Ortiz, Simon, Rosenthal D, Reyes, Cruz, Abbate, Miller MG, De La Rosa, Fernandez, Quart, Simotas,
Weprin, Bronson, Barron, Benedetto, Pichardo, Carroll, Dilan
 
MLTSPNSR
DenDekker
 
Amd Lab L, generally
 
Relates to covered developers, covered employers, covered lessees or lessors, financial assistance provided to covered developers, covered leases, and covered development projects; provides for rights of employees working under such circumstances.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A6964
SPONSOR: Crespo
 
TITLE OF BILL: An act to amend the labor law, in relation to covered
developers, covered employers, covered lessees or lessors, financial
assistance provided to covered developers, covered leases, and covered
development projects
 
PURPOSE:
The purpose of the bill is to ensure that building service employees
employed by entities receiving financial assistance from a public agency
or entering into a lease agreement with a public agency are paid the
prevailing wage.
 
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill amends section 230 of the labor law by defining
"covered developer," "covered employer," "covered lessee," "covered
lessor," "financial assistance," "covered lease," and "covered develop-
ment project."
Section 2 of the bill amends the labor law by adding a new section 231-a
that extends the prevailing wage requirement for building service
employees to entities receiving financial assistance from a public agen-
cy or entering into a lease agreement with a public agency.
Section 3 of the bill amends section 232 of the labor law to extend to
building service employees at covered development projects or at real
property subject to a covered lease the right to be paid overtime on
their prevailing wage rate.
Section 4 of the bill amends section 233 of the labor law to extend
record keeping requirements for work being performed by building service
employees.
Section 5 of the bill amends section 234 of the labor law to expand the
fiscal officer's power to include access to the employment records of
building service employees kept by covered developers and covered
lessees or lessors.
Section 6 of the bill amends the labor law by adding a new section 235-a
that extends to covered developers and covered lessees or lessors
provisions regarding investigations, hearings, and actions by building
service employees.
Section 7 of the bill amends section 237 of the labor law to provide for
verified statements by covered developers and covered lessees or lessors
to the effect that they will pay the prevailing wage.
Section 8 of the bill amends section 238 of the labor law to include
penalties for covered developers and covered lessees or lessors who fail
to comply with the provisions of the article.
Section 9 of the bill amends section 239 of the labor law to extend
prohibitions of discrimination to covered developers and covered lessees
or lessors.
Section 10 of the bill amends section 239-a of the labor law to extend
the enforcement of discrimination prohibitions against covered develop-
ers and covered lessees or lessors.
Section 11 of the bill sets the effective date.
 
JUSTIFICATION:
Recognizing that public money and resources should not be used to subsi-
dize low-wage jobs or undercut worker standards, New York State labor
law already requires prevailing wage standards for government contrac-
tors providing building services. However, when the public's land is
leased or when public money is transferred to development projects via
other mechanisms such as grants, tax abatements, and leases, there are
no wage standards that ensure that jobs created are not low wage or that
worker standards are not undercut. This proposal will update the
prevailing wage law to ensure that public money and resources help
create family sustaining jobs, while maintaining worker standards and
bringing money directly into low-income communities across the state.
 
LEGISLATIVE HISTORY:
This is a new bill.
 
FISCAL IMPLICATIONS:
None.
 
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
6964
2019-2020 Regular Sessions
IN ASSEMBLY
March 28, 2019
___________
Introduced by M. of A. CRESPO -- read once and referred to the Committee
on Labor
AN ACT to amend the labor law, in relation to covered developers,
covered employers, covered lessees or lessors, financial assistance
provided to covered developers, covered leases, and covered develop-
ment projects
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 1, 5, 8, 12 and 13 of section 230 of the labor
2 law, subdivision 1 as amended by chapter 542 of the laws of 1984, subdi-
3 visions 5 and 8 as added by chapter 777 of the laws of 1971, and subdi-
4 visions 12 and 13 as added by chapter 547 of the laws of 1998, are
5 amended and seven new subdivisions 15, 16, 17, 18, 19, 20 and 21 are
6 added to read as follows:
7 1. "Building service employee" or "employee" means any person perform-
8 ing work in connection with the care or maintenance of an existing
9 building, or in connection with the transportation of office furniture
10 or equipment to or from such building, or in connection with the trans-
11 portation and delivery of fossil fuel to such building, for a contractor
12 under a contract with a public agency which is in excess of one thousand
13 five hundred dollars and the principal purpose of which is to furnish
14 services through the use of building service employees or in connection
15 with a covered development project or lease.
