§ 220 — Hours, wages and supplements

New York § 220

• Jurisdiction: New York
• Law LAB: Labor
• Art. 8: Public Work

Text

§ 220. Hours, wages and supplements. 1. Eight hours shall constitute a\nlegal day's work for all classes of employees in this state except those\nengaged in farm and domestic service unless otherwise provided by law.\n 2. Each contract to which the state or a public benefit corporation or\na municipal corporation or a commission appointed pursuant to law is a\nparty, and any contract for public work entered into by a third party\nacting in place of, on behalf of and for the benefit of such public\nentity pursuant to any lease, permit or other agreement between such\nthird party and the public entity, and which may involve the employment\nof laborers, workers or mechanics shall contain a stipulation that no\nlaborer, worker or mechanic in the employ of the contractor,\nsubcontractor or other person doing or contracting to do the whole or a\npart of the work contemplated by the contract shall be permitted or\nrequired to work more than eight hours in any one calendar day or more\nthan five days in any one week except in cases of extraordinary\nemergency including fire, flood or danger to life or property. No such\nperson shall be so employed more than eight hours in any day or more\nthan five days in any one week except in such emergency. Extraordinary\nemergency within the meaning of this section shall be deemed to include\nsituations in which sufficient laborers, workers and mechanics cannot be\nemployed to carry on public work expeditiously as a result of such\nrestrictions upon the number of hours and days of labor and the\nimmediate commencement or prosecution or completion without undue delay\nof the public work is necessary in the judgment of the commissioner for\nthe preservation of the contract site and for the protection of the life\nand limb of the persons using the same. Upon the application of any\nperson interested, the commissioner shall make a determination as to\nwhether or not on any public project or on all public projects in any\narea of this state, sufficient laborers, workers and mechanics of any or\nall classifications can be employed to carry on work expeditiously if\ntheir labor is restricted to eight hours per day and five days per week,\nand in the event that the commissioner determines that there are not\nsufficient workers, laborers and mechanics of any or all classifications\nwhich may be employed to carry on such work expeditiously if their labor\nis restricted to eight hours per day and five days per week, and the\nimmediate commencement or prosecution or completion without undue delay\nof the public work is necessary in the judgment of the commissioner for\nthe preservation of the contract site and for the protection of the life\nand limb of the persons using the same, the commissioner shall grant a\ndispensation permitting all laborers, workers and mechanics, or any\nclassification of such laborers, workers and mechanics, to work such\nadditional hours or days per week on such public project or in such\nareas the commissioner shall determine. Whenever such a dispensation is\ngranted, all work in excess of eight hours per day and five days per\nweek shall be considered overtime work, and the laborers, workers and\nmechanics performing such work shall be paid a premium wage commensurate\nwith the premium wages prevailing in the area in which the work is\nperformed. No such dispensation shall be effective with respect to any\npublic work unless and until the department of jurisdiction, as defined\nin this section, certifies to the commissioner that such public work is\nof an important nature and that a delay in carrying it to completion\nwould result in serious disadvantage to the public. Time lost in any\nweek because of inclement weather by employees engaged in the\nconstruction, reconstruction and maintenance of highways outside of the\nlimits of cities and villages may be made up during that week and/or the\nsucceeding three weeks.\n 2-a. Any person contracting with the state or a public benefit\ncorporation, or a municipal corporation, or a commission appointed\npursuant to law that shall require more than eight hours work for a\nday's labor, unless otherwise permitted by law, is guilty of a\nmisdemeanor, and upon conviction thereof shall be punished in accordance\nwith the penal law for each offense.\n 3. (a) The wages to be paid for a legal day's work, as hereinbefore\ndefined, to laborers, workmen or mechanics upon such public works, shall\nbe not less than the prevailing rate of wages as hereinafter defined.\nServing laborers, helpers, assistants and apprentices shall not be\nclassified as common labor and shall be paid not less than the\nprevailing rate of wages as hereinafter defined. No employee shall be\ndeemed to be an apprentice unless he is individually registered in an\napprenticeship program which is duly registered with the commissioner of\nlabor in conformity with the provisions of article twenty-three of this\nchapter. The wages to be paid for a legal day's work, as hereinbefore\ndefined, to laborers, workmen or mechanics upon any material to be used\nupon or in connection therewith, shall be not less than the prevailing\nrate for a day's work in the same trade or occupation in the locality\nwithin the state where such public work on, about or in connection with\nwhich such labor is performed in its final or completed form is to be\nsituated, erected or used. Such contracts shall contain a provision that\neach laborer, workman or mechanic, employed by such contractor,\nsubcontractor or other person about or upon such public work, shall be\npaid the wages herein provided.\n (b) The supplements, as hereinafter defined, to be provided to\nlaborers, workmen or mechanics upon such public works, shall be in\naccordance with the prevailing practices in the locality, as hereinafter\ndefined. Serving laborers, helpers, assistants and apprentices shall\nnot be classified as common labor and shall be provided supplements in\naccordance with the prevailing practices as hereinafter defined. No\nemployee shall be deemed to be an apprentice unless he is individually\nregistered in an apprenticeship program which is duly registered with\nthe industrial commissioner in conformity with the provisions of article\ntwenty-three of this chapter. The supplements, as hereinafter defined,\nto be provided to laborers, workmen or mechanics upon any material to be\nused upon or in connection therewith, shall be in accordance with the\nprevailing practices in the same trade or occupation in the locality\nwithin the state where such public work on, about or in connection with\nwhich such labor is performed in its final or completed form is to be\nsituated, erected or used. Such contracts shall contain a provision that\neach laborer, workman or mechanic, employed by such contractor,\nsubcontractor or other person about or upon such public work, shall be\nprovided the supplements as required in this article.