§ 224-A — Prevailing wage requirements applicable to construction projects performed under private contract

New York § 224-A

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

Text

§ 224-a. Prevailing wage requirements applicable to construction\nprojects performed under private contract. 1. Subject to the provisions\nof this section, each "covered project" as defined in this section shall\nbe subject to prevailing wage requirements in accordance with section\ntwo hundred twenty and two hundred twenty-b of this article. A "covered\nproject" shall mean construction work done under contract which is paid\nfor in whole or in part out of public funds as such term is defined in\nthis section where the amount of all such public funds, when aggregated,\nis at least thirty percent of the total construction project costs and\nwhere such project costs are over five million dollars except as\nprovided for by section two hundred twenty-four-c of this article.\n 2. For purposes of this section, "paid for in whole or in part out of\npublic funds" shall mean any of the following:\n a. The payment of money, by a public entity, or a third party acting\non behalf of and for the benefit of a public entity, directly to or on\nbehalf of the contractor, subcontractor, developer or owner that is not\nsubject to repayment;\n b. The savings achieved from fees, rents, interest rates, or other\nloan costs, or insurance costs that are lower than market rate costs;\nsavings from reduced taxes as a result of tax credits, tax abatements,\ntax exemptions or tax increment financing; savings from payments in lieu\nof taxes; and any other savings from reduced, waived, or forgiven costs\nthat would have otherwise been at a higher or market rate but for the\ninvolvement of the public entity;\n c. Money loaned by the public entity that is to be repaid on a\ncontingent basis;\n d. Credits that are applied by the public entity against repayment of\nobligations to the public entity; or\n e. Benefits under section four hundred sixty-seven-m of the real\nproperty tax law.\n 3. For purposes of this section, "paid for in whole or in part out of\npublic funds" shall not include:\n a. Benefits under section four hundred twenty-one-a of the real\nproperty tax law;\n b. Funds that are not provided primarily to promote, incentivize, or\nensure that construction work is performed, which would otherwise be\ncaptured in subdivision two of this section;\n c. Funds used to incentivize or ensure the development of a\ncomprehensive sewage system, including connection to existing sewer\nlines or creation of new sewage lines or sewer capacity, provided,\nhowever, that such work shall be deemed to be a public work covered\nunder the provisions of this article;\n d. tax benefits provided for projects the length or value of which are\nnot able to be calculated at the time the work is to be performed;\n e. tax benefits related to brownfield remediation or brownfield\nredevelopment pursuant to section twenty-one, twenty-two, one hundred\neighty-seven-g or one hundred eighty-seven-h of the tax law, subdivision\nseventeen or eighteen of section two hundred ten-B of the tax law,\nsubsection (dd) or (ee) of section six hundred six of the tax law, or\nsubdivision (u) or (v) of section fifteen hundred eleven of the tax law;\n f. funds provided pursuant to subdivision three of section\ntwenty-eight hundred fifty-three of the education law;\n g. any other public monies, credits, savings or loans, determined by\nthe public subsidy board created in section two hundred twenty-four-c of\nthis article as exempt from this definition; and\n h. benefits under section four hundred eighty-five-x of the real\nproperty tax law.\n 4. For purposes of this section "covered project" shall not include\nany of the following:\n a. Construction work on one or two family dwellings where the property\nis the owner's primary residence, or construction work performed on\nproperty where the owner of the property owns no more than four dwelling\nunits;\n b. Construction work performed under a contract with a not-for-profit\ncorporation as defined in section one hundred two of the not-for-profit\ncorporation law, other than a not-for-profit corporation formed\nexclusively for the purpose of holding title to property and collecting\nincome thereof or any public entity as defined in this section, where\nthe not-for-profit corporation has gross annual revenue and support less\nthan five million dollars;\n c. Construction work performed on a multiple residence and/or\nancillary amenities or installations that is wholly privately owned in\nany of the following circumstances except as provided for by section two\nhundred twenty-four-c of this article:\n (i) where no less than twenty-five percent of the residential units\nare affordable and shall be retained subject to an anticipated\nregulatory agreement with a local, state, or federal governmental\nentity, or a not-for-profit entity with an anticipated formal agreement\nwith a local, state, or federal governmental entity for purposes of\nproviding affordable housing in a given locality or region provided that\nthe period of affordability for a residential unit deemed affordable\nunder the provisions of this paragraph shall be for no less than fifteen\nyears from the date of construction; or\n (ii) where no less than thirty-five percent of the residential units\ninvolves the provision of supportive housing services for vulnerable\npopulations provided that such units are subject to an anticipated\nregulatory agreement with a local, state, or federal governmental\nentity; or\n (iii) any newly created programs for affordable or subsidized housing\nas determined by the public subsidy board established by section two\nhundred twenty-four-c of this article.