project that would otherwise be covered  by
    45  this  section,  except  for  the  provisions  in subdivisions eleven and
    46  twelve of this section. Such exemption shall only apply for the duration
    47  of such memorandum of understanding and must be filed with  the  depart-
    48  ment upon execution.
    49    § 2. The labor law is amended by adding a new section 224-b to read as
    50  follows:
    51    §  224-b. Stop-work orders.  Where a complaint is received pursuant to
    52  this article, or where the fiscal officer upon his or her  own  investi-
    53  gation,  finds  cause to believe that any person, in connection with the
    54  performance of any contract for public  work  pursuant  to  section  two
    55  hundred  twenty  of  this  article  or  any  covered project pursuant to
    56  section two hundred twenty-four-a of this article, has substantially and

        A. 8418                             7

     1  materially failed to comply with or intentionally evaded the  provisions
     2  of this article, the fiscal officer may notify such person in writing of
     3  his  or  her intention to issue a stop-work order. Such notice shall (i)
     4  be served in a manner consistent with section three hundred eight of the
     5  civil  practice  law  and  rules;  (ii) notify such person of his or her
     6  right to a hearing; and (iii) state the factual  basis  upon  which  the
     7  fiscal officer has based his or her decision to issue a stop-work order.
     8  Any  documents, reports, or information that form a basis for such deci-
     9  sion shall be provided to such person within a  reasonable  time  before
    10  the hearing. Such hearing shall be expeditiously conducted.
    11    Following the hearing, if the fiscal officer issues a stop-work order,
    12  it  shall  be served by regular mail, and a second copy may be served by
    13  telefacsimile or by electronic mail, with service effective upon receipt
    14  of any such order. Such stop-work order shall also be served with regard
    15  to a worksite by posting a copy of such order in a conspicuous  location
    16  at the worksite. The order shall remain in effect until the fiscal offi-
    17  cer  directs  that the stop-work order be removed, upon a final determi-
    18  nation on the complaint or where such failure to  comply  or  evade  has
    19  been  deemed  corrected. If the person against whom such order is issued
    20  shall within thirty days after issuance of the stop-work order makes  an
    21  application in affidavit form for a redetermination review of such order
    22  the fiscal officer shall make a decision in writing on the issues raised
    23  in such application. The fiscal officer may direct a conditional release
    24  from  a  stop-work order upon a finding that such person has taken mean-
    25  ingful and good faith steps to comply with the provisions of this  arti-
    26  cle.
    27    § 3. The labor law is amended by adding a new section 813-a to read as
    28  follows:
    29    §  813-a.  Annual  reports by apprenticeship programs. 1. On an annual
    30  basis, all apprenticeship programs covered under the provisions of  this
    31  article  shall  report to the department on the participation of appren-
    32  tices currently enrolled in such apprenticeship program. The data to  be
    33  included  in  such  report  shall  include,  at a minimum: (a) the total
    34  number of apprentices in such apprenticeship program; (b) the demograph-
    35  ic information of such apprentices to the extent such data is available,
    36  including, but not limited to, the age,  gender,  race,  ethnicity,  and
    37  national  origin  of  such  apprentices; (c) the rate of advancement and
    38  graduation of such apprentices; and (d) the rate of  placement  of  such
    39  apprentices  onto  job  sites  as well as the demographic information of
    40  such apprentices to the extent such data is  available,  including,  but
    41  not  limited to the age, gender, race, ethnicity, and national origin of
    42  such apprentices.
    43    2. The department shall make  such  data  publicly  available  on  its
    44  website  by  July first, two thousand twenty-one and on an annual basis,
    45  but no later than December thirty-first of each following year.
    46    § 4. This act shall take effect on July  1,  2020;  provided,  however
    47  that  this  act  shall  not  apply  to an agreement entered into with an
    48  industrial development agency, local development corporation,  or  other
    49  similar  local  entity  entered  into prior to the day on which this act
    50  shall have become a law, or to any appropriations of public  funds  made
    51  prior to the day on which this act shall have become a law, or to re-ap-
    52  propriations  of such funds first appropriated prior to the day on which
    53  this act shall have become a law.
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