\n (c) It shall be the duty of the fiscal officer, as defined in this\nsection, to ascertain and determine the schedules of supplements to be\nprovided and wages to be paid workers, laborers and mechanics on such\npublic work, prior to the time of the advertisement for bids, and such\nschedules shall be annexed to and form a part of the specifications for\nthe work. Such fiscal officer shall file with the department having\njurisdiction such schedules prior to the time of the commencement of the\nadvertisement for bids on all public works proposed to be constructed.\nThe term "contract" as used in this article also shall include\nreconstruction and repair of any such public work, and any public work\nperformed under a lease, permit or other agreement pursuant to which the\ndepartment of jurisdiction grants the responsibility of contracting for\nsuch public work to any third party proposing to perform such work to\nwhich the provisions of this article would apply had the department of\njurisdiction contracted directly for its performance, or where there is\nno lease, permit or other agreement and ownership of a public work is\nintended to be assumed by such public entity at any time subsequent to\ncompletion of the public work.\n (d) (i) Any person that participates in a public works project in the\ncapacity of a contractor or subcontractor and who wilfully fails to pay\nor provide the prevailing rate of wage or supplements and:\n (1) such failure results in underpayments, which in the aggregate\namount to all workers employed by such person, results in an amount less\nthan twenty-five thousand dollars, shall be guilty of a class A\nmisdemeanor;\n (2) such failure results in underpayments, which in the aggregate\namount to all workers employed by such person, result in an amount\ngreater than twenty-five thousand dollars, that person shall be guilty\nof a class E felony;\n (3) such failure results in underpayments, which in the aggregate\namount to all workers employed by such person, result in an amount\ngreater than one hundred thousand dollars, that person shall be guilty\nof a class D felony; or\n (4) such failure results in underpayments, which in the aggregate\namount to all workers employed by such person, result in an amount\ngreater than five hundred thousand dollars, that person shall be guilty\nof a class C felony.\n (ii) Disposition for violations of this section shall be in accordance\nwith the penal law. Fines upon conviction for any violation of this\nsection shall be in accordance with the penal law.\n (iii) In addition to the penalties set forth above, any such person\nconvicted of a second offense under subparagraph (i) of this paragraph\nwithin five years shall disgorge profits and shall not be entitled to\nreceive any monies due and owing on the contract or subcontract; nor\nshall any officer, agent or employee of the department of jurisdiction\nor its financial officer pay to such person any such monies.\nNotwithstanding the foregoing, the department of jurisdiction may\nrelease monies due and owing on the contract or subcontract which have\nnot been withheld pursuant to section two hundred twenty-b of this\narticle for the sole purpose of satisfying the contractor's or\nsubcontractor's obligations under the contract or subcontract to third\nparties who were not themselves involved in the violations giving rise\nto the subsequent offense. For the purposes of this subdivision, third\nparties shall include, but not be limited to, contractors,\nsubcontractors, materialmen, and funds, plans, and programs providing\npension, health, and welfare benefits to workmen, laborers, and\nmechanics employed pursuant to such contract or subcontract. The\ndepartment of jurisdiction may release such monies upon the application\nof the contractor provided that no monies shall be released without the\nwritten approval of the fiscal officer or by order of a court of\ncompetent jurisdiction.\n (iv) In addition to the penalties set forth above, every contract for\na public work project shall contain a term stating that the filing of\npayrolls in a manner consistent with subdivision three-a of this section\nis a condition precedent to payment of any sums due and owing to any\nperson for work done upon the project.\n (e) The commissioner shall ensure that all supplements due under this\narticle shall be paid to or on behalf of an employee. The commissioner\nshall require proof that the pension plan for which any supplement has\nbeen paid is qualified as a bona fide plan by the United States internal\nrevenue service. Acceptable proof shall be shown by submission of a\ndetermination letter issued by the United States internal revenue\nservice.\n * (f) (i) For the purposes of this subdivision contractors or\nsubcontractors engaged in custom fabrication shall not be regarded as\nmaterial suppliers. For the purposes of this subdivision, a legal day's\nwork for which the prevailing rate of wages for the New York county in\nwhich the public works project is situated shall be paid to laborers,\nworkers and mechanics shall include custom fabrication regardless of\nwhether the custom fabrication occurs on-site, off-site, or in another\njurisdiction outside the state where the custom fabrication constitutes\na significant portion of the building or work, it shall be a condition\nof the contract concerning all such custom fabrication work that the\ncontractor or employer awarded the public work contract, except where\nthe project includes federal funding that triggers federal rules for\nwage requirements, and any subcontractor thereto shall pay the on-site\nprevailing wage required for workers at the site of the public work\nproject to those workers performing the custom fabrication. To perform a\npublic works contract each contractor or subcontractor who employs\nworkers off-site for the custom fabrication work related to a public\nwork project shall maintain certified payrolls for those workers and\nprovide such payrolls, with original certifications, to the department\nat least annually and upon request, and shall comply with section two\nhundred twenty-i of this article, as applicable. For the purposes of\nthis subdivision the term "custom fabrication" shall include, but not be\nlimited to, the fabrication of exterior or interior wall panel systems,\nwoodwork, electrical, plumbing, heating, cooling, ventilation or exhaust\nduct systems, rebar cages, and mechanical insulation solely and\nspecifically designed and engineered for installation in the\nconstruction, repair or renovation of a building which is the subject of\na contract to which the state, a department of the state, a board or\nofficer in the state, a municipal corporation, a public benefit\ncorporation or a commission appointed pursuant to law is a party. For\nthe purposes of this subdivision, a "significant portion of building or\nwork" means that portions or modules of the building or work, as opposed\nto smaller prefabricated components, are delivered to the place where\nthe building or work will remain, with minimal construction work\nremaining other than the installation and/or assembly of the portions or\nmodules.