16 "Building service employee" or "employee" includes, but is not limit-
17 ed, to, watchman, guard, doorman, building cleaner, porter, handyman,
18 janitor, gardener, groundskeeper, stationary fireman, elevator operator
19 and starter, window cleaner, and occupations relating to the collection
20 of garbage or refuse, and to the transportation of office furniture and
21 equipment, and to the transportation and delivery of fossil fuel but
22 does not include clerical, sales, professional, technician and related
23 occupations.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10763-03-9
A. 6964 2
1 "Building service employee" or "employee" also does not include any
2 employee to whom the provisions of articles eight and eight-a of this
3 chapter are applicable.
4 5. "Wage" includes: (a) basic hourly cash rate of pay; and (b) supple-
5 ments. The term "supplements" means fringe benefits including medical or
6 hospital care, pensions on retirement or death, compensation for inju-
7 ries or illness resulting from occupational activity, or insurance to
8 provide any of the foregoing, unemployment benefits, life insurance,
9 disability and sickness insurance, accident insurance, vacation and
10 holiday pay, costs of apprenticeship or other similar programs and other
11 bona fide fringe benefits not otherwise required by federal, state or
12 local law to be provided by the contractor, covered developer, covered
13 lessee or lessor, covered employer, or subcontractor.
14 8. "Fiscal officer" means the industrial commissioner, except for
15 building service work performed by or on behalf of a city, or where the
16 covered development project or real property subject to a covered lease
17 is located within a city with a population of over one million, in which
18 case "fiscal officer" means the comptroller or other analogous officer
19 of such city.
20 12. "Parent company" shall mean an entity that directly controls the
21 contractor or subcontractor, or covered developer, or covered lessee or
22 lessor.
23 13. "Subsidiary" shall mean an entity that is controlled directly, or
24 indirectly through one or more intermediaries, by a contractor or
25 subcontractor, or covered developer, or covered lessee or lessor, or the
26 contractor's, or covered developer's, or covered lessee's or lessor's
27 parent company.
28 15. "Covered developer" means any entity receiving financial assist-
29 ance in relation to a covered development project, or any assignee or
30 successor in interest of real property that qualifies as a covered
31 development project.
32 16. "Covered employer" means any entity, other than a covered develop-
33 er, or covered lessee or lessor, who employs building service workers at
34 a covered development project or at any real property subject to a
35 covered lease.
36 17. "Covered lessee" means any entity leasing real property from a
37 public agency.
38 18. "Covered lessor" means any entity from whom a public agency is
39 leasing commercial office space or commercial office facilities of ten
40 thousand square feet or more, provided that the public agency, whether
41 through a single agreement or multiple agreements, leases no less than
42 fifty-one percent of the total square footage of the building to which
43 the lease or leases apply.
44 19. "Financial assistance" means assistance that is provided to a
45 covered developer for the improvement or development of real property,
46 economic development, job retention and growth, or other similar
47 purposes, and that is paid in whole or in part by a public agency or
48 agencies, and having a cumulative anticipated total financial value of
49 one million dollars. Financial assistance includes, but is not limited
50 to, cash payments or grants, bond financing, tax abatements or
51 exemptions (including, but not limited to, abatements or exemptions from
52 real property, mortgage recording, sales and uses taxes, or the differ-
53 ence between any payments in lieu of taxes and the amount of real prop-
54 erty or other taxes that would have been due if the property were not
55 exempted from the payment of such taxes), tax increment financing,
56 filing fee waivers, energy cost reductions, environmental remediation
A. 6964 3
1 costs, write-downs in the market value of building, land, or the cost of
2 capital improvements related to real property that, under ordinary
3 circumstances, the public agency would not pay for. Where assistance
4 takes the form of loans or bond financing, the value of the assistance
5 shall be determined based on the difference between the financing cost
6 to a borrower and the cost to a similar borrower that does not receive
7 financial assistance.
8 20. "Covered lease" means any agreement by a public agency with a
9 covered lessor or lessee.
10 21. "Covered development project" means a project that has received or
11 is expected to receive financial assistance.
12 § 2. The labor law is amended by adding a new section 231-a to read as
13 follows:
14 § 231-a. Prevailing wage for covered leases and covered development
15 projects. 1. Covered developers and covered lessees or lessors shall
16 endure that all building service employees performing building service
17 work in connection with a covered development project or covered lease
18 are paid no less than the prevailing wage.
19 2. The obligation to pay prevailing supplements may be discharged by
20 furnishing any equivalent combinations of fringe benefits or by making
21 equivalent or differential payments in cash under rules and regulations
22 established by the fiscal officer.
