STATE OF NEW YORK
________________________________________________________________________
6266--D
2019-2020 Regular Sessions
IN SENATE
May 31, 2019
___________
Introduced by Sens. BIAGGI, ADDABBO, BAILEY, BENJAMIN, BROOKS, CARLUCCI,
COMRIE, GAUGHRAN, GIANARIS, GOUNARDES, HARCKHAM, HOYLMAN, JACKSON,
KAMINSKY, KAPLAN, KAVANAGH, KENNEDY, LIU, MARTINEZ, MAYER, METZGER,
MYRIE, PARKER, PERSAUD, RAMOS, RIVERA, SALAZAR, SANDERS, SAVINO,
SEPULVEDA, SERRANO, SKOUFIS, STAVISKY, THOMAS -- read twice and
ordered printed, and when printed to be committed to the Committee on
Labor -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- committee discharged,
bill amended, ordered reprinted as amended and recommitted to said
committee -- recommitted to the Committee on Labor in accordance with
Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the labor law, in relation to enacting the "healthy
terminals act"
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "healthy
2 terminals act".
3 § 2. The article heading of article 9 of the labor law, as added by
4 chapter 777 of the laws of 1971, is amended to read as follows:
5 PREVAILING WAGE FOR BUILDING SERVICE EMPLOYEES AND COVERED AIRPORT
6 WORKERS
7 § 3. Subdivisions 1, 4 and 8 of section 230 of the labor law, subdivi-
8 sion 1 as amended by chapter 542 of the laws of 1984, subdivision 4 as
9 amended by chapter 678 of the laws of 2007, and subdivision 8 as added
10 by chapter 777 of the laws of 1971, are amended and four new subdivi-
11 sions 1-a, 15, 16 and 17 are added to read as follows:
12 1. "Building service employee" or "service employee" means any person
13 performing work in connection with the care or maintenance of an exist-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13042-11-0
S. 6266--D 2
1 ing building, or in connection with the transportation of office furni-
2 ture or equipment to or from such building, or in connection with the
3 transportation and delivery of fossil fuel to such building, for a
4 contractor under a contract with a public agency which is in excess of
5 one thousand five hundred dollars and the principal purpose of which is
6 to furnish services through the use of building service employees.
7 "Building service employee" or "service employee" includes, but is not
8 limited, to, watchman, guard, doorman, building cleaner, porter, handy-
9 man, janitor, gardener, groundskeeper, stationary fireman, elevator
10 operator and starter, window cleaner, and occupations relating to the
11 collection of garbage or refuse, and to the transportation of office
12 furniture and equipment, and to the transportation and delivery of
13 fossil fuel but does not include clerical, sales, professional, techni-
14 cian and related occupations.
15 "Building service employee" or "service employee" also does not
16 include any employee to whom the provisions of articles eight and
17 eight-a of this chapter are applicable.
18 1-a. "Employee" means a building service employee or a covered airport
19 worker.
20 4. "Contractor" means any employer who employs employees to perform
21 building service work under a contract with a public agency and shall
22 include any of the contractor's subcontractors. "Contractor" shall also
23 include any covered airport employer as such term is defined in this
24 section.
25 8. "Fiscal officer" means the industrial commissioner, except for
26 building service work performed by or on behalf of a city, or work
27 involving the employment of covered airport workers at a covered airport
28 location located in a city with a population of one million or more, in
29 which case "fiscal officer" means the comptroller or other analogous
30 officer of such city.
31 15. "Covered airport location" means any airport operating under the
32 jurisdiction of the Port Authority of New York and New Jersey within the
33 state.
34 16. "Covered airport worker" means any person employed by a covered
35 airport employer to perform work at a covered airport location provided
36 at least one-half of the employee's time during any workweek is
37 performed at a covered airport location. "Covered airport worker" shall
38 not include any person employed in an executive, administrative, or
39 professional capacity as defined in 29 U.S.C. 213 (a)(1). "Covered
40 airport worker" does not include any employee to whom the provisions of
41 article eight or eight-A of this chapter are applicable.
42 17. "Covered airport employer" means any person, corporation, limited
43 liability company, or association employing any covered airport worker
44 in an occupation, industry, trade, business or service. The term
45 "covered airport employer" shall not include a public agency.