\n (ii) The department of jurisdiction, as defined in subdivision three-a\nof this section and including any entity to whom such department of\njurisdiction delegates their authority, shall be required to report to\nthe fiscal officer the intention to contract for custom, off-site\nfabrication of any materials on all contracts, regardless of the amount,\nwhich may include the employment of laborers, workers or mechanics in\nthe application to the fiscal officer for the approval of such contract.\nThe department of jurisdiction's report shall state the name and address\nof the off-site, custom fabricator, identify the custom materials that\nare being fabricated off-site and the quantity thereof, the estimated\nand actual cost of the off-site fabrication, and the estimated number of\nworkers employed to complete the custom fabrication at the off-site\nlocation.\n * NB Effective June 17, 2026\n 3-a. a. (i) It shall be the duty of the department of jurisdiction as\ndefined in this section to ascertain from the plans and specifications\nthe classification of workers, mechanics and laborers to be employed on\nsuch project. Such department shall file with the fiscal officer, as\ndefined in this section, the classification of workers, mechanics and\nlaborers to be employed upon such public works project, together with a\nstatement of the work to be performed by each such classification. From\nsuch statement it shall be the duty of the fiscal officer to make a\nproper classification of such workers, mechanics and laborers taking\ninto account whether the work is heavy and highway, building, sewer and\nwater, tunnel work or residential and to make a determination of the\nschedules of wages and supplements to be paid or provided, as the case\nmay be, therefor.\n (ii) The contractor and every sub-contractor on public works contracts\nshall post in a prominent and accessible place on the site where the\nwork is performed a legible statement of all wage rates and supplements\nas specified in the contract to be paid or provided, as the case may be,\nfor the various classes of mechanics, workers, or laborers employed on\nthe work. Such posted statement shall be written in plain English and\ntitled, in lettering no smaller than two inches in height and two inches\nin width, with the phrase "Prevailing Rate of Wages". Such posted\nstatement shall be constructed of materials capable of withstanding\nadverse weather conditions. The contractor and every sub-contractor\nshall notify all laborers, workers or mechanics in their employ in\nwriting of the prevailing rates of wages and supplements for their\nparticular job classification. Such notification shall be given to every\nlaborer, worker or mechanic upon hire, with their first pay stub and\nevery pay stub thereafter At the beginning of performance of every\npublic works contract, and with the first paycheck after July first of\neach year, the contractor and every sub-contractor shall notify all\nlaborers, workers, and mechanics in their employ in writing, in English\nand in the language identified by each laborer, worker, and mechanic as\nhis or her primary language, in accordance with such form as is\nprescribed by the fiscal officer, of the telephone number and address\nfor the fiscal officer. The notice shall also inform each laborer,\nworker, or mechanic of his or her right to contact the fiscal officer or\nsome other representative if, at any time while working for the public\nworks contractor or sub-contractor, he or she does not receive the\nproper prevailing rate of wages or supplements for his or her particular\njob classification that he or she is entitled to receive under the\ncontract. If after investigation the fiscal officer finds that a\ncontractor or sub-contractor has (1) failed to post the statement\nrequired under this subparagraph, (2) failed to provide any notification\nto laborers, workers and mechanics as required under this subparagraph,\n(3) willfully posted the incorrect prevailing wages and supplements, or\n(4) willfully set forth the incorrect prevailing wage or supplement with\nevery pay stub, the fiscal officer shall, by an order which shall\ndescribe particularly the nature of the alleged violation, assess the\ncontractor or sub-contractor a civil penalty of not more than fifty\ndollars upon the first finding of a violation, two hundred fifty dollars\nupon the second finding of a violation, and five hundred dollars for\neach subsequent violation. In assessing the amount of the penalty, the\nfiscal officer shall give due consideration to the size of the\nemployer's business, the good faith of the employer, and the gravity of\nthe violation.\n The fiscal officer shall prepare templates that comply with the\nnotification requirements of this subparagraph. Each such template shall\nbe dual-language, including English and one additional language. The\nfiscal officer shall determine, in his or her discretion, which\nlanguages to provide in addition to English, based on the size of the\nNew York state population that speaks each language and any other factor\nthat the fiscal officer shall deem relevant. All such templates shall be\nposted on the fiscal officer's website and made available for\ndownloading by contractors and subcontractors. When any laborer, worker,\nor mechanic identifies his or her primary language and a template is not\nmade available by the fiscal officer in that language, the contractor or\nsubcontractor shall comply with this subparagraph by providing such\nlaborer, worker, or mechanic an English-language notice or\nacknowledgment. A contractor or subcontractor shall not be penalized for\nerrors or omissions in the non-English portions of any notice provided\nby the fiscal officer. The fiscal officer shall have discretion to waive\nor alter the notification requirements of this subparagraph for\ntemporary help firms as defined in section nine hundred sixteen of this\nchapter.