N.Y. Labor Law § 224-a: Prevailing wage requirements applicable to construction projects performed under private contract

§ 224-a. Prevailing wage requirements applicable to construction

projects performed under private contract. 1. Subject to the provisions

of this section, each "covered project" as defined in this section shall

be subject to prevailing wage requirements in accordance with section

two hundred twenty and two hundred twenty-b of this article. A "covered

project" shall mean construction work done under contract which is paid

for in whole or in part out of public funds as such term is defined in

this section where the amount of all such public funds, when aggregated,

is at least thirty percent of the total construction project costs and

where such project costs are over five million dollars except as

provided for by section two hundred twenty-four-c of this article.

2. For purposes of this section, "paid for in whole or in part out of

public funds" shall mean any of the following:

a. The payment of money, by a public entity, or a third party acting

on behalf of and for the benefit of a public entity, directly to or on

behalf of the contractor, subcontractor, developer or owner that is not

subject to repayment;

b. The savings achieved from fees, rents, interest rates, or other

loan costs, or insurance costs that are lower than market rate costs;

savings from reduced taxes as a result of tax credits, tax abatements,

tax exemptions or tax increment financing; savings from payments in lieu

of taxes; and any other savings from reduced, waived, or forgiven costs

that would have otherwise been at a higher or market rate but for the

involvement of the public entity;

c. Money loaned by the public entity that is to be repaid on a

contingent basis;

d. Credits that are applied by the public entity against repayment of

obligations to the public entity; or

e. Benefits under section four hundred sixty-seven-m of the real

property tax law.

3. For purposes of this section, "paid for in whole or in part out of

public funds" shall not include:

a. Benefits under section four hundred twenty-one-a of the real

property tax law;

b. Funds that are not provided primarily to promote, incentivize, or

ensure that construction work is performed, which would otherwise be

captured in subdivision two of this section;

c. Funds used to incentivize or ensure the development of a

comprehensive sewage system, including connection to existing sewer

lines or creation of new sewage lines or sewer capacity, provided,

however, that such work shall be deemed to be a public work covered

under the provisions of this article;

d. tax benefits provided for projects the length or value of which are

not able to be calculated at the time the work is to be performed;

e. tax benefits related to brownfield remediation or brownfield

redevelopment pursuant to section twenty-one, twenty-two, one hundred

eighty-seven-g or one hundred eighty-seven-h of the tax law, subdivision

seventeen or eighteen of section two hundred ten-B of the tax law,

subsection (dd) or (ee) of section six hundred six of the tax law, or

subdivision (u) or (v) of section fifteen hundred eleven of the tax law;

f. funds provided pursuant to subdivision three of section

twenty-eight hundred fifty-three of the education law;

g. any other public monies, credits, savings or loans, determined by

the public subsidy board created in section two hundred twenty-four-c of

this article as exempt from this definition; and

h. benefits under section four hundred eighty-five-x of the real

property tax law.

4. For purposes of this section "covered project" shall not include

any of the following:

a. Construction work on one or two family dwellings where the property

is the owner's primary residence, or construction work performed on

property where the owner of the property owns no more than four dwelling

units;

b. Construction work performed under a contract with a not-for-profit

corporation as defined in section one hundred two of the not-for-profit

corporation law, other than a not-for-profit corporation formed

exclusively for the purpose of holding title to property and collecting

income thereof or any public entity as defined in this section, where

the not-for-profit corporation has gross annual revenue and support less

than five million dollars;

c. Construction work performed on a multiple residence and/or

ancillary amenities or installations that is wholly privately owned in

any of the following circumstances except as provided for by section two

hundred twenty-four-c of this article:

(i) where no less than twenty-five percent of the residential units

are affordable and shall be retained subject to an anticipated

regulatory agreement with a local, state, or federal governmental

entity, or a not-for-profit entity with an anticipated formal agreement

with a local, state, or federal governmental entity for purposes of

providing affordable housing in a given locality or region provided that

the period of affordability for a residential unit deemed affordable

under the provisions of this paragraph shall be for no less than fifteen

years from the date of construction; or

(ii) where no less than thirty-five percent of the residential units

involves the provision of supportive housing services for vulnerable

populations provided that such units are subject to an anticipated

regulatory agreement with a local, state, or federal governmental

entity; or

(iii) any newly created programs for affordable or subsidized housing

as determined by the public subsidy board established by section two

hundred twenty-four-c of this article.

d. Construction work performed on a manufactured home park as defined

in paragraph three of subdivision a of section two hundred thirty-three

of the real property law where the manufactured home park is subject to

a regulatory agreement with a local, state, or federal governmental

entity for no less than fifteen years;

e. Construction work performed under a pre-hire collective bargaining

agreement between an owner or contractor and a bona fide building and

construction trade labor organization which has established itself as

the collective bargaining representative for all persons who will

perform work on such a project, and which provides that only contractors

and subcontractors who sign a pre-negotiated agreement with the labor

organization can perform work on such a project, or construction work

performed under a labor peace agreement, project labor agreement, or any

other construction work performed under an enforceable agreement between

an owner or contractor and a bona fide building and construction trade

labor organization;

f. Construction work performed on projects funded by section sixteen-n

of the urban development corporation act or the downtown revitalization

initiative;

g. Construction work and engineering and consulting services performed

in connection with the installation of a renewable energy system,

renewable heating or cooling system, or energy storage system, with a

capacity equal to or under five megawatts alternating current;

h. Construction work performed on supermarket retail space built or

renovated with tax incentives provided under the food retail expansion

to support health (FRESH) program through the New York city industrial

development agency;

i. Construction work performed for interior fit-outs and improvements

under ten thousand square feet through small business incubation

programs operated by the New York city economic development corporation;

j. Construction work on space to be used as a school under sixty

thousand square feet, pursuant to a lease from a private owner to the

New York city department of education and the school construction

authority; or

k. Construction work performed on projects that received tax benefits

related to historic rehabilitation pursuant to subdivision twenty-six of

section two hundred ten-B of the tax law, subsection (oo) or (pp) of

section six hundred six of the tax law, or subdivision (y) of section

fifteen hundred eleven of the tax law.