23 3. The public agency providing financial assistance or entering into a
24 covered lease shall require, as a contractual condition of such finan-
25 cial assistance or covered lease, that any building service employee
26 performing building service work in connection with a covered develop-
27 ment project or covered lease, regardless of the employing entity, shall
28 be paid no less than the prevailing wage; and any lease, contract for
29 property management services, or contract for the provision of building
30 services, entered into by the covered developer or covered lessee or
31 lessor, and any subcontract thereof, shall contain the following
32 provision: "All building service employees shall be paid no less than
33 the prevailing wage as provided by the fiscal officer as described in
34 section two hundred thirty-four of the Labor Law. Any covered employer,
35 as defined in section two hundred thirty of the Labor Law, shall main-
36 tain all records relating to the employment of building service workers
37 as described in section two hundred thirty-three of the Labor Law which
38 are to be provided to the covered developer. Such covered employer shall
39 also submit such statements as required under section two hundred thir-
40 ty-seven of the Labor Law. This requirement shall apply to any covered
41 development project or real property subject to a covered lease as
42 provided by Article nine of the Labor Law."
43 4. Upon the awarding of financial assistance or entering into a
44 covered lease by a public agency, the awarding public agency shall imme-
45 diately furnish to the fiscal officer:
46 (a) the name and address of the awardee;
47 (b) the date when the financial assistance was awarded or the covered
48 lease was entered into;
49 (c) the specific building or facility address or addresses, or locali-
50 ty to which the covered lease or financial assistance pertains, if the
51 financial assistance is targeted to a particular building or buildings,
52 facility or facilities, or locality; and
53 (d) the anticipated total value of the financial assistance.
54 5. When the financial assistance to the covered development project
55 applies to a particular building or buildings, facility or facilities,
56 or locality, the prevailing wage shall apply only to such building or
A. 6964 4
1 buildings, facility or facilities, or locality; however, when the finan-
2 cial assistance is not so limited, the covered development project shall
3 be deemed to include any building or facility in which the covered
4 developer operates within the state, and the prevailing wage requirement
5 set forth in this subdivision shall apply to any building or facility in
6 which the covered developer operates within the state.
7 6. The fiscal officer shall maintain a list of covered developers,
8 covered lessees or lessors, and covered development projects, including
9 the addresses of each. Such list shall be updated and published as often
10 as is necessary to keep current.
11 7. Within two weeks of receiving financial assistance or entering into
12 a covered lease, a covered developer, covered lessee or lessor, or
13 covered employer shall post, in the same location and manner that other
14 statutorily required notices are posted, at every such covered develop-
15 ment project or real property subject to the covered lease, and provide
16 each building service employee a copy of a written notice which shall be
17 prepared by the fiscal officer, detailing the wages, benefits, and other
18 protections to which building service employees are entitled under this
19 section. Such notice shall also provide the name, address and telephone
20 number of the fiscal officer and a statement advising building service
21 employees that if they have been paid less than the prevailing wage they
22 may notify the fiscal officer and request an investigation or bring suit
23 in a court of competent jurisdiction. Such notices shall be posted in
24 English and in any other language which at least twenty percent of
25 employees speak as a primary language. Such notice shall remain posted
26 for the time that the requirements of this section shall apply and shall
27 be adjusted periodically to reflect the current prevailing wage for
28 building service employees. In addition to posting such notice, the
29 covered developer, covered lessee or lessor, or covered employer shall
30 provide each individual employee a copy of the notice in English or any
31 other language spoken by the employee as a primary language, so long as
32 the fiscal officer has made such notice available to employers in such
33 language on its website. The fiscal officer shall make available on its
34 website sample written notices explaining the rights of building service
35 employees under this section and shall translate such sample written
36 notices into such languages it deems appropriate.
37 8. The requirements of this section shall apply for the term of the
38 financial assistance, ten years from the opening date of the financially
39 assisted project, the duration of any written agreement between a public
40 agency and the covered developer providing for financial assistance, or
41 the duration of the covered lease, whichever is longer.
42 9. This section shall not preempt any public agency from establishing
43 higher minimum wages for covered developers or covered lessees or
44 lessors receiving financial assistance or leasing from or to a public
45 agency. Nor shall any covered developer, covered lessee or lessor, or
46 covered employer be preempted from paying a wage higher than the
47 prevailing wage.
48 § 3. Section 232 of the labor law, as added by chapter 777 of the laws
49 of 1971, is amended to read as follows:
50 § 232. Overtime. An employee, employed by a contractor or employed at
51 a covered development project, or at real property subject to a covered
52 lease, who works more than eight hours in any one day or more than forty
53 hours in any workweek shall be paid wages for such overtime at a rate
54 not less than one-and-one-half times his prevailing basic cash hourly
55 rate.
