|SAME AS||SAME AS S02975-A|
|COSPNSR||Titus, Mayer, Lifton, Bichotte, Perry, Santabarbara, Brindisi, Jenne, Glick, Carroll, Rozic, Pichardo, Braunstein, Rodriguez, Steck, Seawright, Nolan, Wallace, Ryan, Kim, Ortiz, Titone, Colton, Skoufis, Hyndman, Abbate, Barnwell, DenDekker, Abinanti, Cusick, Woerner, Rosenthal L, Brabenec, Paulin, Sepulveda, De La Rosa, Magnarelli, Pheffer Amato, Miller MG, Walker, Joyner, Benedetto, Quart, Simotas, Vanel, Niou, Blake, D'Urso, Jaffee, Stirpe, Errigo, Pellegrino, Ramos, Richardson, Dinowitz, Gottfried, Jones, Zebrowski, Solages, Mosley, Lupardo, Rosenthal D, Fahy, Hunter|
|MLTSPNSR||Byrne, Epstein, 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: A5498A SPONSOR: Bronson
TITLE OF BILL: An act to amend the labor law, in relation to hours, wages and supplements 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 PROVISIONS: Sections 1-4 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. Provides for an exemption for homeowners, construction performed by a nonprofit where they receive less than $100,000 in public funding and the gross annual income of such non-profit is less than $1 million, affordable housing where no less than 75 percent of the units are affordable for households up to 60 percent of the area median income, and projects eligible for benefits under section 421-a of the real prop- erty tax law. Defines "paid for in whole or in part out of public funds" to include the payment of money, issuance of bonds and grants by the state, 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. Defines a "public entity" to include, but not be limited to, the state, a local development corporation, municipal corporation, industrial development agencies, industrial development authority, educational corporation established under article fifty-six of the education law, commission appointed pursuant to law, state, local and interstate and international authorities, and any trust created by any such entities. Defines "construction" and "custom fabrication." Section 3 of the bill amends the labor law by adding a new section 224-a to allow the commissioner to notify and issue a stop-work order when there is an alleged violation of this article and provides an appeal process. Section 4 sets the effective date.   DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE): Makes technical changes and includes an exemption for homeowners, certain non-profits, certain affordable housing projects, and projects eligible for benefits provided under section 421-a of the real property taxation law.   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.   LEGISLATIVE HISTORY: This is a new bill.   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect immediately.
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STATE OF NEW YORK ________________________________________________________________________ 5498--A 2017-2018 Regular Sessions IN ASSEMBLY February 9, 2017 ___________ Introduced by M. of A. BRONSON, TITUS, MAYER, MOYA, LIFTON, BICHOTTE, PERRY, SANTABARBARA, BRINDISI, JENNE, GLICK, CARROLL, ROZIC, PICHARDO, BRAUNSTEIN, RODRIGUEZ, STECK, SEAWRIGHT, NOLAN, WALLACE, RYAN, KIM, ORTIZ, TITONE, GJONAJ, COLTON, SKOUFIS, HYNDMAN, ABBATE, BARNWELL, DenDEKKER, ABINANTI, CUSICK, WOERNER, ROSENTHAL, BRABENEC, PAULIN, SEPULVEDA, DE LA ROSA, MAGNARELLI, SIMANOWITZ, PHEFFER AMATO, M. G. MILLER, WALKER, JOYNER, HARRIS, BENEDETTO, QUART, SIMOTAS, VANEL, NIOU, BLAKE, D'URSO, JAFFEE, STIRPE, ERRIGO, PELLEGRINO, RAMOS, RICHARDSON -- Multi-Sponsored by -- M. of A. BYRNE, LENTOL, SIMON -- read once and referred to the Committee on Labor -- reported and referred to the Committee on Codes -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee 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- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06799-04-7A. 5498--A 2 1 dinary emergency including fire, flood or danger to life or property. No 2 such person shall be so employed more than eight hours in any day or 3 more than five days in any one week except in such emergency. Extraor- 4 dinary emergency within the meaning of this section shall be deemed to 5 include situations in which sufficient laborers, workers and mechanics 6 cannot be employed to carry on public work expeditiously as a result of 7 such restrictions upon the number of hours and days of labor and the 8 immediate commencement or prosecution or completion without undue delay 9 of the public work is necessary in the judgment of the commissioner for 10 the preservation of the contract site and for the protection of the life 11 and limb of the persons using the same. Upon the application of any 12 person interested, the commissioner shall make a determination as to 13 whether or not on any public project or on all public projects in any 14 area of this state, sufficient laborers, workers and mechanics of any or 15 all classifications can be employed to carry on work expeditiously if 16 their labor is restricted to eight hours per day and five days per week, 17 and in the event that the commissioner determines that there are not 18 sufficient workers, laborers