5. For purposes of this section, "public entity" shall include, but

shall not be limited to, the state, a local development corporation as

defined in subdivision eight of section eighteen hundred one of the

public authorities law or section fourteen hundred eleven of the

not-for-profit corporation law, a municipal corporation as defined in

section one hundred nineteen-n of the general municipal law, an

industrial development agency formed pursuant to article eighteen-A of

the general municipal law or industrial development authorities formed

pursuant to article eight of the public authorities law, and any state,

local or interstate or international authorities as defined in section

two of the public authorities law; and shall include any trust created

by any such entities.

6. For purposes of this section, "construction" means work which shall

be as defined by the public subsidy board to require payment of

prevailing wage, and which may involve the employment of laborers,

workers, or mechanics.

7. For purposes of this section and section two hundred twenty-four-b

of this article, the "fiscal officer" shall be deemed to be the

commissioner.

8. The enforcement of any construction work deemed to be a covered

project pursuant to this section, and any additional requirements, shall

be subject, in addition to this section, only to the requirements of

sections two hundred twenty, two hundred twenty-four-b, two hundred

twenty-four-c, and two hundred twenty-b of this article and within the

jurisdiction of the fiscal officer; provided, however, nothing contained

in this section shall be deemed to construe any covered project as

otherwise being considered public work pursuant to this article; and

further provided:

a. The owner or developer of such covered project shall certify under

penalty of perjury within five days of commencement of construction work

whether the project at issue is subject to the provisions of this

section through the use of a standard form developed by the fiscal

officer.

b. The owners or developers of a property who are undertaking a

project under private contract, may seek guidance from the public

subsidy board contained in section two hundred twenty-four-c of this

article, and such board may render an opinion as to whether or not the

project is a covered project within the meaning of this article. Any

such determination shall not be reviewable by the fiscal officer, nor

shall it be reviewable by the department pursuant to section two hundred

twenty of this article.

c. The owner or developer of a covered project shall be responsible

for retaining original payroll records in accordance with section two

hundred twenty of this article for a period of six years from the

conclusion of such work. All payroll records maintained by an owner or

developer pursuant to this section shall be subject to inspection on

request of the fiscal officer. Such owner or developer may authorize the

prime contractor of the construction project to take responsibility for

retaining and maintaining payroll records, but will be held jointly and

severally liable for any violations of such contractor. All records

obtained by the fiscal officer shall be subject to the Freedom of

Information Law.

d. Each public entity providing any of the public funds listed in

subdivision two of this section to an owner, developer, contractor or

subcontractor of a project shall identify the nature and dollar value of

such funds and whether any such funds are excluded under subdivision

three of this section and shall so notify the recipient of such funds of

such determination and of their obligations under paragraph a of this

subdivision.

e. The fiscal officer may issue rules and regulations governing the

provisions of this section. Violations of this section shall be grounds

for determinations and orders pursuant to section two hundred twenty-b

of this article.

9. Each owner and developer subject to the requirements of this

section shall comply with the objectives and goals of minority and

women-owned business enterprises pursuant to article fifteen-A of the

executive law and service-disabled veteran-owned businesses pursuant to

article seventeen-B of the executive law. The department in consultation

with the directors of the division of minority and women's business

development and of the division of service-disabled veterans' business

development shall make training and resources available to assist

minority and women-owned business enterprises and service-disabled

veteran-owned business enterprises on covered projects achieve and

maintain compliance with prevailing wage requirements. The department

shall make such training and resources available online and shall afford

minority and women-owned business enterprises and service-disabled

veteran-owned business enterprises an opportunity to submit comments on

such training.

10. a. The fiscal officer shall report to the governor, the temporary

president of the senate, and the speaker of the assembly by July first,

two thousand twenty-two, and annually thereafter, on the participation

of minority and women-owned business enterprises in relation to covered

projects and contracts for public work subject to the provisions of this

section and section two hundred twenty of this article respectively as

well as the diversity practices of contractors and subcontractors

employing laborers, workers, and mechanics on such projects.

b. Such reports shall include aggregated data on the utilization and

participation of minority and women-owned business enterprises, the

employment of minorities and women in construction-related jobs on such

projects, and the commitment of contractors and subcontractors on such

projects to adopting practices and policies that promote diversity

within the workforce. The reports shall also examine the compliance of

contractors and subcontractors with other equal employment opportunity

requirements and anti-discrimination laws, in addition to any other

employment practices deemed pertinent by the commissioner.

c. The fiscal officer may require any owner or developer to disclose

information on the participation of minority and women-owned business

enterprises and the diversity practices of contractors and

subcontractors involved in the performance of any covered project. It

shall be the duty of the fiscal officer to consult and to share such

information in order to effectuate the requirements of this section.

11. If construction work is not deemed to be a covered project,

whether by virtue of an exclusion of such project under subdivision four

of this section, or by virtue or not receiving sufficient public money

to be deemed "paid for in whole or in part out of public funds", such

project shall not be subject to the requirements of sections two hundred

twenty and two hundred twenty-b of this article.