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AB 3350 Summary:

BILL NOA03350A
 
SAME ASSAME AS S02766-C
 
SPONSORJoyner
 
COSPNSRBronson, Otis, Simon, Gonzalez-Rojas, Kelles, Rosenthal L, Brabenec, Epstein, Barron, Jacobson
 
MLTSPNSR
 
Add §198-e, Lab L; add §756-f, Gen Bus L
 
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.
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AB 3350 Actions:

BILL NOA03350A
 
01/22/2021referred to labor
01/26/2021reported referred to codes
01/26/2021reported referred to rules
01/26/2021reported
01/26/2021rules report cal.14
01/26/2021ordered to third reading rules cal.14
01/26/2021passed assembly
01/26/2021delivered to senate
01/26/2021REFERRED TO LABOR
05/26/2021recalled from senate
05/26/2021RETURNED TO ASSEMBLY
05/26/2021vote reconsidered - restored to third reading
05/26/2021amended on third reading (t) 3350a
06/01/2021repassed assembly
06/01/2021returned to senate
06/01/2021REFERRED TO LABOR
06/02/2021SUBSTITUTED FOR S2766C
06/02/20213RD READING CAL.1110
06/02/2021PASSED SENATE
06/02/2021RETURNED TO ASSEMBLY
09/03/2021delivered to governor
09/06/2021signed chap.419
09/06/2021approval memo.18
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AB 3350 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         3350--A
                                                                    R. R. 14
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    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.
                                                                   LBD04456-13-1

        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
    36  owner.
    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
    50  law.
    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
    16  contractor.
    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
    26  date.
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