A. 6964 5
1 § 4. Subdivisions 1, 2 and 3 of section 233 of the labor law, as added
2 by chapter 777 of the laws of 1971, are amended and two new subdivisions
3 5 and 6 are added to read as follows:
4 1. In all cases where service work is being performed pursuant to a
5 contract, or covered lease, or covered development project therefor, the
6 contractor, or covered developer, or covered lessee or lessor, shall
7 keep original payrolls or transcripts thereof, subscribed and confirmed
8 by him as true, under penalties of perjury, showing the hours and days
9 worked by each employee, the craft, trade or occupation at which he was
10 employed, and the wages paid. A covered developer or covered lessee or
11 lessor may satisfy this requirement by obtaining copies of employment
12 records from a covered employer.
13 2. Where the wages paid include sums which are not paid directly to
14 the workmen weekly and which are expended for supplements, the records
15 required to be maintained shall include a record of such hourly payment
16 on behalf of such employees, the supplement for which such payment has
17 been made, and the name and address of the person to whom such payment
18 has been made. In all such cases, the contractor, or covered developer,
19 or covered lessee or lessor, shall keep a true and inscribed copy of the
20 agreement under which such payments are made, a record of all net
21 payments made thereunder, and a list of all persons for whom such
22 payments are made. A covered developer, or covered lessee or lessor,
23 may satisfy this requirement by obtaining copies of employment records
24 from a covered employer.
25 3. The records required to be maintained shall be kept on the site of
26 the work during all of the time that work under the contract, or other-
27 wise subject to the requirements of this section, is being performed.
28 5. A covered developer, or covered lessee or lessor, shall include a
29 requirement in all leases, management agreements, or service contracts,
30 and any subcontracts thereof, that any covered employer shall comply
31 with the recordkeeping requirements of this section. The covered devel-
32 oper, or covered lessee or lessor shall obtain such records from any
33 covered employer and preserve such records for a period of six years
34 after the completion of the employee's work.
35 6. Failure to maintain such records as required by this section shall
36 create a rebuttable presumption that the building service employees were
37 not paid the wages and supplements required under this article.
38 § 5. Paragraph (f) of subdivision 1 of section 234 of the labor law,
39 as added by chapter 777 of the laws of 1971, is amended to read as
40 follows:
41 (f) to require a contractor, or covered developer, or covered lessee
42 or lessor, to file with the fiscal officer a record of the wages actual-
43 ly paid by such contractor, or covered developer, or covered lessee or
44 lessor, to the employees and of their hours of work;
45 § 6. The labor law is amended by adding a new section 235-a to read as
46 follows:
47 § 235-a. Investigations, hearings, and private right of action for
48 covered leases and covered development projects. 1. Whenever the fiscal
49 officer has reason to believe that a building service employee perform-
50 ing building service work in connection with a covered lease or covered
51 development project has been paid less than the applicable prevailing
52 wage and supplements, or upon receipt of a written complaint, the fiscal
53 officer shall conduct a special investigation to determine the facts
54 relating thereto.
55 2. If, despite the requirements of law, the fiscal officer has not
56 determined the prevailing wage as required in this article, the fiscal
A. 6964 6
1 officer shall determine in the proceeding before him the wages prevail-
2 ing at the time the work was performed for the crafts, trades, or occu-
3 pations of the employees involved.
4 3. In an investigation conducted under the provisions of this section,
5 the inquiry of the fiscal officer shall not extend to work performed
6 more than three years prior to: (a) the filing of the complaint; or (b)
7 the commencement of the investigation upon the fiscal officer's own
8 violation, whichever occurs first.
9 4. (a) The investigation and hearing shall be expeditiously conducted,
10 and upon the completion thereof, the fiscal officer shall determine the
11 issues raised and shall make and file an order in his office stating
12 such determination, and forthwith serve personally or by mail a copy of
13 such order and determination together with a notice of filing upon all
14 parties to the proceeding, and upon the financial officer of the public
15 agency involved.
16 (b) In addition to directing payment of wages found to be due, such
17 order of the fiscal officer shall direct payment of liquidated damages
18 in an amount equal to the greater of two percent of the annual value of
19 the financial assistance or covered lease, or two-tenths of a percent of
20 the total value of the financial assistance or covered lease. Where the
21 fiscal officer is the commissioner, the penalty shall be paid to the
22 commissioner for deposit in the state treasury. Where the fiscal officer
23 is a city comptroller or other analogous officer, the penalty shall be
24 paid to said officer for deposit in the city treasury.
