§ 198-E — Construction industry wage theft

§ 198-e. Construction industry wage theft. 1. A contractor making or\ntaking a construction contract shall be liable for any debt resulting\nfrom an action under section one hundred ninety-eight of this article,\nowed to an employee or third party on the employee's behalf, incurred by\na subcontractor at any tier acting under, by, or for the contractor or\nits subcontractors for the employee's performance of labor. The\nprovisions of this section shall not be deemed to limit the liability of\na subcontractor under section one hundred ninety-eight of this article.\n 2. No agreement or release by an employee or subcontractor to waive\nliability of a contractor under this section shall be valid except as\notherwise provided herein. The provisions of this section shall not be\ndeemed to impair the rights of a contractor to maintain an action\nagainst a subcontractor for amounts for owed wages that are paid by a\ncontractor pursuant to this section.\n 3. Notwithstanding any other provision of law, the remedies available\nfor a claim pursuant to subdivision one of this section shall only be\ncivil and administrative actions.\n 4. In the case of a private civil action by an employee, such employee\nmay designate any person, organization or collective bargaining agent\nauthorized to file a complaint with the commissioner pursuant to section\none hundred ninety-six-a of this article, to make a claim pursuant to\nthis section on his or her behalf.\n 5. In the case of an action against a subcontractor, the contractor\nshall be considered jointly and severally liable for any unpaid wages,\nbenefits, wage supplements, and any other remedies available pursuant to\nthe requirements of section one hundred ninety-eight of this article.\n 6. Nothing herein shall preclude the attorney general from bringing a\ncivil action to collect unpaid wages and penalties on behalf of\nemployees pursuant to this section.\n 7. A contractor or any other person shall not evade, or commit any act\nthat negates, the requirements of this section, provided, however, that\nthis section shall not be deemed to prohibit a contractor or\nsubcontractor from establishing by contract or enforcing any other\nlawful remedies against a subcontractor it hires for liability created\nby violation of this section, provided that such contract or arrangement\ndoes not diminish the right of employees to bring an action under the\nprovisions of this section.\n 8. As used in this section:\n a. "Construction contract" means a written or oral agreement for the\nconstruction, reconstruction, alteration, maintenance, moving or\ndemolition of any building, structure or improvement, or relating to the\nexcavation of or other development or improvement to land. For purposes\nof this section, a construction contract shall not include: any contract\nwhich is subject to article eight of this chapter; a home improvement\ncontract for the performance of a home improvement between a home\nimprovement contractor and the owner of an owner-occupied dwelling; and\na home construction contract for one- or two-family dwelling units\nexcept where such contract or contracts results in the construction of\nmore than ten one- or two-family owner-occupied dwellings at one project\nsite annually.\n b. "Contractor" means any person, firm, partnership, corporation,\nassociation, company, organization or other entity, including a\nconstruction manager, general or prime contractor, joint venture, or any\ncombination thereof, which enters into a construction contract with an\nowner.\n c. "Owner" means any person, firm, partnership, corporation, company,\nassociation or other organization or other entity, or a combination of\nany thereof, (with an ownership interest, whether the interest or estate\nis in fee, as vendee under a contract to purchase, as lessee or another\ninterest or estate less than fee) that causes a building, structure or\nimprovement, new or existing, to be constructed, altered, repaired,\nmaintained, moved or demolished or that causes land to be excavated or\notherwise developed or improved.\n d. "Subcontractor" means any person, firm, partnership, corporation,\ncompany, association, organization or other entity, or any combination\nthereof, which is a party to a contract with a contractor, and/or party\nto a contract with the contractor's subcontractors at any tier to\nperform any portion of work within the scope of the contractor's\nconstruction contract with the owner, including where the subcontractor\nhas no direct privity of contract with the contractor.\n 9. A contractor's liability pursuant to the provisions of this section\nshall be applicable only for claims occurring no earlier than three\nyears prior to the initiation of such claim in a court of competent\njurisdiction or the commencement of a civil action brought forth by the\nattorney general or department. Before bringing a civil action pursuant\nto this section, an employee, or third party on such employee's behalf,\nmust give the contractor notice of the alleged violation. The notice\nneed only describe the general nature of the claim and shall not limit\nthe liability of the contractor or preclude subsequent amendments of an\naction to encompass additional employees employed by the subcontractor.\nAn employee, or third party on such employee's behalf, may not bring a\ncivil action until ten business days after giving the contractor notice\nof the alleged violation and may not bring a civil action if the\ncontractor corrects the alleged violation. An employee, or third party\non such employee's behalf, is not required to give notice to a\ncontractor pursuant to this subdivision before bringing a civil action\npursuant to this section if any employee, or third party on any\nemployee's behalf, previously has given notice to such contractor of the\nsame alleged violation or a prior alleged violation by the same\nsubcontractor. The provisions of this section shall not be deemed to\ndiminish, impair, or otherwise infringe on any other rights of an\nemployee provided pursuant to this chapter, including the right of an\nemployee to bring an action against any employer under the provisions of\nsection one hundred ninety-eight of this article.\n 10. Nothing in this section shall be deemed to diminish the rights,\nprivileges, or remedies of any employee under any collective bargaining\nagreement. On behalf of an employee subject to a collective bargaining\nagreement, the provisions of this section may be waived by a collective\nbargaining agreement with a bona fide building and construction trade\nlabor organization which has established itself, and/or its affiliates,\nas the collective bargaining representative for persons performing work\non a project, provided that for such waiver to be valid, it shall\nexplicitly reference this section. Provided, however, that such waiver\nshall not diminish or impair the rights of an employee provided under\nany other section of this chapter.\n