\n (iii) The contractor and every sub-contractor shall keep original\npayrolls or transcripts thereof, subscribed and sworn to or affirmed by\nhim or her as true under the penalties of perjury, setting forth the\nnames and addresses and showing for each worker, laborer, or mechanic\nthe hours and days worked, the occupations worked, the hourly wage rates\npaid and the supplements paid or provided. Such payrolls or transcripts\nthereof shall be accompanied by a copy of each notice required under\nsubdivision one or two of section one hundred ninety-five of this\nchapter for every laborer, worker or mechanic, which shall be subscribed\nand sworn to or affirmed as true under penalties of perjury and shall be\ndeemed to be part of the original payrolls or transcripts thereof for\npurposes of this subdivision. Where the contractor or sub-contractor\nmaintains no regular place of business in New York state and where the\namount of the contract is in excess of twenty-five thousand dollars such\npayrolls shall be kept on the site of the work. All other contractors or\nsub-contractors shall produce within five days on the site of the work\nand upon formal order of the commissioner or his or her designated\nrepresentative such original payrolls or transcripts thereof, subscribed\nand sworn to or affirmed by him or her as true under the penalties of\nperjury, as may be deemed necessary to adequately enforce the provisions\nof this article. Unless otherwise submitted pursuant to section two\nhundred twenty-j of this article, every contractor, and sub-contractor,\nshall submit to the department of jurisdiction within thirty days after\nissuance of its first payroll, and every thirty days thereafter, a\ntranscript of the original payroll record, as provided by this article,\nsubscribed and sworn to or affirmed as true under the penalties of\nperjury. Any person who willfully fails to file such payroll records\nwith the department of jurisdiction, commissioner, or the fiscal officer\nshall be guilty of a class E felony. In addition, any person who\nwillfully fails to file such payroll records within the time specified\nin this subparagraph shall be subject to a civil penalty of up to one\nthousand dollars per day.\n (iv) Unless otherwise submitted pursuant to section two hundred\ntwenty-j of this article, the department of jurisdiction shall be\nrequired to collect and maintain such payroll records at the times\nspecified in subparagraph (iii) of this paragraph. The original payrolls\nor transcripts shall be preserved by the department of jurisdiction for\nfive years from the date of completion of the work on the awarded\ncontract. The department of jurisdiction as herein referred to shall be\nthe department of the state, board or officer in the state, or municipal\ncorporation or commission or board appointed pursuant to law, whose duty\nit is to prepare or direct the preparation of the plans and\nspecifications for a public work project. Each department of\njurisdiction shall designate in writing an individual employed by such\ndepartment responsible for the receipt, collection and review for facial\nvalidity of payrolls. Said designation shall be filed with the fiscal\nofficer and posted in a conspicuous location at the project site. If the\ndesignated individual cannot perform the receipt, collection and review\nof certified payrolls duties as indicated above, for any reason,\nincluding but not limited to reassignment, promotion or separation from\nemployment, the department of jurisdiction must immediately designate\nanother individual employed by such department to fulfill such\nresponsibilities. In the event that a department of jurisdiction fails\nto name an individual responsible for the receipt, collection and review\nfor facial validity of payrolls, as set forth above, then the individual\nso responsible shall be the individual who is the chief policy-making\nindividual of such department of jurisdiction.\n b. All departments of jurisdiction in respect of public work as to\nwhich the industrial commissioner is fiscal officer, as defined in this\nsection, shall furnish to the industrial commissioner the following\ninformation immediately upon signing of a contract for such public work:\n(a) the name and address of the contractor engaged by said department of\njurisdiction; (b) the date when the contract was let; (c) the\napproximate consideration stipulated for in said contract.\n c. The fiscal officer may require any person or corporation performing\nsuch public work to file with the fiscal officer within ten days of\nreceipt of said request, payroll records, sworn to as to their validity\nand accuracy, requested by the fiscal officer, for said public work or\nfor any public or private work performed by said person or corporation\nduring the same period of time as said public work. Such payroll records\nshall include a copy of each notice required under subdivision one or\ntwo of section one hundred ninety-five of this chapter for every\nlaborer, worker or mechanic, which shall be subscribed and sworn to or\naffirmed as true under penalties of perjury. In addition, the fiscal\nofficer may require such person or corporation to furnish proof of any\nsupplements provided or amount paid to or on behalf of laborers, workers\nor mechanics in satisfaction of the obligation to provide supplements\npursuant to this section. In the event said person or corporation fails\nto provide the requested information within the allotted ten days, the\nfiscal officer shall, within fifteen days, order the department of\njurisdiction to immediately withhold from payment to said person or\ncorporation up to twenty-five percent of the amount, not to exceed one\nhundred thousand dollars, to be paid to said person or corporation under\nthe terms of the contract pursuant to which said public work is being\nperformed. Said amount withheld shall be immediately released upon\nreceipt by the department of jurisdiction of a notice from the fiscal\nofficer indicating that the request for records had been satisfied.\n d. Any person who wilfully fails to file the requested payroll records\nwithin ninety days of a demand by the fiscal officer shall be guilty of\na class A misdemeanor, provided, however, that a person who violates\nthis subdivision after having previously been convicted of violating\nthis subdivision within the past five years shall be guilty of a class E\nfelony.\n e. (i) Utility companies who, under local law or ordinance, are\nrequired, as a condition of issuance of a permit to use or open a\nstreet, to agree that none but competent workers, skilled in the work\nrequired of them shall be employed thereon and that prevailing scale of\nunion wages shall be the prevailing wage for the similar titles as\nestablished by the fiscal officer pursuant to this section, paid to\nthose so employed, shall be required to keep original payrolls or\ntranscripts thereof, subscribed and sworn to or affirmed by him or her\nas true under the penalties of perjury, setting forth the names and\naddresses and showing for each workman, laborer, or mechanic the hours\nand days worked, the occupations worked, the hourly wage rates paid and\nthe supplements paid or provided as, and in the manner required by\nparagraphs a, b and c of this subdivision.