N.Y. Labor Law § 220: Hours, wages and supplements

§ 220. Hours, wages and supplements. 1. Eight hours shall constitute a

legal day's work for all classes of employees in this state except those

engaged in farm and domestic service unless otherwise provided by law.

2. Each contract to which the state or a public benefit corporation or

a municipal corporation or a commission appointed pursuant to law is a

party, and any contract for public work entered into by a third party

acting in place of, on behalf of and for the benefit of such public

entity pursuant to any lease, permit or other agreement between such

third party and the public entity, and which may involve the employment

of laborers, workers or mechanics shall contain a stipulation that no

laborer, worker or mechanic in the employ of the contractor,

subcontractor or other person doing or contracting to do the whole or a

part of the work contemplated by the contract shall be permitted or

required to work more than eight hours in any one calendar day or more

than five days in any one week except in cases of extraordinary

emergency including fire, flood or danger to life or property. No such

person shall be so employed more than eight hours in any day or more

than five days in any one week except in such emergency. Extraordinary

emergency within the meaning of this section shall be deemed to include

situations in which sufficient laborers, workers and mechanics cannot be

employed to carry on public work expeditiously as a result of such

restrictions upon the number of hours and days of labor and the

immediate commencement or prosecution or completion without undue delay

of the public work is necessary in the judgment of the commissioner for

the preservation of the contract site and for the protection of the life

and limb of the persons using the same. Upon the application of any

person interested, the commissioner shall make a determination as to

whether or not on any public project or on all public projects in any

area of this state, sufficient laborers, workers and mechanics of any or

all classifications can be employed to carry on work expeditiously if

their labor is restricted to eight hours per day and five days per week,

and in the event that the commissioner determines that there are not

sufficient workers, laborers and mechanics of any or all classifications

which may be employed to carry on such work expeditiously if their labor

is restricted to eight hours per day and five days per week, and the

immediate commencement or prosecution or completion without undue delay

of the public work is necessary in the judgment of the commissioner for

the preservation of the contract site and for the protection of the life

and limb of the persons using the same, the commissioner shall grant a

dispensation permitting all laborers, workers and mechanics, or any

classification of such laborers, workers and mechanics, to work such

additional hours or days per week on such public project or in such

areas the commissioner shall determine. Whenever such a dispensation is

granted, all work in excess of eight hours per day and five days per

week shall be considered overtime work, and the laborers, workers and

mechanics performing such work shall be paid a premium wage commensurate

with the premium wages prevailing in the area in which the work is

performed. No such dispensation shall be effective with respect to any

public work unless and until the department of jurisdiction, as defined

in this section, certifies to the commissioner that such public work is

of an important nature and that a delay in carrying it to completion

would result in serious disadvantage to the public. Time lost in any

week because of inclement weather by employees engaged in the

construction, reconstruction and maintenance of highways outside of the

limits of cities and villages may be made up during that week and/or the

succeeding three weeks.

2-a. Any person contracting with the state or a public benefit

corporation, or a municipal corporation, or a commission appointed

pursuant to law that shall require more than eight hours work for a

day's labor, unless otherwise permitted by law, is guilty of a

misdemeanor, and upon conviction thereof shall be punished in accordance

with the penal law for each offense.

3. (a) The wages to be paid for a legal day's work, as hereinbefore

defined, to laborers, workmen or mechanics upon such public works, shall

be not less than the prevailing rate of wages as hereinafter defined.

Serving laborers, helpers, assistants and apprentices shall not be

classified as common labor and shall be paid not less than the

prevailing rate of wages as hereinafter defined. No employee shall be

deemed to be an apprentice unless he is individually registered in an

apprenticeship program which is duly registered with the commissioner of

labor in conformity with the provisions of article twenty-three of this

chapter. The wages to be paid for a legal day's work, as hereinbefore

defined, to laborers, workmen or mechanics upon any material to be used

upon or in connection therewith, shall be not less than the prevailing

rate for a day's work in the same trade or occupation in the locality

within the state where such public work on, about or in connection with

which such labor is performed in its final or completed form is to be

situated, erected or used. Such contracts shall contain a provision that

each laborer, workman or mechanic, employed by such contractor,

subcontractor or other person about or upon such public work, shall be

paid the wages herein provided.

(b) The supplements, as hereinafter defined, to be provided to

laborers, workmen or mechanics upon such public works, shall be in

accordance with the prevailing practices in the locality, as hereinafter

defined. Serving laborers, helpers, assistants and apprentices shall

not be classified as common labor and shall be provided supplements in

accordance with the prevailing practices as hereinafter defined. No

employee shall be deemed to be an apprentice unless he is individually

registered in an apprenticeship program which is duly registered with

the industrial commissioner in conformity with the provisions of article

twenty-three of this chapter. The supplements, as hereinafter defined,

to be provided to laborers, workmen or mechanics upon any material to be

used upon or in connection therewith, shall be in accordance with the

prevailing practices in the same trade or occupation in the locality

within the state where such public work on, about or in connection with

which such labor is performed in its final or completed form is to be

situated, erected or used. Such contracts shall contain a provision that

each laborer, workman or mechanic, employed by such contractor,

subcontractor or other person about or upon such public work, shall be

provided the supplements as required in this article.

