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A05498 Summary:

BILL NOA05498A
 
SAME ASSAME AS S02975-A
 
SPONSORBronson
 
COSPNSRTitus, 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
 
MLTSPNSRByrne, 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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A05498 Memo:

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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A05498 Text:



 
                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  benefit
     4  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  by
     6  a  third  party  acting in place of, on behalf of and for the benefit of
     7  such public entity pursuant to any  lease,  permit  or  other  agreement
     8  between  such  third  party and the public entity, and which may involve
     9  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.
                                                                   LBD06799-04-7

        A. 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; or

        A. 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.
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