\n (ii) Utility company contractors and subcontractors to whom a permit\nmay be issued, to use or open a street, shall be required to comply with\nsection two hundred twenty-four-f of this article, as a condition of the\nissuance of a permit to use or open a street, to agree that none but\ncompetent workers, skilled in the work required of them shall be\nemployed thereon and that prevailing scale of union wages shall be the\nprevailing wage for the similar titles as established by the fiscal\nofficer pursuant to this section, paid to those so employed, shall be\nrequired to keep original payrolls or transcripts thereof, subscribed\nand sworn to or affirmed by him or her as true under the penalties of\nperjury, setting forth the names and addresses and showing for each\nworkman, laborer, or mechanic the hours and days worked, the occupations\nworked, the hourly wage rates paid and the supplements paid or provided\nas, and in the manner required by paragraphs a, b and c of this\nsubdivision.\n f. Prevailing wage shall be paid for work performed on a public works\nworksite pursuant to this section for any work involving the delivery to\nand hauling from such worksites of aggregate supply construction\nmaterials, as well as any return hauls, whether empty or loaded and any\ntime spent loading/unloading.\n g. Prevailing wage shall be paid for work performed on a public works\nworksite pursuant to this section for any work involving the delivery to\nand hauling from such worksites of concrete and asphalt, as well as any\nreturn hauls, whether empty or loaded and any time spent\nloading/unloading, in the counties of Nassau, Putnam, Suffolk, and\nWestchester, and in the city of New York.\n 3-b. 1. Public work advisory board. There is hereby created in the\ndepartment an advisory board on public work composed of six members to\nbe appointed by the governor by and with the advice and consent of the\nsenate. Two members of the advisory board shall be persons known to\nrepresent the interests of employers in the construction industry, two\npersons shall be known to represent the interest of employees therein,\nand two members shall be persons appointed to represent the public. The\ngovernor may remove any member when he or she ceases to represent the\ninterests in whose behalf he or she was appointed. The commissioner of\nlabor shall be an additional member of such board without any voting\npower and act as chairman thereof and shall designate an employee of the\ndepartment to be secretary. The board shall meet at the call of the\ncommissioner of labor and when engaged upon the work of the board each\nmember, except the commissioner, shall not receive a salary or other\ncompensation, but shall be reimbursed for reasonable traveling and other\nexpenses to be audited by the state comptroller.\n 2. Terms of office. All members of the advisory board shall be\nappointed for a term of six years to begin at the expiration of the term\nof office of the member whom he is to succeed. Any member appointed to\nfill a vacancy occurring otherwise than by expiration of term shall be\nappointed for the unexpired term of the member whom he is to succeed.\n 3-c. The advisory board shall adopt rules and regulations to govern\nits own proceedings, and to expedite the making by it of the\nexaminations and determinations required by this chapter. The members of\nthe advisory board shall have power:\n 1. To issue subpoenas for and compel the attendance of witnesses and\nthe production of books, contracts, papers, documents and other\nevidence;\n 2. To hear testimony and take or cause to be taken depositions of\nwitnesses residing within or without this state in the manner prescribed\nby law for like depositions in civil actions in the supreme court.\nSubpoenas and commissions to take testimony shall be issued under the\nseal of the department.\n 3-d. The fiscal officer of any political subdivision of the state,\nwherein a public work project is proposed to be constructed, may request\nthe industrial commissioner to make a classification by trades or\noccupations of laborers, workmen and mechanics required to perform the\npublic work in its completed form. The board shall, when requested by\nthe industrial commissioner, examine into proposed public work projects\nand determine the classification by trades or occupations of laborers,\nworkmen and mechanics required to perform the public work in its\ncompleted form; and to determine which of same are skilled, semi-skilled\nor unskilled. The board shall file with the industrial commissioner its\nfindings, determinations and recommendations.\n 3-e. Apprentices will be permitted to work as such only when they are\nregistered, individually, under a bona fide program registered with the\nNew York State Department of Labor. The allowable ratio of apprentices\nto journeymen in any craft classification shall not be greater than the\nratio permitted to the contractor as to his work force on any job under\nthe registered program. Any employee listed on a payroll at an\napprentice wage rate, who is not registered as above, shall be paid the\nwage rate determined by the New York State Department of Labor for the\nclassification of work he actually performed. The contractor or\nsubcontractor will be required to furnish written evidence of the\nregistration of his program and apprentices as well as of the\nappropriate ratios and wage rates, for the area of construction prior to\nusing any apprentices on the contract work.\n 4. This section shall not apply to:\n a. Stationary firemen in state hospitals;\n b. Other persons regularly employed in the state institutions, except\nmechanics;\n c. Engineers, electricians and elevator men in the bureau of building\nmanagement of the office of general services during the annual session\nof the legislature.\n 5. Definitions. a. The "prevailing rate of wage," for the intents and\npurposes of this article, shall be the rate of wage paid in the\nlocality, as hereinafter defined, by virtue of collective bargaining\nagreements between bona fide labor organizations and employers of the\nprivate sector, performing public or private work provided that said\nemployers employ at least thirty per centum of workers, laborers or\nmechanics in the same trade or occupation in the locality where the work\nis being performed. The prevailing rate of wage shall be annually\ndetermined in accordance herewith by the fiscal officer no later than\nthirty days prior to July first of each year, and the prevailing rate of\nwage for the period commencing July first of such year through June\nthirtieth, inclusive, of the following year shall be the rate of wage\nset forth in such collective bargaining agreements for the period\ncommencing July first through June thirtieth, including those increases\nfor such period which are directly ascertainable from such collective\nbargaining agreements by the fiscal officer in his annual determination.