\n d. Construction work performed on a manufactured home park as defined\nin paragraph three of subdivision a of section two hundred thirty-three\nof the real property law where the manufactured home park is subject to\na regulatory agreement with a local, state, or federal governmental\nentity for no less than fifteen years;\n e. Construction work performed under a pre-hire collective bargaining\nagreement between an owner or contractor and a bona fide building and\nconstruction trade labor organization which has established itself as\nthe collective bargaining representative for all persons who will\nperform work on such a project, and which provides that only contractors\nand subcontractors who sign a pre-negotiated agreement with the labor\norganization can perform work on such a project, or construction work\nperformed under a labor peace agreement, project labor agreement, or any\nother construction work performed under an enforceable agreement between\nan owner or contractor and a bona fide building and construction trade\nlabor organization;\n f. Construction work performed on projects funded by section sixteen-n\nof the urban development corporation act or the downtown revitalization\ninitiative;\n g. Construction work and engineering and consulting services performed\nin connection with the installation of a renewable energy system,\nrenewable heating or cooling system, or energy storage system, with a\ncapacity equal to or under five megawatts alternating current;\n h. Construction work performed on supermarket retail space built or\nrenovated with tax incentives provided under the food retail expansion\nto support health (FRESH) program through the New York city industrial\ndevelopment agency;\n i. Construction work performed for interior fit-outs and improvements\nunder ten thousand square feet through small business incubation\nprograms operated by the New York city economic development corporation;\n j. Construction work on space to be used as a school under sixty\nthousand square feet, pursuant to a lease from a private owner to the\nNew York city department of education and the school construction\nauthority; or\n k. Construction work performed on projects that received tax benefits\nrelated to historic rehabilitation pursuant to subdivision twenty-six of\nsection two hundred ten-B of the tax law, subsection (oo) or (pp) of\nsection six hundred six of the tax law, or subdivision (y) of section\nfifteen hundred eleven of the tax law.\n 5. For purposes of this section, "public entity" shall include, but\nshall not be limited to, the state, a local development corporation as\ndefined in subdivision eight of section eighteen hundred one of the\npublic authorities law or section fourteen hundred eleven of the\nnot-for-profit corporation law, a municipal corporation as defined in\nsection one hundred nineteen-n of the general municipal law, an\nindustrial development agency formed pursuant to article eighteen-A of\nthe general municipal law or industrial development authorities formed\npursuant to article eight of the public authorities law, and any state,\nlocal or interstate or international authorities as defined in section\ntwo of the public authorities law; and shall include any trust created\nby any such entities.\n 6. For purposes of this section, "construction" means work which shall\nbe as defined by the public subsidy board to require payment of\nprevailing wage, and which may involve the employment of laborers,\nworkers, or mechanics.\n 7. For purposes of this section and section two hundred twenty-four-b\nof this article, the "fiscal officer" shall be deemed to be the\ncommissioner.\n 8. The enforcement of any construction work deemed to be a covered\nproject pursuant to this section, and any additional requirements, shall\nbe subject, in addition to this section, only to the requirements of\nsections two hundred twenty, two hundred twenty-four-b, two hundred\ntwenty-four-c, and two hundred twenty-b of this article and within the\njurisdiction of the fiscal officer; provided, however, nothing contained\nin this section shall be deemed to construe any covered project as\notherwise being considered public work pursuant to this article; and\nfurther provided:\n a. The owner or developer of such covered project shall certify under\npenalty of perjury within five days of commencement of construction work\nwhether the project at issue is subject to the provisions of this\nsection through the use of a standard form developed by the fiscal\nofficer.