Require Prevailing Wage for Developers

Section 1. Subdivisions 1, 5, 8, 12 and 13 of section 230 of the labor law, subdivision 1 as amended by chapter 542 of the laws of 1984, subdivisions 5 and 8 as added by chapter 777 of the laws of 1971, and subdivisions 12 and 13 as added by chapter 547 of the laws of 1998, are amended and seven new subdivisions 15, 16, 17, 18, 19, 20 and 21 are added to read as follows:

1. "Building service employee" or "employee" means any person performing work in connection with the care or maintenance of an existing building, or in connection with the transportation of office furniture or equipment to or from such building, or in connection with the transportation and delivery of fossil fuel to such building, for a contractor under a contract with a public agency which is in excess of one thousand five hundred dollars and the principal purpose of which is to furnish services through the use of building service employees or in connection with a covered development project or lease.

"Building service employee" or "employee" includes, but is not limited, to, watchman, guard, doorman, building cleaner, porter, handyman, janitor, gardener, groundskeeper, stationary fireman, elevator operator and starter, window cleaner, and occupations relating to the collection of garbage or refuse, and to the transportation of office furniture and equipment, and to the transportation and delivery of fossil fuel but does not include clerical, sales, professional, technician and related occupations.

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD10763-03-9

S. 4630 2

"Building service employee" or "employee" also does not include any employee to whom the provisions of articles eight and eight-a of this chapter are applicable.

5. "Wage" includes: (a) basic hourly cash rate of pay; and (b) supplements. The term "supplements" means fringe benefits including medical or hospital care, pensions on retirement or death, compensation for injuries or illness resulting from occupational activity, or insurance to provide any of the foregoing, unemployment benefits, life insurance, disability and sickness insurance, accident insurance, vacation and holiday pay, costs of apprenticeship or other similar programs and other bona fide fringe benefits not otherwise required by federal, state or local law to be provided by the contractor, covered developer, covered lessee or lessor, covered employer, or subcontractor.

8. "Fiscal officer" means the industrial commissioner, except for building service work performed by or on behalf of a city, or where the covered development project or real property subject to a covered lease is located within a city with a population of over one million, in which case "fiscal officer" means the comptroller or other analogous officer of such city.

12. "Parent company" shall mean an entity that directly controls the contractor or subcontractor, or covered developer, or covered lessee or lessor.

13. "Subsidiary" shall mean an entity that is controlled directly, or indirectly through one or more intermediaries, by a contractor or subcontractor, or covered developer, or covered lessee or lessor, or the contractor's, or covered developer's, or covered lessee's or lessor's parent company.

15. "Covered developer" means any entity receiving financial assistance in relation to a covered development project, or any assignee or successor in interest of real property that qualifies as a covered development project.

16. "Covered employer" means any entity, other than a covered developer, or covered lessee or lessor, who employs building service workers at a covered development project or at any real property subject to a covered lease.

17. "Covered lessee" means any entity leasing real property from a public agency.

18. "Covered lessor" means any entity from whom a public agency is leasing commercial office space or commercial office facilities of ten thousand square feet or more, provided that the public agency, whether through a single agreement or multiple agreements, leases no less than fifty-one percent of the total square footage of the building to which the lease or leases apply.

19. "Financial assistance" means assistance that is provided to a covered developer for the improvement or development of real property, economic development, job retention and growth, or other similar purposes, and that is paid in whole or in part by a public agency or agencies, and having a cumulative anticipated total financial value of one million dollars. Financial assistance includes, but is not limited to, cash payments or grants, bond financing, tax abatements or exemptions (including, but not limited to, abatements or exemptions from real property, mortgage recording, sales and uses taxes, or the difference between any payments in lieu of taxes and the amount of real property or other taxes that would have been due if the property were not exempted from the payment of such taxes), tax increment financing, filing fee waivers, energy cost reductions, environmental remediation

S. 4630 3

costs, write-downs in the market value of building, land, or the cost of capital improvements related to real property that, under ordinary circumstances, the public agency would not pay for. Where assistance takes the form of loans or bond financing, the value of the assistance shall be determined based on the difference between the financing cost to a borrower and the cost to a similar borrower that does not receive financial assistance.

20. "Covered lease" means any agreement by a public agency with a covered lessor or lessee.

21. "Covered development project" means a project that has received or is expected to receive financial assistance.

§ 2. The labor law is amended by adding a new section 231-a to read as follows:

§ 231-a. Prevailing wage for covered leases and covered development projects. 1. Covered developers and covered lessees or lessors shall endure that all building service employees performing building service work in connection with a covered development project or covered lease are paid no less than the prevailing wage.

2. The obligation to pay prevailing supplements may be discharged by furnishing any equivalent combinations of fringe benefits or by making equivalent or differential payments in cash under rules and regulations established by the fiscal officer.