\nIn the event that it is determined after a contest, as provided in\nsubdivision six of this section, that less than thirty percent of the\nworkers, laborers or mechanics in a particular trade or occupation in\nthe locality where the work is being performed receive a collectively\nbargained rate of wage, then the average wage paid to such workers,\nlaborers or mechanics in the same trade or occupation in the locality\nfor the twelve-month period preceding the fiscal officer's annual\ndetermination shall be the prevailing rate of wage. Laborers, workers or\nmechanics for whom a prevailing rate of wage is to be determined shall\nnot be considered in determining such prevailing wage.\n b. "Supplements," for the intents and purposes of this article, means\nall remuneration for employment paid in any medium other than cash, or\nreimbursement for expenses, or any payments which are not "wages" within\nthe meaning of the law, including, but not limited to, health, welfare,\nnon-occupational disability, retirement, vacation benefits, holiday pay\nlife insurance, and apprenticeship training.\n c. "Prevailing practices in the locality," for the intents and\npurposes of this article, shall be the practice of providing\nsupplements, as hereinbefore defined, as provided by virtue of\ncollective bargaining agreements between bona fide labor organizations\nand employers of the private sector, performing public or private work\nprovided that said employers employ at least thirty per centum of\nworkers, laborers or mechanics in the same trade or occupation in the\nlocality, as determined by the fiscal officer in accordance with the\nprovisions herein.\n With respect to each supplement determined to be one of the prevailing\npractices in the locality, the amount of such supplement shall be\ndetermined in the same manner and at the same times as the prevailing\nrate of wage is determined pursuant to this section.\n d. "Locality" means such areas of the state described and defined for\na trade or occupation in the current collective bargaining agreements\nbetween bona fide labor organizations and employers of the private\nsector, performing public and private work.\n e. The "fiscal officer," as used herein, shall be deemed to be, on\npublic work performed by or on behalf of the state or a public benefit\ncorporation or a county or a village, or other civil division of the\nstate, except a city, with a population in excess of one million, the\ncommissioner of labor; and on public work performed by or on behalf of a\ncity with a population in excess of one million, the comptroller or\nother analogous officer of such city.\n f. The term "verified complaint," as applied to a claim against a\nmunicipality, shall include a verified demand or verified notice of\nclaim heretofore, and since the first day of January, nineteen hundred\nthirty-five, filed with the fiscal officer of such municipality in\naccordance with the provisions of the local charter or local laws or\nordinances relating generally to the filing of claims or demands against\nsuch municipality; and any person who has filed such a demand or notice\nshall be deemed to have filed a verified complaint as of the date, not\nearlier than the first day of January, nineteen hundred thirty-five,\nmentioned in such notice or demand as the commencement of the period in\nrelation to which such claim or demand is made.\n g. "Substantially owned-affiliated entity" shall mean the parent\ncompany of the contractor or subcontractor, any subsidiary of the\ncontractor or subcontractor, or any entity in which the parent of the\ncontractor or subcontractor owns more than fifty percent of the voting\nstock, or an entity in which one or more of the top five shareholders of\nthe contractor or subcontractor individually or collectively also owns a\ncontrolling share of the voting stock, or an entity which exhibits any\nother indicia of control over the contractor or subcontractor or over\nwhich the contractor or subcontractor exhibits control, regardless of\nwhether or not the controlling party or parties have any identifiable or\ndocumented ownership interest. Such indicia shall include, power or\nresponsibility over employment decisions, access to and/or use of the\nrelevant entity's assets or equipment, power or responsibility over\ncontracts of the entity, responsibility for maintenance or submission of\ncertified payroll records, and influence over the business decisions of\nthe relevant entity.\n h. "Entity" shall mean a partnership, association, joint venture,\ncompany, sole proprietorship, corporation or any other form of doing\nbusiness.\n i. "Parent company" shall mean an entity that directly controls the\ncontractor or subcontractor.\n j. "Subsidiary" shall mean an entity that is controlled directly, or\nindirectly through one or more intermediaries, by a contractor or\nsubcontractor or by the contractor's parent company.\n k. "Successor" shall mean an entity engaged in work substantially\nsimilar to that of the predecessor, where there is substantial\ncontinuity of operation with that of the predecessor.\n l. "Person" shall mean a human being and shall also include an\n"entity" as defined in this article, including, but not limited to, a\ncontractor or subcontractor.\n 6. The fiscal officer may, and on the written request of any\ninterested person shall, require any person or corporation performing\nsuch public work to file with such fiscal officer schedules of the\nsupplements to be provided and wages to be paid to such laborers,\nworkmen or mechanics. Any such person or corporation shall, within ten\ndays after the receipt of written notice of such requirement, file with\nthe fiscal officer such schedules of wages and supplements. An employer\nmay contest a determination by the fiscal officer under paragraphs a and\nc of subdivision five of this section. The employer must allege and\nprove by competent evidence, that the actual percentage of workers,\nlaborers or mechanics is below the required thirty per centum and during\nthe pendency of any such contest and until final determination thereof,\nthe work in question shall proceed under the rate established by the\nfiscal officer.