25 (c) An order directing the payment to specified employees of wages
26 found to be due and unpaid shall include interest at a rate not less
27 than six per centum per year, and not more than the rate of interest
28 then in effect as prescribed by the superintendent of financial services
29 pursuant to section fourteen-a of the banking law per annum from the
30 time such wages should have been paid. In determining the rate of inter-
31 est to be imposed, the fiscal officer shall consider the size of the
32 employer's business, the good faith of the employer, the gravity of the
33 violation, the history of previous violations of the employer, successor
34 or substantially-owned affiliated entity, any officer of the covered
35 developer, covered lessee or lessor, or covered employer who knowingly
36 participated in the violation of this article, and any of the partners
37 if the covered developer, covered lessee or lessor, or covered employer
38 is a partnership, or any of the five largest shareholders of the covered
39 developer, covered lessee or lessor, or the covered employer, as deter-
40 mined by the fiscal officer, and the failure to comply with recordkeep-
41 ing or other non-wage requirements.
42 5. (a) Provided that no proceeding for judicial review as provided in
43 this section shall then be pending and the time for initiation of such
44 proceeding shall have expired, the fiscal officer shall file with the
45 county clerk of the county where the employer resides or has a place of
46 business, the order of the fiscal officer containing the amount found to
47 be due. The filing of such order shall have the full force and effect of
48 a judgment duly docketed in the office of such clerk. The order may be
49 enforced by and in the name of the fiscal officer in the same manner,
50 and with like effect, as that prescribed by the civil practice law and
51 rules for the enforcement of a money judgment.
52 (b) When a final determination has been made in favor of a complain-
53 ant, and the covered developer, covered lessee or lessor, or covered
54 employer found in violation of this article has failed to make payment
55 as required by the order of the fiscal officer, and provided that no
56 relevant proceeding for judicial review shall then be pending and the
A. 6964 7
1 time for initiation of such proceeding shall have expired, the fiscal
2 officer may file a copy of the order of the fiscal officer containing
3 the amount found to be due with the county clerk of the county of resi-
4 dence or place of business of any of the following:
5 (i) any substantially-owned affiliated entity or any successor of the
6 covered developer, covered lessee or lessor, or covered employer;
7 (ii) any of the partners if the covered developer, covered lessee or
8 lessor, or covered employer is a partnership or any of the five largest
9 shareholders of the covered developer, covered lessee or lessor, or
10 covered employer, as determined by the fiscal officer; or
11 (iii) any officer of the covered developer, covered lessee or lessor,
12 or covered employer who knowingly participated in the violation of this
13 article; provided, however, that the fiscal officer shall within five
14 days of the filing of the order provide notice thereof to the partner or
15 top five shareholders or successor or substantially-owned affiliated
16 entity.
17 (c) The notified party may contest the filing on the basis that it is
18 not a partner or one of the five largest shareholders, an officer of the
19 covered developer, covered lessee or lessor, or covered employer who
20 knowingly participated in the violation of this article, successor or
21 substantially-owned affiliated entity. If, after reviewing the informa-
22 tion provided by the notified party in support of such contest, the
23 fiscal officer determines that the notified party is not within the
24 definitions described herein, the fiscal officer shall immediately with-
25 draw his filing of the order.
26 (d) The filing of such order shall have the full force and effect of a
27 judgment duly docketed in the office of such clerk. The order may be
28 enforced by and in the name of the fiscal officer in the same manner,
29 and with like effect as that prescribed by the civil practice law and
30 rules for the enforcement of a money judgment.
31 6. When a final determination has been made and such determination is
32 in favor of an employee, such employee may, in addition to any other
33 remedy provided by this article, institute an action in any court of
34 appropriate jurisdiction against the entity found to have violated this
35 article, any substantially-owned affiliated entity, any officer of the
36 covered developer, covered lessee or lessor, or covered employer who
37 knowingly participated in the violation of this article, and any of the
38 partners if the covered developer, covered lessee or lessor, or covered
39 employer is a partnership or any of the five largest shareholders of the
40 covered developer, covered lessee or lessor, or covered employer, as
41 determined by the fiscal officer, for the recovery of the difference
42 between the sum, if any, actually paid to him or her by the aforesaid
43 financial officer pursuant to said order and the amount found to be due
44 to him or her as determined by said order. Such action must be commenced
45 within three years from the date of the filing of said order, or if said
46 order is reviewed in a proceeding pursuant to article seventy-eight of
47 the civil practice law and rules, within three years after the termi-
48 nation of such review proceeding.
