Provides that a contractor making or taking a construction contract shall assume liability for any debt resulting from making a wage claim, owed to a wage claimant or third party on the wage claimant's behalf, incurred by a subcontractor at any tier acting under, by, or for the contractor for the wage claimant's performance of labor; provides for wage theft prevention and enforcement.
STATE OF NEW YORK
R. R. 14
2021-2022 Regular Sessions
January 22, 2021
Introduced by M. of A. JOYNER, BRONSON, OTIS, SIMON, GONZALEZ-ROJAS,
KELLES, L. ROSENTHAL, BRABENEC -- read once and referred to the
Committee on Labor -- reported and referred to the Committee on Codes
-- reported and referred to the Committee on Rules -- ordered to a
third reading, passed by Assembly and delivered to the Senate,
recalled from the Senate, vote reconsidered, bill amended, ordered
reprinted, retaining its place on the special order of third reading
AN ACT to amend the labor law and the general business law, in relation
to actions for non-payment of wages
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 198-e to
2 read as follows:
3 § 198-e. Construction industry wage theft. 1. A contractor making or
4 taking a construction contract shall assume liability for any debt
5 resulting from an action under section one hundred ninety-eight of this
6 article, owed to a wage claimant or third party on the wage claimant's
7 behalf, incurred by a subcontractor at any tier acting under, by, or for
8 the contractor or its subcontractors for the wage claimant's performance
9 of labor.
10 2. No agreement or release by an employee or subcontractor to waive
11 liability assigned to a contractor under this section shall be valid
12 except as otherwise provided herein. The provisions of this section
13 shall not be deemed to impair the rights of a contractor to maintain an
14 action against a subcontractor for amounts for owed wages that are paid
15 by a contractor pursuant to this section.
16 3. Notwithstanding any other provision of law, the remedies available
17 for a claim pursuant to subdivision one of this section shall only be
18 civil and administrative actions.
19 4. In the case of a private civil action by an employee, such employee
20 may designate any person, organization or collective bargaining agent
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
 is old law to be omitted.
A. 3350--A 2
1 authorized to file a complaint with the commissioner pursuant to
2 section one hundred ninety-six-a of this article, to make a wage claim
3 on his or her behalf.
4 5. In the case of an action against a subcontractor, the contractor
5 shall be considered jointly and severally liable for any unpaid wages,
6 benefits, wage supplements, and any other remedies available pursuant to
7 the requirements of section one hundred ninety-eight of this article.
8 6. Nothing herein shall preclude the attorney general from bringing a
9 civil action to collect unpaid wages and penalties on behalf of employ-
10 ees pursuant to this section.
11 7. A contractor or any other person shall not evade, or commit any act
12 that negates, the requirements of this section, provided, however, that
13 this section shall not be deemed to prohibit a contractor or subcontrac-
14 tor from establishing by contract or enforcing any other lawful remedies
15 against a subcontractor it hires for liability created by violation of
16 this section, provided that such contract or arrangement does not dimin-
17 ish the right of employees to bring an action under the provisions of
18 this section.
19 8. As used in this section:
20 a. "Construction contract" means a written or oral agreement for the
21 construction, reconstruction, alteration, maintenance, moving or demoli-
22 tion of any building, structure or improvement, or relating to the exca-
23 vation of or other development or improvement to land. For purposes of
24 this section, a construction contract shall not include: any contract
25 which is subject to article eight of this chapter; a home improvement
26 contract for the performance of a home improvement between a home
27 improvement contractor and the owner of an owner-occupied dwelling; and
28 a home construction contract for one- or two-family dwelling units
29 except where such contract or contracts results in the construction of
30 more than ten one- or two-family owner-occupied dwellings at one project
31 site annually.
32 b. "Contractor" means any person, firm, partnership, corporation,
33 association, company, organization or other entity, including a
34 construction manager, general or prime contractor, joint venture, or any
35 combination thereof, which enters into a construction contract with an
37 c. "Owner" means any person, firm, partnership, corporation, company,
38 association or other organization or other entity, or a combination of
39 any thereof, (with an ownership interest, whether the interest or estate
40 is in fee, as vendee under a contract to purchase, as lessee or another
41 interest or estate less than fee) that causes a building, structure or
42 improvement, new or existing, to be constructed, altered, repaired,
43 maintained, moved or demolished or that causes land to be excavated or
44 otherwise developed or improved.
45 d. "Subcontractor" means any person, firm, partnership, corporation,
46 company, association, organization or other entity, or any combination
47 thereof, which is a party to a contract with a contractor, and/or party
48 to a contract with the contractor's subcontractors at any tier to
49 perform any portion of work within the scope of the contractor's
50 construction contract with the owner, including where the subcontractor
51 has no direct privity of contract with the contractor.