46 § 4. The labor law is amended by adding a new section 231-a to read as
47 follows:
48 § 231-a. Prevailing wage for covered airport workers. 1. Notwithstand-
49 ing any other provision of law, rule, or regulation to the contrary, as
50 used in this section, the term "wage" shall mean: (a) basic hourly cash
51 rate of pay; and (b) supplements. The term "supplements" shall mean
52 fringe benefits including medical or hospital care, pensions on retire-
53 ment or death, compensation for injuries or illness resulting from occu-
54 pational activity, or insurance to provide any of the foregoing, unem-
55 ployment benefits, life insurance, disability and sickness insurance,
56 accident insurance, and other bona fide fringe benefits not otherwise
S. 6266--D 3
1 required by federal, state or local law to be provided by a covered
2 airport employer.
3 2. Not earlier than September first, two thousand twenty-one, every
4 covered airport employer shall pay a covered airport worker working at a
5 covered airport location a wage of not less than the prevailing wage in
6 the locality for the craft, trade, or occupation of such covered airport
7 worker.
8 3. The obligation of a covered airport employer to pay prevailing
9 supplements may be discharged by furnishing any equivalent combinations
10 of fringe benefits or by making equivalent or differential payments in
11 cash under rules and regulations established by the fiscal officer.
12 4. Notwithstanding any other provisions of law, rule, or regulation to
13 the contrary, for the purposes of this section "prevailing wage" shall
14 mean the wage determined by the fiscal officer to be prevailing for the
15 various classes of covered airport workers in the locality; provided,
16 however, that in no event shall the prevailing wage applicable to a
17 covered airport worker on and after September first, two thousand twen-
18 ty-one and every year thereafter be less than the following: (a) any
19 otherwise applicable minimum wage rate established through a policy of
20 the Port Authority of New York and New Jersey; and
21 (b) an amount of wages or supplements equal to the rate for health and
22 welfare for all occupations, designated by the fiscal officer based on
23 the determinations made by the federal department of labor pursuant to
24 the McNamara-O'Hara Service Contract Act of 1965 41 U.S.C. 6701 et seq
25 for the geographic region in which the covered airport location is
26 located and in effect on the date of the designation by the fiscal offi-
27 cer.
28 5. On or before September first, two thousand twenty-one and each
29 subsequent September first, the fiscal officer shall designate the wage
30 and supplemental benefits rate required under this section by classi-
31 fication and region in which each covered airport is located. The fiscal
32 officer shall publicly post such designated wage rate.
33 6. Nothing in this article shall be deemed to alter or limit any
34 employer's obligation to pay any otherwise applicable prevailing wage
35 under any other provision of this article or article eight of this chap-
36 ter.
37 § 5. The section heading of section 231 of the labor law, as added by
38 chapter 777 of the laws of 1971, is amended to read as follows:
39 Prevailing wage for building service employees.
40 § 6. Subdivisions 1 and 2 of section 233 of the labor law, as added by
41 chapter 777 of the laws of 1971, are amended to read as follows:
42 1. In all cases where service work is being performed pursuant to a
43 contract therefor, or where work is being performed pursuant to a
44 contract involving the employment of covered airport workers, the
45 contractor shall keep original payrolls or transcripts thereof,
46 subscribed and confirmed by him as true, under penalties of perjury,
47 showing the hours and days worked by each employee, the craft, trade or
48 occupation at which he was employed, and the wages paid.
49 2. Where the wages paid include sums which are not paid directly to
50 the [workmen] employees weekly and which are expended for supplements,
51 the records required to be maintained shall include a record of such
52 hourly payment on behalf of such employees, the supplement for which
53 such payment has been made, and the name and address of the person to
54 whom such payment has been made. In all such cases, the contractor shall
55 keep a true and inscribed copy of the agreement under which such
S. 6266--D 4
1 payments are made, a record of all net payments made thereunder, and a
2 list of all persons for whom such payments are made.