(c) It shall be the duty of the fiscal officer, as defined in this

section, to ascertain and determine the schedules of supplements to be

provided and wages to be paid workers, laborers and mechanics on such

public work, prior to the time of the advertisement for bids, and such

schedules shall be annexed to and form a part of the specifications for

the work. Such fiscal officer shall file with the department having

jurisdiction such schedules prior to the time of the commencement of the

advertisement for bids on all public works proposed to be constructed.

The term "contract" as used in this article also shall include

reconstruction and repair of any such public work, and any public work

performed under a lease, permit or other agreement pursuant to which the

department of jurisdiction grants the responsibility of contracting for

such public work to any third party proposing to perform such work to

which the provisions of this article would apply had the department of

jurisdiction contracted directly for its performance, or where there is

no lease, permit or other agreement and ownership of a public work is

intended to be assumed by such public entity at any time subsequent to

completion of the public work.

(d) (i) Any person that participates in a public works project in the

capacity of a contractor or subcontractor and who wilfully fails to pay

or provide the prevailing rate of wage or supplements and:

(1) such failure results in underpayments, which in the aggregate

amount to all workers employed by such person, results in an amount less

than twenty-five thousand dollars, shall be guilty of a class A

misdemeanor;

(2) such failure results in underpayments, which in the aggregate

amount to all workers employed by such person, result in an amount

greater than twenty-five thousand dollars, that person shall be guilty

of a class E felony;

(3) such failure results in underpayments, which in the aggregate

amount to all workers employed by such person, result in an amount

greater than one hundred thousand dollars, that person shall be guilty

of a class D felony; or

(4) such failure results in underpayments, which in the aggregate

amount to all workers employed by such person, result in an amount

greater than five hundred thousand dollars, that person shall be guilty

of a class C felony.

(ii) Disposition for violations of this section shall be in accordance

with the penal law. Fines upon conviction for any violation of this

section shall be in accordance with the penal law.

(iii) In addition to the penalties set forth above, any such person

convicted of a second offense under subparagraph (i) of this paragraph

within five years shall disgorge profits and shall not be entitled to

receive any monies due and owing on the contract or subcontract; nor

shall any officer, agent or employee of the department of jurisdiction

or its financial officer pay to such person any such monies.

Notwithstanding the foregoing, the department of jurisdiction may

release monies due and owing on the contract or subcontract which have

not been withheld pursuant to section two hundred twenty-b of this

article for the sole purpose of satisfying the contractor's or

subcontractor's obligations under the contract or subcontract to third

parties who were not themselves involved in the violations giving rise

to the subsequent offense. For the purposes of this subdivision, third

parties shall include, but not be limited to, contractors,

subcontractors, materialmen, and funds, plans, and programs providing

pension, health, and welfare benefits to workmen, laborers, and

mechanics employed pursuant to such contract or subcontract. The

department of jurisdiction may release such monies upon the application

of the contractor provided that no monies shall be released without the

written approval of the fiscal officer or by order of a court of

competent jurisdiction.

(iv) In addition to the penalties set forth above, every contract for

a public work project shall contain a term stating that the filing of

payrolls in a manner consistent with subdivision three-a of this section

is a condition precedent to payment of any sums due and owing to any

person for work done upon the project.

(e) The commissioner shall ensure that all supplements due under this

article shall be paid to or on behalf of an employee. The commissioner

shall require proof that the pension plan for which any supplement has

been paid is qualified as a bona fide plan by the United States internal

revenue service. Acceptable proof shall be shown by submission of a

determination letter issued by the United States internal revenue

service.

(f) (i) For the purposes of this subdivision contractors or

subcontractors engaged in custom fabrication shall not be regarded as

material suppliers. For the purposes of this subdivision, a legal day's

work for which the prevailing rate of wages for the New York county in

which the public works project is situated shall be paid to laborers,

workers and mechanics shall include custom fabrication regardless of

whether the custom fabrication occurs on-site, off-site, or in another

jurisdiction and such pay shall be a condition of the contract

concerning all such custom fabrication work involving the contractor or

employer awarded the public work contract, except where the project

includes federal funding that triggers federal rules for wage

requirements, and any subcontractor thereto shall pay the on-site

prevailing wage required for workers at the site of the public work

project to those workers performing the custom fabrication.

(ii) To perform a public works contract each contractor or

subcontractor who employs workers for custom fabrication work related to

a public work project shall maintain certified payrolls and shall comply

with sections two hundred twenty-i and two hundred twenty-j of this

article.

(iii) For the purposes of this subdivision the term "custom

fabrication" shall include the fabrication of exterior or interior wall

panel systems, woodwork, electrical, plumbing, heating, cooling,

ventilation or exhaust duct systems, rebar cages, and mechanical

insulation solely and specifically designed and engineered for a

specified public work project. The term "custom fabrication" does not

include components, portions, modules, or materials that are otherwise

stocked or readily available absent a specified public work project.

(iv) The provisions of this paragraph shall not include any highway,

structure, vehicle or watercraft used to support transporting persons;

the foregoing notwithstanding, this paragraph shall include electrical,

plumbing, heating, cooling, ventilation or mechanical insulation work in

rest areas, transit stations or depots.