49 7. (a) Any person claimed to be aggrieved by a violation of this arti-
50 cle shall have a cause of action in any court of competent jurisdiction
51 against the entity alleged to have violated this article, any substan-
52 tially-owned affiliated entity, any officer of the covered developer,
53 covered lessee or lessor, or covered employer who knowingly participated
54 in the violation of this article, and any of the partners if the covered
55 developer, covered lessee or lessor, or covered employer is a partner-
56 ship or any of the five largest shareholders of the covered developer,
A. 6964 8
1 covered lessee or lessor, or covered employer, as determined by the
2 fiscal officer, for the recovery of the difference between the sum, if
3 any, actually paid to him or her by the aforesaid financial officer
4 pursuant to said order and the amount found to be due to him or her as
5 determined by said order. The aggrieved party may seek damages includ-
6 ing punitive damages, injunctive relief, and such other remedies as may
7 be appropriate, unless such person has filed a complaint with the fiscal
8 officer with respect to such claim. In an action brought by a building
9 service employee, if the court finds in favor of the employee, it shall
10 award the employee, in addition to other relief, his or her reasonable
11 attorneys' fees and costs.
12 (b) Investigation by the fiscal officer shall not be a prerequisite
13 to, nor a bar against, a person bringing a civil action under this
14 section. Notwithstanding any inconsistent provision of subdivisions one
15 through six of this section, where a complaint filed with the fiscal
16 officer is dismissed, an aggrieved person shall maintain all rights to
17 commence a civil action pursuant to this action as if no complaint had
18 been filed.
19 (c) No procedure or remedy set forth in this section is intended to be
20 exclusive or a prerequisite for asserting a claim for relief to enforce
21 any rights hereunder in a court of law. This section shall not be
22 construed to limit an employee's right to bring a common law cause of
23 action for wrongful termination.
24 (d) Any judgement or court order awarding remedies under this section
25 shall provide that if any amount remains unpaid upon the expiration of
26 ninety days following issuance of judgement, or ninety days after expi-
27 ration of the time to appeal and no appeal is then pending, whichever is
28 later, the total amount of judgement shall automatically increase by
29 fifteen percent.
30 (e) In any action instituted upon a wage claim by a building service
31 employee in which the employee prevails, the court may allow such
32 employee, in addition to ordinary costs, a reasonable sum not exceeding
33 one hundred dollars for expenses, which may be taxed as costs. No assig-
34 nee of a wage claim shall be benefitted by this provision.
35 (f) Notwithstanding any other provision of law, an action to recover
36 upon liability imposed by this article must be commenced within the
37 greater of six years from the date the cause of action accrued, or two
38 years from the time the plaintiff or the person whom the plaintiff
39 claims discovered the fraud, or could with reasonable diligence have
40 discovered it. The statute of limitations shall be tolled from the date
41 an employee files a complaint with the fiscal officer or the date the
42 fiscal officer commences an investigation, whichever if earlier, until
43 an order to comply issued by the fiscal officer becomes final, or where
44 the fiscal officer does not issue an order, until the date on which the
45 fiscal officer notifies the complainant that the investigation has
46 concluded.
47 8. (a) No person shall take any adverse action against an employee
48 which penalizes an employee for, or is reasonably likely to deter an
49 employee from, exercising or attempting to exercise such employee's
50 rights under this article or interfere with such employee's exercise of
51 rights under this article.
52 (b) Taking an adverse action includes, but is not limited to, threat-
53 ening, intimidating, disciplining, discharging, demoting, suspending, or
54 harassing an employee, reducing the hours of pay of an employee, inform-
55 ing another employer that an employee has engaged in activities
56 protected by this article, discriminating against the employee, includ-
A. 6964 9
1 ing actions related to perceived immigration status or work authori-
2 zation, and maintenance or application of an absence control policy that
3 counts protected leave as an absence that may lead to or result in an
4 adverse action.
5 (c) An employee need not explicitly refer to a provision of this arti-
6 cle to be protected from an adverse action.
7 (d) A casual connection may be established between the exercise,
8 attempted exercise, or anticipated exercise of rights protected by this
9 article and an employer's adverse action against an employee or a group
10 of employees by indirect or direct evidence.
11 (e) Retaliation is established when it is shown that a protected
12 activity was a motivating factor for an adverse action, whether or not
13 other factors motivated the adverse action.