3 § 7. Paragraphs (a) and (c) of subdivision 1 of section 234 of the
4 labor law, as added by chapter 777 of the laws of 1971, are amended and
5 a new paragraph (e-1) is added to read as follows:
6 (a) to cause an investigation to be made to determine the wages
7 prevailing in any locality in all crafts, trades and occupations
8 involved in service work or work involving the employment of covered
9 airport workers; in making such investigation, the fiscal officer may
10 utilize wage and fringe benefit data from various sources including, but
11 not limited to, data and determinations of federal, state or other
12 governmental agencies;
13 (c) to examine the books, documents and records pertaining to the
14 wages paid to, and the hours of work performed by, [service] employees;
15 (e-1) to make a classification by craft, trade or other generally
16 recognized occupational category of the covered airport workers and to
17 determine whether such work has been performed by the employees in such
18 classification;
19 § 8. Subdivisions 1 and 3 of section 235 of the labor law, as added by
20 chapter 777 of the laws of 1971, are amended to read as follows:
21 1. Whenever the fiscal officer has reason to believe that [a service]
22 an employee has been paid less than the wages stipulated in the
23 contract, or if such contract has no wage schedule attached thereto and
24 the fiscal officer has reason to believe that [a service] an employee
25 has been paid less than the wages prevailing for his craft, trade or
26 occupation, the fiscal officer may, and upon receipt of a written
27 complaint from an employee employed thereon, shall conduct a special
28 investigation to determine the facts relating thereto.
29 3. If, despite the requirements of law, the contract for the service
30 work or work involving the employment of covered airport workers has
31 been awarded without the annexation thereto of the schedule of wages
32 provided for in this article, the fiscal officer shall determine in the
33 proceeding before him the wages prevailing at the time the work was
34 performed for the crafts, trades or occupations of the employees
35 involved.
36 § 9. Section 236 of the labor law, as added by chapter 777 of the laws
37 of 1971, is amended to read as follows:
38 § 236. Failure to protest underpayments. Notwithstanding any incon-
39 sistent provision of this chapter or of any other general, special or
40 local law, ordinance, charter or administrative code, [a service] an
41 employee shall not be barred from his right to recover the difference
42 between the amount actually paid to him and the amount which should have
43 been paid to him pursuant to an order entered under the provisions of
44 this article because of the prior receipt by him without protest of
45 wages paid or on account of his failure to state orally or in writing
46 upon any payroll or receipt which he is required to sign that the wages
47 received by him are received under protest, or on account of his failure
48 to indicate his protest against the amount, or that the amount so paid
49 does not constitute payment in full of wages due him for the period
50 covered by such payment.
51 § 10. Subdivisions 1 and 4 of section 237 of the labor law, as amended
52 by chapter 698 of the laws of 1988, are amended to read as follows:
53 1. Subcontractors engaged for service work, or for work involving the
54 employment of covered airport workers, by a contractor or its subcon-
55 tractor shall, upon receipt from the contractor or its subcontractor of
56 the schedule of wages and supplements specified in the contract, provide
S. 6266--D 5
1 to the contractor or its subcontractor a verified statement attesting
2 that the subcontractor has received and reviewed such schedule of wages
3 and supplements, and agrees that it will pay the applicable prevailing
4 wages and will pay or provide the supplements specified therein. Such
5 verified statement shall be filed in the manner described in subdivision
6 three of this section, provided, however, that in the case of contracts
7 for work involving the employment of covered airport workers, such veri-
8 fied statement shall be subject to inspection upon request of the fiscal
9 officer. It shall be a violation of this article for any contractor or
10 its subcontractor to fail to provide for its subcontractor a copy of the
11 schedule of wages and supplements specified in the contract.
12 4. If any interested person shall have previously filed a protest in
13 writing objecting to the payment to any contractor or subcontractor to
14 the extent of the amount or amounts due or to become due to him for
15 daily or weekly wages for labor performed on the work for which such
16 contract was entered into, or if for any other reason it may be deemed
17 advisable, the comptroller of the state or the financial officer of the
18 public agency or other officer or person charged with the custody and
19 disbursement of the state or corporate funds applicable to the contract
20 for such work, may deduct from the whole amount of any payment on
21 account thereof the sum or sums admitted by any contractor or subcon-
22 tractor in such statement or statements as filed to be due and owing by
23 him or her on account of labor performed on such work before making
24 payment of the amount certified for payment in any estimate or voucher,
25 and may withhold the amount so deducted for the benefit of the [service]
26 employees whose wages are unpaid as shown by the verified statements
27 filed by any contractor or subcontractor, and may pay directly to any
28 person the amount or amounts shown by the statements filed as hereinbe-
29 fore required to be due to him or her or his or her duly authorized
30 collective bargaining labor organization receiving such payment to the
31 extent of the amount thereof.