(v) Nothing in this paragraph shall be construed to apply the

requirements set forth in section two hundred twenty-four-a of this

article to any custom fabrication associated with the creation or

rehabilitation of any residential dwelling units or manufactured home

parks that are exempted from the definition of "covered projects" as set

forth in section two hundred twenty four-a of this article.

(vi) The contractor awarded a public work contract, or a subcontractor

thereto, shall be required to report to the department of jurisdiction

the intent to utilize custom fabrication in a form and manner prescribed

by the fiscal officer. Such reports shall identify the public work

contract, the name and location of the custom fabrication entity, and

description of the custom fabrication work. The contractor awarded a

public work contract, or subcontractor thereto, shall notify any

additional party contracted with for custom fabrication that the

contract is subject to this subdivision. The department of jurisdiction,

as defined in subdivision three-a of this section and including any

entity to whom such department of jurisdiction delegates their

authority, shall be required to report to the fiscal officer the

intention to contract for custom fabrication in a form and manner

prescribed by the fiscal officer. Such reports shall identify the public

work contract, the name and location of the custom fabrication entity,

and description of the custom fabrication work. Reports submitted to the

fiscal officer shall be subject to disclosure pursuant to article six of

the public officers law.

3-a. a. (i) It shall be the duty of the department of jurisdiction as

defined in this section to ascertain from the plans and specifications

the classification of workers, mechanics and laborers to be employed on

such project. Such department shall file with the fiscal officer, as

defined in this section, the classification of workers, mechanics and

laborers to be employed upon such public works project, together with a

statement of the work to be performed by each such classification. From

such statement it shall be the duty of the fiscal officer to make a

proper classification of such workers, mechanics and laborers taking

into account whether the work is heavy and highway, building, sewer and

water, tunnel work or residential and to make a determination of the

schedules of wages and supplements to be paid or provided, as the case

may be, therefor.

(ii) The contractor and every sub-contractor on public works contracts

shall post in a prominent and accessible place on the site where the

work is performed a legible statement of all wage rates and supplements

as specified in the contract to be paid or provided, as the case may be,

for the various classes of mechanics, workers, or laborers employed on

the work. Such posted statement shall be written in plain English and

titled, in lettering no smaller than two inches in height and two inches

in width, with the phrase "Prevailing Rate of Wages". Such posted

statement shall be constructed of materials capable of withstanding

adverse weather conditions. The contractor and every sub-contractor

shall notify all laborers, workers or mechanics in their employ in

writing of the prevailing rates of wages and supplements for their

particular job classification. Such notification shall be given to every

laborer, worker or mechanic upon hire, with their first pay stub and

every pay stub thereafter At the beginning of performance of every

public works contract, and with the first paycheck after July first of

each year, the contractor and every sub-contractor shall notify all

laborers, workers, and mechanics in their employ in writing, in English

and in the language identified by each laborer, worker, and mechanic as

his or her primary language, in accordance with such form as is

prescribed by the fiscal officer, of the telephone number and address

for the fiscal officer. The notice shall also inform each laborer,

worker, or mechanic of his or her right to contact the fiscal officer or

some other representative if, at any time while working for the public

works contractor or sub-contractor, he or she does not receive the

proper prevailing rate of wages or supplements for his or her particular

job classification that he or she is entitled to receive under the

contract. If after investigation the fiscal officer finds that a

contractor or sub-contractor has (1) failed to post the statement

required under this subparagraph, (2) failed to provide any notification

to laborers, workers and mechanics as required under this subparagraph,

(3) willfully posted the incorrect prevailing wages and supplements, or

(4) willfully set forth the incorrect prevailing wage or supplement with

every pay stub, the fiscal officer shall, by an order which shall

describe particularly the nature of the alleged violation, assess the

contractor or sub-contractor a civil penalty of not more than fifty

dollars upon the first finding of a violation, two hundred fifty dollars

upon the second finding of a violation, and five hundred dollars for

each subsequent violation. In assessing the amount of the penalty, the

fiscal officer shall give due consideration to the size of the

employer's business, the good faith of the employer, and the gravity of

the violation.

The fiscal officer shall prepare templates that comply with the

notification requirements of this subparagraph. Each such template shall

be dual-language, including English and one additional language. The

fiscal officer shall determine, in his or her discretion, which

languages to provide in addition to English, based on the size of the

New York state population that speaks each language and any other factor

that the fiscal officer shall deem relevant. All such templates shall be

posted on the fiscal officer's website and made available for

downloading by contractors and subcontractors. When any laborer, worker,

or mechanic identifies his or her primary language and a template is not

made available by the fiscal officer in that language, the contractor or

subcontractor shall comply with this subparagraph by providing such

laborer, worker, or mechanic an English-language notice or

acknowledgment. A contractor or subcontractor shall not be penalized for

errors or omissions in the non-English portions of any notice provided

by the fiscal officer. The fiscal officer shall have discretion to waive

or alter the notification requirements of this subparagraph for

temporary help firms as defined in section nine hundred sixteen of this

chapter.