\n 7. Compliance investigations. The fiscal officer as herein defined\nshall on a verified complaint in writing of any person interested or of\nany employee organization pursuant to subdivision eight-d of this\nsection, and may on his own initiative cause a compliance investigation\nto be made to determine whether the contractor or a subcontractor has\npaid the prevailing rate of wages and prevailing practices for\nsupplements in the same trade or occupation in the locality within the\nstate where such public work is being performed, or the hours of labor\nperformed by the workmen, laborers and mechanics employed on such public\nwork, or both. The fiscal officer or his agents, examiners and\ninspectors may examine or cause to be examined the books and records\npertaining to the rate of wages paid and supplements provided to the\nlaborers, workmen and mechanics on said public work and the hours of\nlabor performed by such laborers, workmen and mechanics on said public\nwork. The fiscal officer in such investigation shall be deemed to be\nacting in a judicial capacity, and shall have the right to issue\nsubpoenas, administer oaths and examine witnesses. The enforcement of a\nsubpoena issued under this section shall be regulated by the civil\npractice law and rules. Such fiscal officer shall make either an order,\ndetermination or any other disposition, including but not limited to an\nagreed upon settlement and/or stipulation, within six months from the\ndate of filing of such verified complaint, and where a compliance\ninvestigation is made without the filing of a verified complaint, within\nsix months from the date a compliance investigation is initiated by such\nfiscal officer. Upon the making of said order or determination, or upon\narriving at such agreed upon settlement and/or stipulation, a copy\nthereof shall be sent by certified mail, return receipt requested, by\nthe fiscal officer: (i) to the person and employee organization, if any,\nwho or which initiated the complaint, (ii) to the person or corporation,\nif any, against whom the complaint was brought, and (iii) where a\ncompliance investigation is made without the filing of a complaint, to\nthe person who or which was the subject of the compliance investigation.\n 7-a. The fiscal officer must make an inquiry as to the willfulness of\nthe alleged violation which is the subject of a compliance investigation\npursuant to subdivision seven of this section. In the event a formal\nhearing is held pursuant to subdivision eight of this section, the\nfiscal officer, upon a review of the entire record and a finding of\ncredible evidence, must make a determination, as to the willfulness of\nsaid violation. No finding of willfulness made pursuant to the\nprovisions of this subdivision shall be dispositive in a criminal\nprosecution initiated pursuant to section one hundred ninety-eight-a of\nthis chapter, or paragraph (d) of subdivision three of this section, or\nparagraph (c) of subdivision three-a of this section or any other\nprovision of law.\n 8. Hearings. Before issuing an order or determination as provided in\nsubdivision seven of this section, the fiscal officer shall order a\nhearing thereon at a time and place to be specified, and shall give\nnotice thereof, together with a copy of such complaint or the purpose\nthereof, or a statement of the facts disclosed upon such investigation,\nwhich notice shall be served personally or by mail on any person\naffected thereby; such person shall have an opportunity to be heard in\nrespect to the matters complained of at the time and place specified in\nsuch notice, which time shall be not less than five days from the\nservice of the notice personally or by mail. The fiscal officer in such\nhearing shall be deemed to be acting in a judicial capacity, and shall\nhave the right to issue subpoenas, administer oaths and examine\nwitnesses. The enforcement of a subpoena issued under this section shall\nbe regulated by the civil practice law and rules. Such hearing shall be\nexpeditiously conducted and upon such hearing the fiscal officer shall\ndetermine the issues raised thereon and shall make and file an order in\nthe office of the fiscal officer stating such determination, and\nforthwith serve a copy of such order, with a notice of the filing\nthereof, upon the parties to such proceeding, personally or by mail.\nSuch order shall direct payment of wages or supplements found to be due,\nincluding interest at the rate of interest then in effect as prescribed\nby the superintendent of financial services pursuant to section\nfourteen-a of the banking law per annum from the date of the\nunderpayment to the date of the payment, provided, however, that such\ninterest rate shall not apply to subdivision eight-c of this section.\n In addition to directing payment of wages or supplements including\ninterest found to be due, such order may direct payment of a further sum\nas a civil penalty in an amount not exceeding twenty-five percent of the\ntotal amount found to be due. In assessing the amount of the penalty,\ndue consideration shall be given to the size of the employer's business,\nthe good faith of the employer, the gravity of the violation, the\nhistory of previous violations and the failure to comply with\nrecordkeeping or other non-wage requirements. Where the fiscal officer\nis the commissioner, the penalty shall be paid to the commissioner for\ndeposit in the state treasury. Where the fiscal officer is a city\ncomptroller or other analogous officer, the penalty shall be paid to\nsaid officer for deposit in the city treasury.\n Upon the entry of such order any party aggrieved thereby may commence\na proceeding for the review thereof pursuant to article seventy-eight of\nthe civil practice law and rules within thirty days from the notice of\nthe filing of the said order in the office of the fiscal officer. Said\nproceeding shall be commenced directly in the appellate division of the\nsupreme court. If such order is not reviewed, or is so reviewed and the\nfinal decision is in favor of the complainant and the order involves or\nrelates to the rate of wages paid or the supplements provided on such\npublic work, the complainant or any other person affected may within six\nmonths after the service of notice of the filing of said order, or the\nnotice of entry of said final decision on review, institute an action\nagainst the person found violating this act for the recovery of the\ndifference between the sum actually paid or provided and the amount\nwhich should have been paid or provided, together with interest at the\nrate of interest provided herein, as determined by said order or\ndecision, as the case may be, from and after the date of the filing of\nsaid verified complaint, with the fiscal officer or of the filing of the\nfiscal officer's report of investigation made on his own initiative.