32 § 11. Subdivision 2 of section 238 of the labor law, as added by chap-
33 ter 777 of the laws of 1971, is amended to read as follows:
34 2. When a contract for service work or work involving the employment
35 of covered airport workers contains as part thereof a schedule of wages
36 as provided for in this article, any contractor who, after entering into
37 such contract, and any subcontractor of such contractor who fails to pay
38 to any [service] employee the wages stipulated in such wage schedule is
39 guilty of a misdemeanor and upon conviction shall be punished for a
40 first offense by a fine of five hundred dollars or by imprisonment for
41 not more than thirty days or by both fine and imprisonment; for a second
42 offense by a fine of one thousand dollars, and in addition thereto the
43 contract on which the violation has occurred shall be forfeited; and no
44 such contractor shall be entitled to receive any sum, nor shall any
45 officer, agent or employee of the contracting public agency pay any such
46 sum or authorize its payment from the funds under his charge or control
47 to such contractor for work done upon the contract on which the contrac-
48 tor has been convicted of a second offense. If the contractor or
49 subcontractor is a corporation, any officer of such corporation who
50 knowingly permits the corporation to fail to make such payment shall
51 also be guilty of a misdemeanor and the criminal and civil penalties
52 herein shall attach to such officer upon conviction.
53 § 12. Section 239 of the labor law, as added by chapter 777 of the
54 laws of 1971, subdivisions 1, 2, and 3 as amended by chapter 770 of the
55 laws of 1986, is amended to read as follows:
S. 6266--D 6
1 § 239. Provisions in contracts prohibiting discrimination on account
2 of race, creed, color, national origin, age or sex. Every contract for
3 service work or work involving the employment of covered airport workers
4 shall contain provisions by which the contractor agrees:
5 (1) that in the hiring of employees for the performance of work under
6 the contract or any subcontract thereunder within the territorial limits
7 of this state, no contractor, subcontractor, nor any person acting on
8 behalf of such contractor or subcontractor, shall by reason of race,
9 creed, color, national origin, age, sex or disability, discriminate
10 against any citizen of the state of New York who is qualified and avail-
11 able to perform the work to which the employment relates;
12 (2) that no contractor, subcontractor, nor any person on his behalf
13 shall, in any manner, discriminate against or intimidate any employee
14 hired for the performance of work under the contract on account of race,
15 creed, color, national origin, age, sex or disability;
16 (3) that there may be deducted from the amount payable to the contrac-
17 tor by the public agency under the contract for service work a penalty
18 of fifty dollars for each person for each day during which such person
19 was discriminated against or intimidated in violation of the provisions
20 of the contract;
21 (4) that the contract for service work may be cancelled or terminated
22 by the public agency, and all moneys due or to become due thereunder may
23 be forfeited for a second or any subsequent violation of the terms or
24 conditions of this section of the contract.
25 § 13. Section 239-a of the labor law, as added by chapter 777 of the
26 laws of 1971, is amended to read as follows:
27 § 239-a. Enforcement of article. 1. If the fiscal officer, as defined
28 herein, finds that any contractor on service work fails to comply with
29 or evades the provisions of this article, he shall present evidence of
30 such noncompliance or evasion to the public agency having charge of such
31 work for enforcement. Where such evidence indicates a noncompliance or
32 evasion on the part of a subcontractor, the contractor shall be respon-
33 sible for such noncompliance or evasion. It shall be the duty of the
34 public agency in charge of such service work to enforce the provisions
35 of this article.
36 2. If the fiscal officer, as defined herein, finds that any contractor
37 on work involving the employment of covered airport workers fails to
38 comply with or evades the provisions of this article, it shall be the
39 duty of the fiscal officer to enforce the provisions of this article.
40 § 14. If any provision of this article or the application thereof to
41 any person, employer, occupation or circumstance is held invalid, the
42 remainder of the article and the application of such provision to other
43 persons, employees, occupations, or circumstances shall not be affected
44 thereby.
45 § 15. This act shall take effect on January 1, 2021. Effective imme-
46 diately, the addition, amendment and/or repeal of any rule or regulation
47 necessary for the implementation of this act on its effective date are
48 authorized to be made and completed on or before such effective date.