52 9. Any liability assigned to a contractor pursuant to the provisions
53 of this section shall be applicable for any claims occurring no later
54 than three years prior to the initiation of such claim in a court of
55 competent jurisdiction or the commencement of a civil action brought
56 forth by the attorney general or department. The provisions of this
A. 3350--A 3
1 section shall not be deemed to diminish, impair, or otherwise infringe
2 on any other rights of an employee provided pursuant to this chapter,
3 including the right of an employee to bring an action against any
4 employer under the provisions of section one hundred ninety-eight of
5 this article.
6 10. Nothing in this section shall be deemed to diminish the rights,
7 privileges, or remedies of any employee under any collective bargaining
8 agreement. The provisions of this section may be waived by a collective
9 bargaining agreement with a bona fide building and construction trade
10 labor organization which has established itself, and/or its affiliates,
11 as the collective bargaining representative for persons performing work
12 on a project, provided that for such waiver to be valid, it shall
13 explicitly reference this section. Provided, however, that such waiver
14 shall not diminish or impair the rights of an employee provided under
15 any other section of this chapter.
16 § 2. The general business law is amended by adding a new section 756-f
17 to read as follows:
18 § 756-f. Wage theft prevention and enforcement. 1. Upon request of a
19 contractor, or a contractor's subcontractor, to any subcontractor which
20 performs any portion of work within the scope of the contractor's
21 construction contract with an owner, such subcontractor shall provide
22 certified payroll records which, at a minimum, contain all lawfully
23 required information required for all employees providing labor on the
24 project. Such payroll records shall contain sufficient information to
25 apprise the contractor or subcontractor of such subcontractor's payment
26 status in paying wages and making any applicable fringe or other benefit
27 payments or contributions to a third party on its employee's behalf.
28 Payroll records shall be marked or redacted to an extent only to prevent
29 disclosure of an individual's full social security number but shall
30 provide the last four digits of the social security number.
31 2. Upon request of a contractor, or a contractor's subcontractor, to
32 any subcontractor which performs any portion of work within the scope of
33 the contractor's construction contract with an owner, such subcontractor
34 shall provide: (a) the names of all workers of such subcontractor on the
35 project, including the names of all those designated as independent
36 contractors; (b) when applicable, the name of the contractor's subcon-
37 tractor with whom such subcontractor is under contract; (c) the antic-
38 ipated contract start date; (d) the scheduled duration of work; (e) when
39 applicable, local unions with whom such subcontractor is a signatory
40 contractor; and (f) the name, address and phone number of a contact for
41 such subcontractor.
42 3. Failure to timely comply with a request for information as provided
43 herein shall be a basis for a contractor to withhold payments owed to a
44 subcontractor at any tier.
45 4. Unless otherwise required by law, a contractor or subcontractor
46 shall not communicate an individual's personal identifying information
47 to the general public. For purposes of this section, "personal identify-
48 ing information" shall have the same definition as provided for in para-
49 graph (d) of subdivision one of section two hundred three-d of the labor
51 5. For the purposes of this section, "contractor" means any person,
52 firm, partnership, corporation, association, company, organization or
53 other entity, including a construction manager, general or prime
54 contractor, joint venture, or any combination thereof, which enters into
55 a construction contract with an owner.
A. 3350--A 4
1 6. For the purposes of this section, "owner" means any person, firm,
2 partnership, corporation, company, association or other organization or
3 other entity, or a combination of any thereof, (with an ownership inter-
4 est, whether the interest or estate is in fee, as vendee under a
5 contract to purchase, as lessee or another interest or estate less than
6 fee) that causes a building, structure or improvement, new or existing,
7 to be constructed, altered, repaired, maintained, moved or demolished or
8 that causes land to be excavated or otherwise developed or improved.
9 7. For the purposes of this section, "subcontractor" means any person,
10 firm, partnership, corporation, company, association, organization or
11 other entity, or any combination thereof, which is a party to a contract
12 with a contractor, and/or party to a contract with the contractor's
13 subcontractors at any tier, to perform any portion of work within the
14 scope of the contractor's construction contract with the owner, includ-
15 ing where the subcontractor has no direct privity of contract with the
17 § 3. Severability. If any provision of this act, or any application of
18 any provision of this act, is held to be invalid, that shall not affect
19 the validity or effectiveness of any other provision of this act, or of
20 any other application of any provision of this act, which can be given
21 effect without that provision or application; and to that end, the
22 provisions and applications of this act are severable.
23 § 4. This act shall take effect on the one hundred twentieth day after
24 it shall have become a law and shall apply to construction contracts
25 entered into, renewed, modified or amended on or after such effective