|SAME AS||SAME AS S01947|
|COSPNSR||Mosley, Jacobson, Hyndman, Miller MG, Reyes, Lifton, Magnarelli, Glick, D'Urso, Wallace, Colton, Rozic, Stirpe, Kim, Carroll, Pheffer Amato, Steck, Rosenthal L, Smith, DeStefano, Brabenec, Ryan, Jaffee, Ramos, Simotas, Ortiz, Pichardo, Abbate, Abinanti, DenDekker, Bichotte, De La Rosa, Fall, Santabarbara, Perry, Barnwell, Nolan, Walker, Cusick, Benedetto, Niou, Vanel, Jones, Gottfried, Blake, Quart, Solages, Titus, Hunter, Rosenthal D, Zebrowski, Braunstein, Taylor, Woerner, Fahy, Richardson, Epstein, Seawright, Rodriguez, Dinowitz, Joyner, Romeo, LiPetri, Ra, Fernandez, Cruz, Griffin, Arroyo, Burke, Davila, Raynor, Lupardo, Barron, Garbarino, Aubry, Cook, O'Donnell, Schmitt|
|MLTSPNSR||Byrne, Englebright, Hevesi, Lentol, Simon, Wright|
|Amd §220, add §224-a, Lab L|
|Relates to hours, wages and supplements in contracts for public work.|
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NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1261 SPONSOR: Bronson
TITLE OF BILL: An act to amend the labor law, in relation to hours, wages and supple- ments in contracts for public work   PURPOSE OR GENERAL IDEA OF BILL: Subjects all projects financed, in whole or in part, through certain public entities, to hours, wages and supplements contract requirements.   SUMMARY OF SPECIFIC PROVISIONS: Sections 1-5 of the bill amend section 220 of the labor law. Section 1 subjects every contract for public work to certain contracting requirements related to hours, wages, and supplements. Section 2 of the bill defines public work to include all projects paid for in whole or in part with public funds, certain construction work performed under private contract, and certain construction work performed as a condition of regulatory approval. Section 3 of the bill defines "paid for in whole or in part out of public funds" to include the payment of money, issuance of bonds and grants by a public entity or a third party acting on behalf of a public entity, the transfer of a public asset for less than fair market value, certain loans, tax credits, and other forms of public subsidies. Section 4 of the bill defines a public entity to include the state, a public benefit corporation, industrial development agency, local devel- opment authority, municipal corporation, school district, local govern- ment, job development authority, dormitory authority, correctional authority, educational corporation established under article fifty-six of the education law, commission appointed pursuant to law, entities tasked with maintaining public property, and similar entities. Section 5 of the bill defines "construction." Section 6 of the bill amends adds a new section 224-a to the labor law to allow the commissioner to issue a stop-work order when there is an alleged violation of this article. Section 7 of the bill amends section 2.10 of the criminal procedure law by adding a new subdivision 84 which allows the commissioner to desig- nate employees of the department of labor as peace officers.   JUSTIFICATION: The New York State Constitution makes clear that it is the public policy of New York to pay the prevailing wage to those working on state financed construction projects, so as not to undermine the cost of local labor. In spite of this policy, employees working on publicly financed projects are presently receiving the prevailing wage due to judicial opinions which have undermined the law's original intent. This bill would remedy the present situation by adding a clear definition of "public work" subject to this article.   PRIOR LEGISLATIVE HISTORY: A.10141 of 2015-2016: referred to Codes; A5498 of 2017-18: passed the Assembly   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect immediately.