14 9. (a) When a final determination has been made against a covered
15 employer in favor of a complainant and the covered developer, or covered
16 lessee or lessor, has made payment to the complainant of any wages and
17 interest due the complainant and any civil penalty, and providing that
18 no relevant proceeding for judicial review shall then be pending and the
19 time for initiation of such proceeding shall have expired, the covered
20 developer, or covered lessee or lessor, may file a copy of the order of
21 the fiscal officer containing the amount found to be due with the county
22 clerk of the county of residence or place of business of the covered
23 employer. The filing of such order shall have the full force and effect
24 of a judgment duly docketed in the office of such clerk. The judgment
25 may be docketed in favor of the covered developer, or covered lessee or
26 lessor, who may proceed as a judgment creditor against the covered
27 employer for the recovery of all monies paid by the covered developer,
28 or covered lessee or lessor, under such order.
29 (b) When a covered developer, or covered lessee or lessor, has made
30 payment to a complainant of any wages and interest due to him or her
31 because of a covered employer's violation of this article, the covered
32 developer, or covered lessee or lessor, may bring suit to recover all
33 monies paid by the covered developer, or covered lessee or lessor, from
34 the covered employer.
35 10. (a) When two judgments or final orders pursuant to the provisions
36 of this section have been entered against a body, as defined by para-
37 graph (b) of this subdivision, who knowingly participated in the
38 violation of this article within any consecutive six-year period deter-
39 mining that such body who knowingly participated in the violation of
40 this article has willfully failed to pay the prevailing wages in accord-
41 ance with the provisions of this article, whether such failures were
42 concurrent or consecutive and whether or not such final determinations
43 concerning separate covered leases or awards of financial assistance are
44 rendered simultaneously, such entity who knowingly participated in the
45 violation of this article, or any successor is a corporation, any offi-
46 cer of such corporation who knowingly participated in such failure,
47 shall be ineligible to enter into covered leases with a public agency or
48 receive financial assistance for a period of five years from the date of
49 the second order, provided, however, that where any such final order
50 involves the falsification of payroll records or the kickback of wages,
51 the body who knowingly participated in the violation of this article
52 shall be ineligible to enter into covered leases or to receive financial
53 assistance for a period of five years from the date of the first final
54 order. Nothing in this subdivision shall be construed as affecting any
55 provision of any other law or regulation relating to the awarding of
56 financial assistance or entering into a covered lease with a public
A. 6964 10
1 agency. The industrial commissioner shall maintain a list of covered
2 developers, covered lessees or lessors, or covered employers, who are
3 ineligible, including their names, address, date, and duration of their
4 ineligibility. Such list shall be updated and published as often as is
5 necessary to keep it current.
6 (b) For the purposes of paragraph (a) of this subdivision, the term
7 "body" shall mean a covered developer, covered lessee or lessor, covered
8 employer, successor, or any substantially-owned affiliated entity of the
9 covered developer, covered lessee or lessor, or covered employer, any of
10 the partners if the covered developer, covered lessee or lessor, or
11 covered employer is a partnership, any of the five largest shareholders
12 of the covered developer, covered lessee or lessor, or covered employer,
13 any officer of the covered developer, covered lessee or lessor, or
14 covered employer.
15 § 7. Subdivision 1 of section 237 of the labor law, as amended by
16 chapter 698 of the laws of 1988, is amended and a new subdivision 5 is
17 added to read as follows:
18 1. Subcontractors engaged for service work by a contractor or its
19 subcontractor and covered employers shall, upon receipt from the covered
20 developer, or covered lessee or lessor, contractor or its subcontractor
21 of the schedule of wages and supplements specified in the contract or
22 the prevailing wage schedule pursuant to this article, provide to the
23 covered developer, covered lessee or lessor, contractor or its subcon-
24 tractor a verified statement attesting that the covered employer or
25 subcontractor has received and reviewed such schedule of wages and
26 supplements, and agrees that it will pay the applicable prevailing wages
27 and will pay or provide the supplements specified therein. Such verified
28 statement shall be filed in the manner described in subdivision three of
29 this section for subcontractors of a contractor or its subcontractor,
30 and in the manner described in subdivision five of this section for
31 covered employers. It shall be a violation of this article for any
32 covered developer, covered lessee or lessor, contractor or its subcon-
33 tractor to fail to provide for its subcontractor a copy of the schedule
34 of wages and supplements specified in the contract or the prevailing
35 wage schedule pursuant to this article.