\nProvided that no proceeding for judicial review as provided herein shall\nthen be pending and the time for initiation of such proceeding shall\nhave expired, the fiscal officer may file with the county clerk of the\ncounty where the employer resides or has a place of business the order\nof the fiscal officer containing the amount found to be due. The filing\nof such order shall have the full force and effect of a judgment duly\ndocketed in the office of such clerk. The order may be enforced by and\nin the name of the fiscal officer in the same manner, and with like\neffect, as that prescribed by the civil practice law and rules for the\nenforcement of a money judgment.\n 8-a. Notwithstanding any inconsistent provision of this chapter or of\nany other general, special or local law, ordinance, charter or\nadministrative code, the prior receipt without protest of the wages,\nsalary or supplements paid or provided, as the case may be, to the\ncomplainant or any other person affected by such final order, or his\nfailure to state orally or in writing upon any payroll or receipt which\nhe is required to sign that the wages, salary or supplements received by\nhim is received under protest, or to indicate in any other way his\nprotest against the amount thereof, or that the amount so paid does not\nconstitute payment in full of the wages or salary due him for the period\ncovered by such payment, or that the supplements provided do not\nconstitute the full supplements due him, shall not be a bar to his right\nto recover, in accordance with the provisions of subdivision eight, the\ndifference between the sum actually paid or provided, as the case may\nbe, and the amount which should have been paid or provided, as the case\nmay be, as determined by such final order.\n 8-b. Notwithstanding any inconsistent provision of this chapter or of\nany other general, special or local law, ordinance, charter or\nadministrative code, an employee of a municipal corporation,\nirrespective of the title of his position or employment, whose salary or\nwage or supplement is fixed by reference to a prevailing rate of wage\ndetermined or to a prevailing practice for supplements determination and\nestablished by a final order in a proceeding instituted under this\nsection, shall not be barred from his right to recover, in accordance\nwith the terms of such fixation, the difference between the amount\nactually paid to him and the amount which should have been paid to him\nor provided, as the case may be, pursuant to such fixation, because of\nthe prior receipt by him without protest of the salary, wages or\nsupplements paid or provided to him, as the case may be; or because he\ndid not previously protest his prior failure to be provided with any\nsupplement whatsoever; or on account of his failure to state orally or\nin writing upon any payroll or receipt which he is required to sign that\nthe salary or wages or supplements received by him is received under\nprotest, or on account of his failure to indicate his protest against\nthe amount or non-provision thereof or that the amount so paid or\nprovided does not constitute payment or provision, as the case may be,\nin full of the salary, wages or supplement due him for the period\ncovered by such payment.\n 8-c. Interest at six percentum per annum shall begin to accrue sixty\ndays after a final determination made by a fiscal officer on the\ndifference between the prevailing wages so determined, and which should\nhave been paid to an employee of a municipal corporation, and the amount\nactually received by him. Said accumulated interest shall be paid to the\nemployee when back pay based on the determination is paid to him.\n 8-d. Notwithstanding any inconsistent provision of this chapter or of\nany other law, in a city of one million or more, where a majority of\nlaborers, workmen or mechanics in a particular civil service title are\nmembers of an employee organization which has been certified or\nrecognized to represent them pursuant to the provisions of article\nfourteen of the civil service law or a local law enacted thereunder, the\npublic employer and such employee organization shall in good faith\nnegotiate and enter into a written agreement with respect to the wages\nand supplements of the laborers, workmen or mechanics in the title. If\nthe parties fail to achieve an agreement, only the employee organization\nshall be authorized to file a single verified complaint pursuant to\nsubdivision seven herein, on behalf of the laborers, workmen or\nmechanics so represented. Such employee organization shall be the sole\nand exclusive representative of such laborers, workmen or mechanics at\nany hearing pursuant to subdivision eight herein, and shall be the sole\ncomplainant in the proceeding for all purposes therein, including review\npursuant to article seventy-eight of the civil practice law and rules.\nService by the fiscal officer on the employee organization shall be\nsufficient notice to the laborers, workmen or mechanics so represented\nfor all purposes of subdivision eight herein, except that the issuance\nand enforcement of subpoenas shall be regulated by the civil practice\nlaw and rules. Any order, compromise, or settlement determining the\nissues raised upon such a proceeding, which has not been taken up for\nreview by the employee organization, shall be binding upon the laborers,\nworkmen or mechanics represented by the employee organization. Nothing\nherein shall be construed to limit the rights of any laborer, workman or\nmechanic who has on file a verified complaint prior to the effective\ndate of this subdivision.\n 9. When a final determination has been rendered, any person that\nwilfully refuses thereafter to pay the rate of wages or to provide the\nsupplements determined to be prevailing, or wilfully employs on such\npublic work, laborers, workmen or mechanics more than the hours per day\ndetermined by said order until modified by order of the fiscal officer\nor court and thereby violates the provisions of this section shall be\nguilty of a misdemeanor and upon conviction thereof shall be punished,\nin accordance with the penal law. A person who violates this subdivision\nafter having previously been convicted of violating this subdivision\nwithin the past five years shall be guilty of a class E felony, and in\naddition thereto the contract on which the violation has occurred shall\nbe forfeited; and no such person shall be entitled to receive any sum\nnor shall any officer, agent or employee of the state or of a municipal\ncorporation pay the same or authorize its payment from the funds under\nhis charge or control to any such person for work done upon any\ncontract, on which the contractor has been convicted of second offense\nin violation of the provisions of this section.\n