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STATE OF NEW YORK ________________________________________________________________________ 1261 2019-2020 Regular Sessions IN ASSEMBLY January 14, 2019 ___________ Introduced by M. of A. BRONSON -- read once and referred to the Commit- tee on Labor AN ACT to amend the labor law, in relation to hours, wages and supple- ments in contracts for public work The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 2 of section 220 of the labor law, as amended 2 by chapter 678 of the laws of 2007, is amended to read as follows: 3 2. [ Each] Every contract [ to which the state or a public benefit4 corporation or a municipal corporation or a commission appointed pursu-5 ant to law is a party, and any contract for public work entered into by6 a third party acting in place of, on behalf of and for the benefit of7 such public entity pursuant to any lease, permit or other agreement8 between such third party and the public entity, and which may involve9 the employment of laborers, workers or mechanics] for public work shall 10 contain a stipulation that no laborer, worker or mechanic in the employ 11 of the contractor, subcontractor or other person doing or contracting to 12 do the whole or a part of the work contemplated by the contract shall be 13 permitted or required to work more than eight hours in any one calendar 14 day or more than five days in any one week except in cases of extraor- 15 dinary emergency including fire, flood or danger to life or property. No 16 such person shall be so employed more than eight hours in any day or 17 more than five days in any one week except in such emergency. Extraor- 18 dinary emergency within the meaning of this section shall be deemed to 19 include situations in which sufficient laborers, workers and mechanics 20 cannot be employed to carry on public work expeditiously as a result of 21 such restrictions upon the number of hours and days of labor and the 22 immediate commencement or prosecution or completion without undue delay 23 of the public work is necessary in the judgment of the commissioner for 24 the preservation of the contract site and for the protection of the life 25 and limb of the persons using the same. Upon the application of any EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04725-01-9A. 1261 2 1 person interested, the commissioner shall make a determination as to 2 whether or not on any public project or on all public projects in any 3 area of this state, sufficient laborers, workers and mechanics of any or 4 all classifications can be employed to carry on work expeditiously if 5 their labor is restricted to eight hours per day and five days per week, 6 and in the event that the commissioner determines that there are not 7 sufficient workers, laborers and mechanics of any or all classifications 8 which may be employed to carry on such work expeditiously if their labor 9 is restricted to eight hours per day and five days per week, and the 10 immediate commencement or prosecution or completion without undue delay 11 of the public work is necessary in the judgment of the commissioner for 12 the preservation of the contract site and for the protection of the life 13 and limb of the persons using the same, the commissioner shall grant a 14 dispensation permitting all laborers, workers and mechanics, or any 15 classification of such laborers, workers and mechanics, to work such 16 additional hours or days per week on such public project or in such 17 areas the commissioner shall determine. Whenever such a dispensation is 18 granted, all work in excess of eight hours per day and five days per 19 week shall be considered overtime work, and the laborers, workers and 20 mechanics performing such work shall be paid a premium wage commensurate 21 with the premium wages prevailing in the area in which the work is 22 performed. No such dispensation shall be effective with respect to any 23 public work unless and until the department of jurisdiction, as defined 24 in this section, certifies to the commissioner that such public work is 25 of an important nature and that a delay in carrying it to completion 26 would result in serious disadvantage to the public. Time lost in any 27 week because of inclement weather by employees engaged in the 28 construction, reconstruction and maintenance of highways outside of the 29 limits of cities and villages may be made up during that week and/or the 30 succeeding three weeks. 31 § 2. Subdivision 5 of section 220 of the labor law is amended by 32 adding four new paragraphs m, n, o and p to read as follows: 33 m. For the purposes of this article, "public work" means any of the 34 following: 35 (i) Construction paid for in whole or in part out of public funds; 36 (ii) Construction work performed under private contract when all of 37 the following conditions exist: 38 (A) The construction contract is between private parties; 39 (B) The property subject to the construction contract is privately 40 owned, but upon completion of the construction work, any portion of the 41 property is leased or will be leased to the state or any public entity, 42 and one of the following conditions exist: 43 (1) The public entity entered into or bargained for the lease agree- 44 ment prior to the construction contract; or 45 (2) The construction work is performed according to plans, specifica- 46 tions, or criteria furnished by the public entity, and the lease agree- 47 ment between the lessor and public entity, as lessee, is entered into 48 during, or upon completion of, the construction work, or within six 49 months following completion of the construction work; or 50 (iii) Construction work performed on property owned by a public entity 51 in whole or in part or will be owned or maintained by a public entity in 52 whole or in part upon completion of the project. 