(iii) The contractor and every sub-contractor shall keep original

payrolls or transcripts thereof, subscribed and sworn to or affirmed by

him or her as true under the penalties of perjury, setting forth the

names and addresses and showing for each worker, laborer, or mechanic

the hours and days worked, the occupations worked, the hourly wage rates

paid and the supplements paid or provided. Such payrolls or transcripts

thereof shall be accompanied by a copy of each notice required under

subdivision one or two of section one hundred ninety-five of this

chapter for every laborer, worker or mechanic, which shall be subscribed

and sworn to or affirmed as true under penalties of perjury and shall be

deemed to be part of the original payrolls or transcripts thereof for

purposes of this subdivision. Where the contractor or sub-contractor

maintains no regular place of business in New York state and where the

amount of the contract is in excess of twenty-five thousand dollars such

payrolls shall be kept on the site of the work. All other contractors or

sub-contractors shall produce within five days on the site of the work

and upon formal order of the commissioner or his or her designated

representative such original payrolls or transcripts thereof, subscribed

and sworn to or affirmed by him or her as true under the penalties of

perjury, as may be deemed necessary to adequately enforce the provisions

of this article. Unless otherwise submitted pursuant to section two

hundred twenty-j of this article, every contractor, and sub-contractor,

shall submit to the department of jurisdiction within thirty days after

issuance of its first payroll, and every thirty days thereafter, a

transcript of the original payroll record, as provided by this article,

subscribed and sworn to or affirmed as true under the penalties of

perjury. Any person who willfully fails to file such payroll records

with the department of jurisdiction, commissioner, or the fiscal officer

shall be guilty of a class E felony. In addition, any person who

willfully fails to file such payroll records within the time specified

in this subparagraph shall be subject to a civil penalty of up to one

thousand dollars per day.

(iv) Unless otherwise submitted pursuant to section two hundred

twenty-j of this article, the department of jurisdiction shall be

required to collect and maintain such payroll records at the times

specified in subparagraph (iii) of this paragraph. The original payrolls

or transcripts shall be preserved by the department of jurisdiction for

five years from the date of completion of the work on the awarded

contract. The department of jurisdiction as herein referred to shall be

the department of the state, board or officer in the state, or municipal

corporation or commission or board appointed pursuant to law, whose duty

it is to prepare or direct the preparation of the plans and

specifications for a public work project. Each department of

jurisdiction shall designate in writing an individual employed by such

department responsible for the receipt, collection and review for facial

validity of payrolls. Said designation shall be filed with the fiscal

officer and posted in a conspicuous location at the project site. If the

designated individual cannot perform the receipt, collection and review

of certified payrolls duties as indicated above, for any reason,

including but not limited to reassignment, promotion or separation from

employment, the department of jurisdiction must immediately designate

another individual employed by such department to fulfill such

responsibilities. In the event that a department of jurisdiction fails

to name an individual responsible for the receipt, collection and review

for facial validity of payrolls, as set forth above, then the individual

so responsible shall be the individual who is the chief policy-making

individual of such department of jurisdiction.

b. All departments of jurisdiction in respect of public work as to

which the industrial commissioner is fiscal officer, as defined in this

section, shall furnish to the industrial commissioner the following

information immediately upon signing of a contract for such public work:

(a) the name and address of the contractor engaged by said department of

jurisdiction; (b) the date when the contract was let; (c) the

approximate consideration stipulated for in said contract.

c. The fiscal officer may require any person or corporation performing

such public work to file with the fiscal officer within ten days of

receipt of said request, payroll records, sworn to as to their validity

and accuracy, requested by the fiscal officer, for said public work or

for any public or private work performed by said person or corporation

during the same period of time as said public work. Such payroll records

shall include a copy of each notice required under subdivision one or

two of section one hundred ninety-five of this chapter for every

laborer, worker or mechanic, which shall be subscribed and sworn to or

affirmed as true under penalties of perjury. In addition, the fiscal

officer may require such person or corporation to furnish proof of any

supplements provided or amount paid to or on behalf of laborers, workers

or mechanics in satisfaction of the obligation to provide supplements

pursuant to this section. In the event said person or corporation fails

to provide the requested information within the allotted ten days, the

fiscal officer shall, within fifteen days, order the department of

jurisdiction to immediately withhold from payment to said person or

corporation up to twenty-five percent of the amount, not to exceed one

hundred thousand dollars, to be paid to said person or corporation under

the terms of the contract pursuant to which said public work is being

performed. Said amount withheld shall be immediately released upon

receipt by the department of jurisdiction of a notice from the fiscal

officer indicating that the request for records had been satisfied.

d. Any person who wilfully fails to file the requested payroll records

within ninety days of a demand by the fiscal officer shall be guilty of

a class A misdemeanor, provided, however, that a person who violates

this subdivision after having previously been convicted of violating

this subdivision within the past five years shall be guilty of a class E

felony.

e. (i) Utility companies who, under local law or ordinance, are

required, as a condition of issuance of a permit to use or open a

street, to agree that none but competent workers, skilled in the work

required of them shall be employed thereon and that prevailing scale of

union wages shall be the prevailing wage for the similar titles as

established by the fiscal officer pursuant to this section, paid to

those so employed, shall be required to keep original payrolls or

transcripts thereof, subscribed and sworn to or affirmed by him or her

as true under the penalties of perjury, setting forth the names and

addresses and showing for each workman, laborer, or mechanic the hours

and days worked, the occupations worked, the hourly wage rates paid and

the supplements paid or provided as, and in the manner required by

paragraphs a, b and c of this subdivision.