36 5. Prior to receiving financial assistance or entering into a covered
37 lease, or an extension, renewal, amendment, or modification of a covered
38 lease, and annually thereafter, every covered developer, covered lessee
39 or lessor, or covered employer shall provide to the public agency leas-
40 ing or providing financial assistance and to the fiscal officer an annu-
41 al verified statement that all building service employees employed at a
42 covered development project or at real property subject to a covered
43 lease by the covered developer, covered lessee or lessor, or by a
44 covered employer to perform building service work will be and/or have
45 been paid the prevailing wage. Such verified statement shall include a
46 record of the days and hours worked and the wages paid to each building
47 service employee employed at the covered development project, or at real
48 property subject to a covered lease. Where the wages paid include sums
49 which are not paid directly to the workmen weekly and which are expended
50 for supplements, the statement shall include a record of such hourly
51 payments on behalf of such employees, the supplement for which such
52 payment has been made, and the name and address of the person to whom
53 the payment has been made. Such statement shall be verified by the oath
54 of the chief executive or chief financial officer of the covered devel-
55 oper, or covered lessee or lessor, or the designee of any such person
56 that he or she has read such statements subscribed by him or her and
A. 6964 11
1 knows the contents thereof, and that the same is true of his or her own
2 knowledge, except with respect to wages and supplements owing by
3 contract which may be certified upon information and belief. A
4 violation of any provision of the statement, or failure to provide such
5 statement, shall constitute a violation of this section. The fiscal
6 officer or a public agency leasing or providing financial assistance may
7 inspect the records maintained pursuant to section two hundred thirty-
8 three of this article to verify these statements.
9 § 8. Subdivision 1 of section 238 of the labor law, as added by chap-
10 ter 777 of the laws of 1971, is amended and a new subdivision 3 is added
11 to read as follows:
12 1. Any contractor, covered developer, covered lessee or lessor,
13 covered employer, or subcontractor who shall upon his oath verify any
14 statement required to be filed under this article which is known by him
15 to be false shall be guilty of perjury and punishable as provided by the
16 penal law.
17 3. In the event of a failure by a covered developer, covered lessee or
18 lessor, or covered employer to comply with the provisions of this arti-
19 cle, the covered developer, covered lessee or lessor, or covered employ-
20 er shall be provided with a written notice of failure to comply by the
21 fiscal officer allowing ten days to cure the failure to comply. If the
22 covered developer, covered lessee or lessor, or covered employer fails
23 to timely cure in addition to any other remedies available at law or in
24 equity, the fiscal officer shall be permitted to seek the following
25 remedies:
26 (a) Suspend the payments of any financial assistance to the covered
27 developer until the date of cure.
28 (b) Failure to provide a required record or statement or to allow work
29 place access may result in liquidated damages to an amount equal to the
30 greater of two percent of the annual value of the financial assistance
31 or covered lease, or two-tenths of a percent of the total value of the
32 financial assistance or covered lease.
33 (c) A material breach of this article that continues for a period of
34 six months or more shall allow the public agency to terminate the finan-
35 cial assistance or covered lease.
36 (d) Late filing of any report required under this article: a payment
37 of one thousand dollars per day for each day the report is late, for up
38 to fourteen days. After fourteen days, the remedy in paragraph (b) of
39 this subdivision shall apply.
40 (e) Where the fiscal officer is the commissioner, the penalty shall be
41 paid to the commissioner for deposit in the state treasury. Where the
42 fiscal officer is a city comptroller or other analogous officer, the
43 penalty shall be paid to said officer for deposit in the city treasury.
44 § 9. The opening paragraph and subdivision 4 of section 239 of the
45 labor law, as added by chapter 777 of the laws of 1971, are amended to
46 read as follows:
47 [Every] Covered developers and covered lessees or lessors shall comply
48 with the following provisions, and every contract for service work shall
49 contain provisions by which the contractor agrees:
50 (4) that the contract, covered lease, or grant of financial assistance
51 may be cancelled or terminated by the public agency, and all moneys due
52 or to become due thereunder may be forfeited for a second or any subse-
53 quent violation of the terms or conditions of this section of the
54 contract.
55 § 10. Section 239-a of the labor law, as added by chapter 777 of the
56 laws of 1971, is amended to read as follows:
A. 6964 12
1 § 239-a. Enforcement of article. If the fiscal officer, as defined
2 herein, finds that any covered developer, covered lessee or lessor, or
3 contractor on service work fails to comply with or evades the provisions
4 of this article, he shall present evidence of such noncompliance or
5 evasion to the public agency having charge of such work, or having
6 entered into a covered lease or provided financial assistance for the
7 covered development project, for enforcement. Where such evidence indi-
8 cates a noncompliance or evasion on the part of a subcontractor or
9 covered employer, the contractor or covered developer, or covered lessee
10 or lessor, shall be responsible for such noncompliance or evasion. It
11 shall be the duty of the public agency in charge of such service work,
12 or who has entered into a covered lease or provided financial assistance
13 for the covered development project, to enforce the provisions of this
14 article.
15 § 11. This act shall take effect immediately.