and mechanics of any or all classifications 19 which may be employed to carry on such work expeditiously if their labor 20 is restricted to eight hours per day and five days per week, and the 21 immediate commencement or prosecution or completion without undue delay 22 of the public work is necessary in the judgment of the commissioner for 23 the preservation of the contract site and for the protection of the life 24 and limb of the persons using the same, the commissioner shall grant a 25 dispensation permitting all laborers, workers and mechanics, or any 26 classification of such laborers, workers and mechanics, to work such 27 additional hours or days per week on such public project or in such 28 areas the commissioner shall determine. Whenever such a dispensation is 29 granted, all work in excess of eight hours per day and five days per 30 week shall be considered overtime work, and the laborers, workers and 31 mechanics performing such work shall be paid a premium wage commensurate 32 with the premium wages prevailing in the area in which the work is 33 performed. No such dispensation shall be effective with respect to any 34 public work unless and until the department of jurisdiction, as defined 35 in this section, certifies to the commissioner that such public work is 36 of an important nature and that a delay in carrying it to completion 37 would result in serious disadvantage to the public. Time lost in any 38 week because of inclement weather by employees engaged in the 39 construction, reconstruction and maintenance of highways outside of the 40 limits of cities and villages may be made up during that week and/or the 41 succeeding three weeks. 42 § 2. Subdivision 5 of section 220 of the labor law is amended by 43 adding four new paragraphs m, n, o and p to read as follows: 44 m. For the purposes of this article, "public work" means any of the 45 following: 46 (i) Construction paid for in whole or in part out of public funds; 47 (ii) Construction work performed under private contract when all of 48 the following conditions exist: 49 (A) The construction contract is between private parties; 50 (B) The property subject to the construction contract is privately 51 owned, but upon completion of the construction work, any portion of the 52 property is leased or will be leased to the state or any public entity, 53 and one of the following conditions exist: 54 (1) The public entity entered into or bargained for the lease agree- 55 ment prior to the construction contract; orA. 5498--A 3 1 (2) The construction work is performed according to plans, specifica- 2 tions, or criteria furnished by the public entity, and the lease agree- 3 ment between the lessor and public entity, as lessee, is entered into 4 during, or upon completion of, the construction work, or within six 5 months following completion of the construction work; or 6 (iii) Construction work performed on property owned by a public entity 7 in whole or in part or will be owned or maintained by a public entity in 8 whole or in part upon completion of the project. 9 (iv) For the purposes of this article, "public work" shall not mean 10 any of the following: 11 (A) Construction work on one or two family dwellings where the proper- 12 ty is the owner's primary residence or construction work done on proper- 13 ty where the owner of the property owns no more than four dwelling 14 units; 15 (B) Construction work performed under a contract with a non-profit as 16 defined in section one hundred two of the not-for-profit corporation law 17 where the value of the public funds provided to the non-profit for the 18 project is less than one hundred thousand dollars and the non-profit has 19 gross annual revenue and support less than one million dollars; or 20 (C) Construction work performed on a multiple dwelling where no less 21 than seventy-five percent of the residential units are affordable for 22 households up to sixty percent of the area median income, adjusted for 23 family size, as calculated by the United States department of housing 24 and urban development, provided however, that any construction performed 25 on non-residential space in connection with a multiple dwelling project 26 shall be considered public work if it meets any of the criteria in this 27 paragraph. Further, any construction work performed on a project eligi- 28 ble for benefits under section four hundred twenty-one-a of the real 29 property tax law shall not be considered public work for the purposes of 30 this article. 31 n. "Paid for in whole or in part out of public funds" means all of the 32 following: 33 (i) The payment of money or the equivalent of money, including the 34 issuance of bonds and grants, by the state or a public entity, or a 35 third party acting on behalf of and for the benefit of the state or 36 public entity, directly to or on behalf of the public works contractor, 37 subcontractor, or developer. 38 (ii) Performance of construction work by the state or any public enti- 39 ty in the execution of the project. 40 (iii) Transfer by the state or a public entity of an asset of value 41 for less than fair market value. 