(ii) Utility company contractors and subcontractors to whom a permit

may be issued, to use or open a street, shall be required to comply with

section two hundred twenty-four-f of this article, as a condition of the

issuance of a permit to use or open a street, to agree that none but

competent workers, skilled in the work required of them shall be

employed thereon and that prevailing scale of union wages shall be the

prevailing wage for the similar titles as established by the fiscal

officer pursuant to this section, paid to those so employed, shall be

required to keep original payrolls or transcripts thereof, subscribed

and sworn to or affirmed by him or her as true under the penalties of

perjury, setting forth the names and addresses and showing for each

workman, laborer, or mechanic the hours and days worked, the occupations

worked, the hourly wage rates paid and the supplements paid or provided

as, and in the manner required by paragraphs a, b and c of this

subdivision.

f. Prevailing wage shall be paid for work performed on a public works

worksite pursuant to this section for any work involving the delivery to

and hauling from such worksites of aggregate supply construction

materials, as well as any return hauls, whether empty or loaded and any

time spent loading/unloading.

g. Prevailing wage shall be paid for work performed on a public works

worksite pursuant to this section for any work involving the delivery to

and hauling from such worksites of concrete and asphalt, as well as any

return hauls, whether empty or loaded and any time spent

loading/unloading, in the counties of Nassau, Putnam, Suffolk, and

Westchester, and in the city of New York.

3-b. 1. Public work advisory board. There is hereby created in the

department an advisory board on public work composed of six members to

be appointed by the governor by and with the advice and consent of the

senate. Two members of the advisory board shall be persons known to

represent the interests of employers in the construction industry, two

persons shall be known to represent the interest of employees therein,

and two members shall be persons appointed to represent the public. The

governor may remove any member when he or she ceases to represent the

interests in whose behalf he or she was appointed. The commissioner of

labor shall be an additional member of such board without any voting

power and act as chairman thereof and shall designate an employee of the

department to be secretary. The board shall meet at the call of the

commissioner of labor and when engaged upon the work of the board each

member, except the commissioner, shall not receive a salary or other

compensation, but shall be reimbursed for reasonable traveling and other

expenses to be audited by the state comptroller.

2. Terms of office. All members of the advisory board shall be

appointed for a term of six years to begin at the expiration of the term

of office of the member whom he is to succeed. Any member appointed to

fill a vacancy occurring otherwise than by expiration of term shall be

appointed for the unexpired term of the member whom he is to succeed.

3-c. The advisory board shall adopt rules and regulations to govern

its own proceedings, and to expedite the making by it of the

examinations and determinations required by this chapter. The members of

the advisory board shall have power:

1. To issue subpoenas for and compel the attendance of witnesses and

the production of books, contracts, papers, documents and other

evidence;

2. To hear testimony and take or cause to be taken depositions of

witnesses residing within or without this state in the manner prescribed

by law for like depositions in civil actions in the supreme court.

Subpoenas and commissions to take testimony shall be issued under the

seal of the department.

3-d. The fiscal officer of any political subdivision of the state,

wherein a public work project is proposed to be constructed, may request

the industrial commissioner to make a classification by trades or

occupations of laborers, workmen and mechanics required to perform the

public work in its completed form. The board shall, when requested by

the industrial commissioner, examine into proposed public work projects

and determine the classification by trades or occupations of laborers,

workmen and mechanics required to perform the public work in its

completed form; and to determine which of same are skilled, semi-skilled

or unskilled. The board shall file with the industrial commissioner its

findings, determinations and recommendations.

3-e. Apprentices will be permitted to work as such only when they are

registered, individually, under a bona fide program registered with the

New York State Department of Labor. The allowable ratio of apprentices

to journeymen in any craft classification shall not be greater than the

ratio permitted to the contractor as to his work force on any job under

the registered program. Any employee listed on a payroll at an

apprentice wage rate, who is not registered as above, shall be paid the

wage rate determined by the New York State Department of Labor for the

classification of work he actually performed. The contractor or

subcontractor will be required to furnish written evidence of the

registration of his program and apprentices as well as of the

appropriate ratios and wage rates, for the area of construction prior to

using any apprentices on the contract work.

4. This section shall not apply to:

a. Stationary firemen in state hospitals;

b. Other persons regularly employed in the state institutions, except

mechanics;

c. Engineers, electricians and elevator men in the bureau of building

management of the office of general services during the annual session

of the legislature.