53 (iv) For the purposes of this article, "public work" shall not mean 54 any of the following: 55 (A) Construction work on one or two family dwellings where the proper- 56 ty is the owner's primary residence or construction work done on proper-A. 1261 3 1 ty where the owner of the property owns no more than four dwelling 2 units; 3 (B) Construction work performed under a contract with a non-profit as 4 defined in section one hundred two of the not-for-profit corporation law 5 where the value of the public funds provided to the non-profit for the 6 project is less than one hundred thousand dollars and the non-profit has 7 gross annual revenue and support less than one million dollars; or 8 (C) Construction work performed on a multiple dwelling where no less 9 than seventy-five percent of the residential units are affordable for 10 households up to sixty percent of the area median income, adjusted for 11 family size, as calculated by the United States department of housing 12 and urban development, provided however, that any construction performed 13 on non-residential space in connection with a multiple dwelling project 14 shall be considered public work if it meets any of the criteria in this 15 paragraph. Further, any construction work performed on a project eligi- 16 ble for benefits under section four hundred twenty-one-a of the real 17 property tax law shall not be considered public work for the purposes of 18 this article. 19 n. "Paid for in whole or in part out of public funds" means all of the 20 following: 21 (i) The payment of money or the equivalent of money, including the 22 issuance of bonds and grants, by the state or a public entity, or a 23 third party acting on behalf of and for the benefit of the state or 24 public entity, directly to or on behalf of the public works contractor, 25 subcontractor, or developer. 26 (ii) Performance of construction work by the state or any public enti- 27 ty in the execution of the project. 28 (iii) Transfer by the state or a public entity of an asset of value 29 for less than fair market value. 30 (iv) Fees, costs, rents, insurance or bond premiums, loans, interest 31 rates, taxes, or other obligations that would normally be required in 32 the execution of the project, that are paid, reduced, charged at less 33 than fair market value, waived, or forgiven by the state or public enti- 34 ty. 35 (v) Money loaned by the state or public entity that is to be repaid on 36 a contingent basis. 37 (vi) Credits that are applied by the state or public entity against 38 repayment obligations to the state or public entity. 39 o. "Public entity" includes, but is not limited to, the state, a 40 local development corporation as defined in subdivision eight of section 41 eighteen hundred one of the public authorities law or section fourteen 42 hundred eleven of the not-for-profit corporation law, municipal corpo- 43 ration as defined in section one hundred nineteen-n of the general 44 municipal law, industrial development agencies formed pursuant to arti- 45 cle eighteen-A of the general municipal law or industrial development 46 authorities formed pursuant to article eight of the public authorities 47 law, educational corporation established under article fifty-six of the 48 education law, commission appointed pursuant to law, as well as state, 49 local and interstate and international authorities as defined in section 50 two of the public authorities law; and shall include any trust created 51 by any such entities. 52 p. (i) "Construction" includes, but is not limited to, demolition, 53 reconstruction, excavation, rehabilitation, repair, installation, reno- 54 vation, alteration, and custom fabrication. "Construction" also includes 55 work preformed during the design and preconstruction phases of 56 construction, including but not limited to, inspection and land survey-A. 1261 4 1 ing work and work performed during the post-construction phases of 2 construction, including, but not limited to, all cleanup work at the 3 jobsite. "Construction" also includes the delivery to and hauling from 4 the jobsite of aggregate supply construction materials, such as sand, 5 gravel, stone, dirt, fill, as well as any necessary return hauls, wheth- 6 er empty or loaded. 7 (ii) For the purposes of this article, "custom fabrication" means the 8 fabrication and all drafting related to the fabrication of all masonry 9 panels, woodwork, cases, cabinets, or counters, and the fabrication of 10 plumbing, heating, cooling, ventilation, or exhaust duct systems, and 11 mechanical insulation solely and specifically designed and engineered 12 for installation in the construction, repair, or renovation of a build- 13 ing, regardless of where the custom fabrication is performed. The appli- 14 cable prevailing wage for any off-site custom fabrication work shall be 15 the on-site prevailing wage for the public work site. 16 § 3. The labor law is amended by adding a new section 224-a to read as 17 follows: 18 § 224-a. Stop-work orders. Where a complaint is received pursuant to 19 this article, or where the fiscal officer upon his or her own investi- 20 gation, finds cause to believe that any person, in connection with the 21 performance of any contract for public work, has substantially and mate- 22 rially failed to comply with or intentionally evaded the provisions of 23 this article, the commissioner may notify such person in writing of his 24 or her intention to issue a stop-work order. Such notice shall (i) be 25 served in a manner consistent with section three hundred eight of the 26 civil practice law and rules; (ii) notify such person of his or her 27 right to a hearing; and (iii) state the factual basis upon which the 28 commissioner has based his or her decision to issue a stop-work order. 29 Any documents, reports, or information that form a basis for such deci- 30 sion shall be provided to such person within a reasonable time before 31 the hearing. Such hearing shall be expeditiously conducted. 32 Following the hearing, if the commissioner issues a stop-work order, 33 it shall be served by regular mail, and a second copy may be served by 34 telefacsimile or by electronic mail, with service effective upon receipt 35 of any of such order. Such stop-work order shall also be served with 36 regard to a worksite by posting a copy of such order in a conspicuous 37 location at the worksite. The order shall remain in effect until the 38 commissioner directs that the stop-work order be removed, upon a final 39 determination on the complaint or where such failure to comply or evade 40 has been deemed corrected. If the person against whom such order is 41 issued shall within thirty days after issuance of the stop-work order 42 makes an application in affidavit form for a redetermination review of 43 such order the commissioner shall make a decision in writing on the 44 issues raised in such application. The commissioner may direct a condi- 45 tional release from a stop-work order upon a finding that such person 46 has taken meaningful and good faith steps to comply with the provisions 47 of this article. 48 § 4. This act shall take effect immediately.