\n b. The owners or developers of a property who are undertaking a\nproject under private contract, may seek guidance from the public\nsubsidy board contained in section two hundred twenty-four-c of this\narticle, and such board may render an opinion as to whether or not the\nproject is a covered project within the meaning of this article. Any\nsuch determination shall not be reviewable by the fiscal officer, nor\nshall it be reviewable by the department pursuant to section two hundred\ntwenty of this article.\n c. The owner or developer of a covered project shall be responsible\nfor retaining original payroll records in accordance with section two\nhundred twenty of this article for a period of six years from the\nconclusion of such work. All payroll records maintained by an owner or\ndeveloper pursuant to this section shall be subject to inspection on\nrequest of the fiscal officer. Such owner or developer may authorize the\nprime contractor of the construction project to take responsibility for\nretaining and maintaining payroll records, but will be held jointly and\nseverally liable for any violations of such contractor. All records\nobtained by the fiscal officer shall be subject to the Freedom of\nInformation Law.\n d. Each public entity providing any of the public funds listed in\nsubdivision two of this section to an owner, developer, contractor or\nsubcontractor of a project shall identify the nature and dollar value of\nsuch funds and whether any such funds are excluded under subdivision\nthree of this section and shall so notify the recipient of such funds of\nsuch determination and of their obligations under paragraph a of this\nsubdivision.\n e. The fiscal officer may issue rules and regulations governing the\nprovisions of this section. Violations of this section shall be grounds\nfor determinations and orders pursuant to section two hundred twenty-b\nof this article.\n 9. Each owner and developer subject to the requirements of this\nsection shall comply with the objectives and goals of minority and\nwomen-owned business enterprises pursuant to article fifteen-A of the\nexecutive law and service-disabled veteran-owned businesses pursuant to\narticle seventeen-B of the executive law. The department in consultation\nwith the directors of the division of minority and women's business\ndevelopment and of the division of service-disabled veterans' business\ndevelopment shall make training and resources available to assist\nminority and women-owned business enterprises and service-disabled\nveteran-owned business enterprises on covered projects achieve and\nmaintain compliance with prevailing wage requirements. The department\nshall make such training and resources available online and shall afford\nminority and women-owned business enterprises and service-disabled\nveteran-owned business enterprises an opportunity to submit comments on\nsuch training.\n 10. a. The fiscal officer shall report to the governor, the temporary\npresident of the senate, and the speaker of the assembly by July first,\ntwo thousand twenty-two, and annually thereafter, on the participation\nof minority and women-owned business enterprises in relation to covered\nprojects and contracts for public work subject to the provisions of this\nsection and section two hundred twenty of this article respectively as\nwell as the diversity practices of contractors and subcontractors\nemploying laborers, workers, and mechanics on such projects.\n b. Such reports shall include aggregated data on the utilization and\nparticipation of minority and women-owned business enterprises, the\nemployment of minorities and women in construction-related jobs on such\nprojects, and the commitment of contractors and subcontractors on such\nprojects to adopting practices and policies that promote diversity\nwithin the workforce. The reports shall also examine the compliance of\ncontractors and subcontractors with other equal employment opportunity\nrequirements and anti-discrimination laws, in addition to any other\nemployment practices deemed pertinent by the commissioner.\n c. The fiscal officer may require any owner or developer to disclose\ninformation on the participation of minority and women-owned business\nenterprises and the diversity practices of contractors and\nsubcontractors involved in the performance of any covered project. It\nshall be the duty of the fiscal officer to consult and to share such\ninformation in order to effectuate the requirements of this section.\n 11. If construction work is not deemed to be a covered project,\nwhether by virtue of an exclusion of such project under subdivision four\nof this section, or by virtue or not receiving sufficient public money\nto be deemed "paid for in whole or in part out of public funds", such\nproject shall not be subject to the requirements of sections two hundred\ntwenty and two hundred twenty-b of this article.\n