5. Definitions. a. The "prevailing rate of wage," for the intents and

purposes of this article, shall be the rate of wage paid in the

locality, as hereinafter defined, by virtue of collective bargaining

agreements between bona fide labor organizations and employers of the

private sector, performing public or private work provided that said

employers employ at least thirty per centum of workers, laborers or

mechanics in the same trade or occupation in the locality where the work

is being performed. The prevailing rate of wage shall be annually

determined in accordance herewith by the fiscal officer no later than

thirty days prior to July first of each year, and the prevailing rate of

wage for the period commencing July first of such year through June

thirtieth, inclusive, of the following year shall be the rate of wage

set forth in such collective bargaining agreements for the period

commencing July first through June thirtieth, including those increases

for such period which are directly ascertainable from such collective

bargaining agreements by the fiscal officer in his annual determination.

In the event that it is determined after a contest, as provided in

subdivision six of this section, that less than thirty percent of the

workers, laborers or mechanics in a particular trade or occupation in

the locality where the work is being performed receive a collectively

bargained rate of wage, then the average wage paid to such workers,

laborers or mechanics in the same trade or occupation in the locality

for the twelve-month period preceding the fiscal officer's annual

determination shall be the prevailing rate of wage. Laborers, workers or

mechanics for whom a prevailing rate of wage is to be determined shall

not be considered in determining such prevailing wage.

b. "Supplements," for the intents and purposes of this article, means

all remuneration for employment paid in any medium other than cash, or

reimbursement for expenses, or any payments which are not "wages" within

the meaning of the law, including, but not limited to, health, welfare,

non-occupational disability, retirement, vacation benefits, holiday pay

life insurance, and apprenticeship training.

c. "Prevailing practices in the locality," for the intents and

purposes of this article, shall be the practice of providing

supplements, as hereinbefore defined, as provided by virtue of

collective bargaining agreements between bona fide labor organizations

and employers of the private sector, performing public or private work

provided that said employers employ at least thirty per centum of

workers, laborers or mechanics in the same trade or occupation in the

locality, as determined by the fiscal officer in accordance with the

provisions herein.

With respect to each supplement determined to be one of the prevailing

practices in the locality, the amount of such supplement shall be

determined in the same manner and at the same times as the prevailing

rate of wage is determined pursuant to this section.

d. "Locality" means such areas of the state described and defined for

a trade or occupation in the current collective bargaining agreements

between bona fide labor organizations and employers of the private

sector, performing public and private work.

e. The "fiscal officer," as used herein, shall be deemed to be, on

public work performed by or on behalf of the state or a public benefit

corporation or a county or a village, or other civil division of the

state, except a city, with a population in excess of one million, the

commissioner of labor; and on public work performed by or on behalf of a

city with a population in excess of one million, the comptroller or

other analogous officer of such city.

f. The term "verified complaint," as applied to a claim against a

municipality, shall include a verified demand or verified notice of

claim heretofore, and since the first day of January, nineteen hundred

thirty-five, filed with the fiscal officer of such municipality in

accordance with the provisions of the local charter or local laws or

ordinances relating generally to the filing of claims or demands against

such municipality; and any person who has filed such a demand or notice

shall be deemed to have filed a verified complaint as of the date, not

earlier than the first day of January, nineteen hundred thirty-five,

mentioned in such notice or demand as the commencement of the period in

relation to which such claim or demand is made.

g. "Substantially owned-affiliated entity" shall mean the parent

company of the contractor or subcontractor, any subsidiary of the

contractor or subcontractor, or any entity in which the parent of the

contractor or subcontractor owns more than fifty percent of the voting

stock, or an entity in which one or more of the top five shareholders of

the contractor or subcontractor individually or collectively also owns a

controlling share of the voting stock, or an entity which exhibits any

other indicia of control over the contractor or subcontractor or over

which the contractor or subcontractor exhibits control, regardless of

whether or not the controlling party or parties have any identifiable or

documented ownership interest. Such indicia shall include, power or

responsibility over employment decisions, access to and/or use of the

relevant entity's assets or equipment, power or responsibility over

contracts of the entity, responsibility for maintenance or submission of

certified payroll records, and influence over the business decisions of

the relevant entity.

h. "Entity" shall mean a partnership, association, joint venture,

company, sole proprietorship, corporation or any other form of doing

business.

i. "Parent company" shall mean an entity that directly controls the

contractor or subcontractor.

j. "Subsidiary" shall mean an entity that is controlled directly, or

indirectly through one or more intermediaries, by a contractor or

subcontractor or by the contractor's parent company.

k. "Successor" shall mean an entity engaged in work substantially

similar to that of the predecessor, where there is substantial

continuity of operation with that of the predecessor.

l. "Person" shall mean a human being and shall also include an

"entity" as defined in this article, including, but not limited to, a

contractor or subcontractor.

6. The fiscal officer may, and on the written request of any

interested person shall, require any person or corporation performing

such public work to file with such fiscal officer schedules of the

supplements to be provided and wages to be paid to such laborers,

workmen or mechanics. Any such person or corporation shall, within ten

days after the receipt of written notice of such requirement, file with

the fiscal officer such schedules of wages and supplements. An employer

may contest a determination by the fiscal officer under paragraphs a and

c of subdivision five of this section. The employer must allege and

prove by competent evidence, that the actual percentage of workers,

laborers or mechanics is below the required thirty per centum and during

the pendency of any such contest and until final determination thereof,

the work in question shall proceed under the rate established by the

fiscal officer.