42 (iv) Fees, costs, rents, insurance or bond premiums, loans, interest 43 rates, taxes, or other obligations that would normally be required in 44 the execution of the project, that are paid, reduced, charged at less 45 than fair market value, waived, or forgiven by the state or public enti- 46 ty. 47 (v) Money loaned by the state or public entity that is to be repaid on 48 a contingent basis. 49 (vi) Credits that are applied by the state or public entity against 50 repayment obligations to the state or public entity. 51 o. "Public entity" includes, but is not limited to, the state, a 52 local development corporation as defined in subdivision eight of section 53 eighteen hundred one of the public authorities law or section fourteen 54 hundred eleven of the not-for-profit corporation law, municipal corpo- 55 ration as defined in section one hundred nineteen-n of the general 56 municipal law, industrial development agencies formed pursuant to arti-A. 5498--A 4 1 cle eighteen-a of the general municipal law or industrial development 2 authorities formed pursuant to article eight of the public authorities 3 law, educational corporation established under article fifty-six of the 4 education law, commission appointed pursuant to law, as well as state, 5 local and interstate and international authorities as defined in section 6 two of the public authorities law; and shall include any trust created 7 by any such entities. 8 p. (i) "Construction" includes, but is not limited to, demolition, 9 reconstruction, excavation, rehabilitation, repair, installation, reno- 10 vation, alteration, and custom fabrication. "Construction" also includes 11 work preformed during the design and preconstruction phases of 12 construction, including but not limited to, inspection and land survey- 13 ing work and work performed during the post-construction phases of 14 construction, including, but not limited to, all cleanup work at the 15 jobsite. "Construction" also includes the delivery to and hauling from 16 the jobsite of aggregate supply construction materials, such as sand, 17 gravel, stone, dirt, fill, as well as any necessary return hauls, wheth- 18 er empty or loaded. 19 (ii) For the purposes of this article, "custom fabrication" means the 20 fabrication and all drafting related to the fabrication of all masonry 21 panels, woodwork, cases, cabinets, or counters, and the fabrication of 22 plumbing, heating, cooling, ventilation, or exhaust duct systems, and 23 mechanical insulation solely and specifically designed and engineered 24 for installation in the construction, repair, or renovation of a build- 25 ing, regardless of where the custom fabrication is performed. The appli- 26 cable prevailing wage for any off-site custom fabrication work shall be 27 the on-site prevailing wage for the public work site. 28 § 3. The labor law is amended by adding a new section 224-a to read as 29 follows: 30 § 224-a. Stop-work orders. Where a complaint is received pursuant to 31 this article, or where the fiscal officer upon his or her own investi- 32 gation, finds cause to believe that any person, in connection with the 33 performance of any contract for public work, has substantially and mate- 34 rially failed to comply with or intentionally evaded the provisions of 35 this article, the commissioner may notify such person in writing of his 36 or her intention to issue a stop-work order. Such notice shall (i) be 37 served in a manner consistent with section three hundred eight of the 38 civil practice law and rules; (ii) notify such person of his or her 39 right to a hearing; and (iii) state the factual basis upon which the 40 commissioner has based his or her decision to issue a stop-work order. 41 Any documents, reports, or information that form a basis for such deci- 42 sion shall be provided to such person within a reasonable time before 43 the hearing. Such hearing shall be expeditiously conducted. 44 Following the hearing, if the commissioner issues a stop-work order, 45 it shall be served by regular mail, and a second copy may be served by 46 telefacsimile or by electronic mail, with service effective upon receipt 47 of any of such order. Such stop-work order shall also be served with 48 regard to a worksite by posting a copy of such order in a conspicuous 49 location at the worksite. The order shall remain in effect until the 50 commissioner directs that the stop-work order be removed, upon a final 51 determination on the complaint or where such failure to comply or evade 52 has been deemed corrected. If the person against whom such order is 53 issued shall within thirty days after issuance of the stop-work order 54 makes an application in affidavit form for a redetermination review of 55 such order the commissioner shall make a decision in writing on the 56 issues raised in such application. The commissioner may direct a condi-A. 5498--A 5 1 tional release from a stop-work order upon a finding that such person 2 has taken meaningful and good faith steps to comply with the provisions 3 of this article. 4 § 4. This act shall take effect immediately.