3. The public agency providing financial assistance or entering into a covered lease shall require, as a contractual condition of such financial assistance or covered lease, that any building service employee performing building service work in connection with a covered development project or covered lease, regardless of the employing entity, shall be paid no less than the prevailing wage; and any lease, contract for property management services, or contract for the provision of building services, entered into by the covered developer or covered lessee or lessor, and any subcontract thereof, shall contain the following provision: "All building service employees shall be paid no less than the prevailing wage as provided by the fiscal officer as described in section two hundred thirty-four of the Labor Law. Any covered employer, as defined in section two hundred thirty of the Labor Law, shall maintain all records relating to the employment of building service workers as described in section two hundred thirty-three of the Labor Law which are to be provided to the covered developer. Such covered employer shall also submit such statements as required under section two hundred thirty-seven of the Labor Law. This requirement shall apply to any covered development project or real property subject to a covered lease as provided by Article nine of the Labor Law."

4. Upon the awarding of financial assistance or entering into a covered lease by a public agency, the awarding public agency shall immediately furnish to the fiscal officer:

(a) the name and address of the awardee;

(b) the date when the financial assistance was awarded or the covered lease was entered into;

(c) the specific building or facility address or addresses, or locality to which the covered lease or financial assistance pertains, if the financial assistance is targeted to a particular building or buildings, facility or facilities, or locality; and

(d) the anticipated total value of the financial assistance.

5. When the financial assistance to the covered development project applies to a particular building or buildings, facility or facilities, or locality, the prevailing wage shall apply only to such building or

S. 4630 4

buildings, facility or facilities, or locality; however, when the financial assistance is not so limited, the covered development project shall be deemed to include any building or facility in which the covered developer operates within the state, and the prevailing wage requirement set forth in this subdivision shall apply to any building or facility in which the covered developer operates within the state.

6. The fiscal officer shall maintain a list of covered developers, covered lessees or lessors, and covered development projects, including the addresses of each. Such list shall be updated and published as often as is necessary to keep current.

7. Within two weeks of receiving financial assistance or entering into a covered lease, a covered developer, covered lessee or lessor, or covered employer shall post, in the same location and manner that other statutorily required notices are posted, at every such covered development project or real property subject to the covered lease, and provide each building service employee a copy of a written notice which shall be prepared by the fiscal officer, detailing the wages, benefits, and other protections to which building service employees are entitled under this section. Such notice shall also provide the name, address and telephone number of the fiscal officer and a statement advising building service employees that if they have been paid less than the prevailing wage they may notify the fiscal officer and request an investigation or bring suit in a court of competent jurisdiction. Such notices shall be posted in English and in any other language which at least twenty percent of employees speak as a primary language. Such notice shall remain posted for the time that the requirements of this section shall apply and shall be adjusted periodically to reflect the current prevailing wage for building service employees. In addition to posting such notice, the covered developer, covered lessee or lessor, or covered employer shall provide each individual employee a copy of the notice in English or any other language spoken by the employee as a primary language, so long as the fiscal officer has made such notice available to employers in such language on its website. The fiscal officer shall make available on its website sample written notices explaining the rights of building service employees under this section and shall translate such sample written notices into such languages it deems appropriate.

8. The requirements of this section shall apply for the term of the financial assistance, ten years from the opening date of the financially assisted project, the duration of any written agreement between a public agency and the covered developer providing for financial assistance, or the duration of the covered lease, whichever is longer.

9. This section shall not preempt any public agency from establishing higher minimum wages for covered developers or covered lessees or lessors receiving financial assistance or leasing from or to a public agency. Nor shall any covered developer, covered lessee or lessor, or covered employer be preempted from paying a wage higher than the prevailing wage.

§ 3. Section 232 of the labor law, as added by chapter 777 of the laws of 1971, is amended to read as follows:

§ 232. Overtime. An employee, employed by a contractor or employed at a covered development project, or at real property subject to a covered lease, who works more than eight hours in any one day or more than forty hours in any workweek shall be paid wages for such overtime at a rate not less than one-and-one-half times his prevailing basic cash hourly rate.

S. 4630 5

§ 4. Subdivisions 1, 2 and 3 of section 233 of the labor law, as added by chapter 777 of the laws of 1971, are amended and two new subdivisions 5 and 6 are added to read as follows:

1. In all cases where service work is being performed pursuant to a contract, or covered lease, or covered development project therefor, the contractor, or covered developer, or covered lessee or lessor, shall keep original payrolls or transcripts thereof, subscribed and confirmed by him as true, under penalties of perjury, showing the hours and days worked by each employee, the craft, trade or occupation at which he was employed, and the wages paid. A covered developer or covered lessee or lessor may satisfy this requirement by obtaining copies of employment records from a covered employer.