7. Compliance investigations. The fiscal officer as herein defined

shall on a verified complaint in writing of any person interested or of

any employee organization pursuant to subdivision eight-d of this

section, and may on his own initiative cause a compliance investigation

to be made to determine whether the contractor or a subcontractor has

paid the prevailing rate of wages and prevailing practices for

supplements in the same trade or occupation in the locality within the

state where such public work is being performed, or the hours of labor

performed by the workmen, laborers and mechanics employed on such public

work, or both. The fiscal officer or his agents, examiners and

inspectors may examine or cause to be examined the books and records

pertaining to the rate of wages paid and supplements provided to the

laborers, workmen and mechanics on said public work and the hours of

labor performed by such laborers, workmen and mechanics on said public

work. The fiscal officer in such investigation shall be deemed to be

acting in a judicial capacity, and shall have the right to issue

subpoenas, administer oaths and examine witnesses. The enforcement of a

subpoena issued under this section shall be regulated by the civil

practice law and rules. Such fiscal officer shall make either an order,

determination or any other disposition, including but not limited to an

agreed upon settlement and/or stipulation, within six months from the

date of filing of such verified complaint, and where a compliance

investigation is made without the filing of a verified complaint, within

six months from the date a compliance investigation is initiated by such

fiscal officer. Upon the making of said order or determination, or upon

arriving at such agreed upon settlement and/or stipulation, a copy

thereof shall be sent by certified mail, return receipt requested, by

the fiscal officer: (i) to the person and employee organization, if any,

who or which initiated the complaint, (ii) to the person or corporation,

if any, against whom the complaint was brought, and (iii) where a

compliance investigation is made without the filing of a complaint, to

the person who or which was the subject of the compliance investigation.

7-a. The fiscal officer must make an inquiry as to the willfulness of

the alleged violation which is the subject of a compliance investigation

pursuant to subdivision seven of this section. In the event a formal

hearing is held pursuant to subdivision eight of this section, the

fiscal officer, upon a review of the entire record and a finding of

credible evidence, must make a determination, as to the willfulness of

said violation. No finding of willfulness made pursuant to the

provisions of this subdivision shall be dispositive in a criminal

prosecution initiated pursuant to section one hundred ninety-eight-a of

this chapter, or paragraph (d) of subdivision three of this section, or

paragraph (c) of subdivision three-a of this section or any other

provision of law.

8. Hearings. Before issuing an order or determination as provided in

subdivision seven of this section, the fiscal officer shall order a

hearing thereon at a time and place to be specified, and shall give

notice thereof, together with a copy of such complaint or the purpose

thereof, or a statement of the facts disclosed upon such investigation,

which notice shall be served personally or by mail on any person

affected thereby; such person shall have an opportunity to be heard in

respect to the matters complained of at the time and place specified in

such notice, which time shall be not less than five days from the

service of the notice personally or by mail. The fiscal officer in such

hearing shall be deemed to be acting in a judicial capacity, and shall

have the right to issue subpoenas, administer oaths and examine

witnesses. The enforcement of a subpoena issued under this section shall

be regulated by the civil practice law and rules. Such hearing shall be

expeditiously conducted and upon such hearing the fiscal officer shall

determine the issues raised thereon and shall make and file an order in

the office of the fiscal officer stating such determination, and

forthwith serve a copy of such order, with a notice of the filing

thereof, upon the parties to such proceeding, personally or by mail.

Such order shall direct payment of wages or supplements found to be due,

including interest at the rate of interest then in effect as prescribed

by the superintendent of financial services pursuant to section

fourteen-a of the banking law per annum from the date of the

underpayment to the date of the payment, provided, however, that such

interest rate shall not apply to subdivision eight-c of this section.

In addition to directing payment of wages or supplements including

interest found to be due, such order may direct payment of a further sum

as a civil penalty in an amount not exceeding twenty-five percent of the

total amount found to be due. In assessing the amount of the penalty,

due consideration shall be given to the size of the employer's business,

the good faith of the employer, the gravity of the violation, the

history of previous violations and the failure to comply with

recordkeeping or other non-wage requirements. Where the fiscal officer

is the commissioner, the penalty shall be paid to the commissioner for

deposit in the state treasury. Where the fiscal officer is a city

comptroller or other analogous officer, the penalty shall be paid to

said officer for deposit in the city treasury.

Upon the entry of such order any party aggrieved thereby may commence

a proceeding for the review thereof pursuant to article seventy-eight of

the civil practice law and rules within thirty days from the notice of

the filing of the said order in the office of the fiscal officer. Said

proceeding shall be commenced directly in the appellate division of the

supreme court. If such order is not reviewed, or is so reviewed and the

final decision is in favor of the complainant and the order involves or

relates to the rate of wages paid or the supplements provided on such

public work, the complainant or any other person affected may within six

months after the service of notice of the filing of said order, or the

notice of entry of said final decision on review, institute an action

against the person found violating this act for the recovery of the

difference between the sum actually paid or provided and the amount

which should have been paid or provided, together with interest at the

rate of interest provided herein, as determined by said order or

decision, as the case may be, from and after the date of the filing of

said verified complaint, with the fiscal officer or of the filing of the

fiscal officer's report of investigation made on his own initiative.

Provided that no proceeding for judicial review as provided herein shall

then be pending and the time for initiation of such proceeding shall

have expired, the fiscal officer may file with the county clerk of the

county where the employer resides or has a place of business the order

of the fiscal officer containing the amount found to be due. The filing

of such order shall have the full force and effect of a judgment duly

docketed in the office of such clerk. The order may be enforced by and

in the name of the fiscal officer in the same manner, and with like

effect, as that prescribed by the civil practice law and rules for the

enforcement of a money judgment.

8-a. Notwithstanding any inconsistent provision of this chapter or of

any other general, special or local law, ordinance, charter or

administrative code, the prior receipt without protest of the wages,

salary or supplements paid or provided, as the case may be, to the

complainant or any other person affected by such final order, or his

failure to state orally or in writing upon any payroll or receipt which

he is required to sign that the wages, salary or supplements received by

him is received under protest, or to indicate in any other way his

protest against the amount thereof, or that the amount so paid does not

constitute payment in full of the wages or salary due him for the period

covered by such payment, or that the supplements provided do not

constitute the full supplements due him, shall not be a bar to his right

to recover, in accordance with the provisions of subdivision eight, the

difference between the sum actually paid or provided, as the case may

be, and the amount which should have been paid or provided, as the case

may be, as determined by such final order.

8-b. Notwithstanding any inconsistent provision of this chapter or of

any other general, special or local law, ordinance, charter or

administrative code, an employee of a municipal corporation,

irrespective of the title of his position or employment, whose salary or

wage or supplement is fixed by reference to a prevailing rate of wage

determined or to a prevailing practice for supplements determination and

established by a final order in a proceeding instituted under this

section, shall not be barred from his right to recover, in accordance

with the terms of such fixation, the difference between the amount

actually paid to him and the amount which should have been paid to him

or provided, as the case may be, pursuant to such fixation, because of

the prior receipt by him without protest of the salary, wages or

supplements paid or provided to him, as the case may be; or because he

did not previously protest his prior failure to be provided with any

supplement whatsoever; or on account of his failure to state orally or

in writing upon any payroll or receipt which he is required to sign that

the salary or wages or supplements received by him is received under

protest, or on account of his failure to indicate his protest against

the amount or non-provision thereof or that the amount so paid or

provided does not constitute payment or provision, as the case may be,

in full of the salary, wages or supplement due him for the period

covered by such payment.

8-c. Interest at six percentum per annum shall begin to accrue sixty

days after a final determination made by a fiscal officer on the

difference between the prevailing wages so determined, and which should

have been paid to an employee of a municipal corporation, and the amount

actually received by him. Said accumulated interest shall be paid to the

employee when back pay based on the determination is paid to him.

8-d. Notwithstanding any inconsistent provision of this chapter or of

any other law, in a city of one million or more, where a majority of

laborers, workmen or mechanics in a particular civil service title are

members of an employee organization which has been certified or

recognized to represent them pursuant to the provisions of article

fourteen of the civil service law or a local law enacted thereunder, the

public employer and such employee organization shall in good faith

negotiate and enter into a written agreement with respect to the wages

and supplements of the laborers, workmen or mechanics in the title. If

the parties fail to achieve an agreement, only the employee organization

shall be authorized to file a single verified complaint pursuant to

subdivision seven herein, on behalf of the laborers, workmen or

mechanics so represented. Such employee organization shall be the sole

and exclusive representative of such laborers, workmen or mechanics at

any hearing pursuant to subdivision eight herein, and shall be the sole

complainant in the proceeding for all purposes therein, including review

pursuant to article seventy-eight of the civil practice law and rules.

Service by the fiscal officer on the employee organization shall be

sufficient notice to the laborers, workmen or mechanics so represented

for all purposes of subdivision eight herein, except that the issuance

and enforcement of subpoenas shall be regulated by the civil practice

law and rules. Any order, compromise, or settlement determining the

issues raised upon such a proceeding, which has not been taken up for

review by the employee organization, shall be binding upon the laborers,

workmen or mechanics represented by the employee organization. Nothing

herein shall be construed to limit the rights of any laborer, workman or

mechanic who has on file a verified complaint prior to the effective

date of this subdivision.

9. When a final determination has been rendered, any person that

wilfully refuses thereafter to pay the rate of wages or to provide the

supplements determined to be prevailing, or wilfully employs on such

public work, laborers, workmen or mechanics more than the hours per day

determined by said order until modified by order of the fiscal officer

or court and thereby violates the provisions of this section shall be

guilty of a misdemeanor and upon conviction thereof shall be punished,

in accordance with the penal law. A person who violates this subdivision

after having previously been convicted of violating this subdivision

within the past five years shall be guilty of a class E felony, and in

addition thereto the contract on which the violation has occurred shall

be forfeited; and no such person shall be entitled to receive any sum

nor shall any officer, agent or employee of the state or of a municipal

corporation pay the same or authorize its payment from the funds under

his charge or control to any such person for work done upon any

contract, on which the contractor has been convicted of second offense

in violation of the provisions of this section.