Guarantee Utility Workers Prevailing Wage

Section 1. Section 230 of the labor law, as added by chapter 777 of the laws of 1971, subdivision 1 as amended and subdivision 9 as added by chapter 542 of the laws of 1984, subdivision 4 as amended by chapter 678 of the laws of 2007, and subdivisions 10, 11, 12, 13 and 14 as added by chapter 547 of the laws of 1998, is amended to read as follows:

§ 230. Definitions. As used in this article:

1. "Building service employee" or "employee" means any person performing work in connection with the care or maintenance of an existing building or facility, or in connection with the transportation of office furniture or equipment to or from such building or facility, or in connection with the transportation and delivery of fossil fuel to such building or facility, 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 at a covered utility location.

"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.

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

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

[ ] is old law to be omitted.

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ee" also does not include any employee directly or indirectly performing work for or on behalf of a business improvement district unless such work would have been subject to the requirements of this article prior to the effective date of a chapter of the laws of two thousand nineteen that amended this subdivision. The preceding sentence shall not be construed to affect any determination hereafter by the fiscal officer or a court of competent jurisdiction as to the applicability or inapplicability to such work of such requirements.

2. "Building service work" or "service work" means work performed by a building service employee, but does not include work performed for a contractor under a contract for the furnishing of services by radio, telephone, telegraph or cable companies[; and any contract for public utility services, including electric light and power, water, steam and gas].

3. "Public agency" means the state, any of its political subdivisions, a public benefit corporation, a public authority or commission or special purpose district board appointed pursuant to law, and a board of education.

4. "Contractor" means any employer who employs employees to perform building service work under a contract with a public agency and shall include any of the contractor's subcontractors.

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 or subcontractor, covered utility or covered employer.

6. "Prevailing wage" means the wage determined by the fiscal officer to be prevailing for the various classes of building service employees in the locality. In no event shall the basic hourly cash rate of pay be less than the statutory minimum wage established by article nineteen of this chapter, or, in a city with a local law requiring a higher minimum wage on city contract work, less than the minimum wage specified in such local law.

7. "Locality" means the state, a town, city, village or other civil division or area of the state as determined by the fiscal officer. The fiscal officer may fix a different geographic area in determining the locality for the prevailing basic hourly cash rate of pay and the locality for prevailing supplements.

8. "Fiscal officer" means the industrial commissioner, except for building service work performed by or on behalf of a city, or where the covered utility location is located within a city with a population of one million or more in which case "fiscal officer" means the comptroller or other analogous officer of such city.

9. "Fossil fuel" shall mean coal, petroleum products and fuel gases. "Coal" shall include bituminous coal, anthracite coal and lignite. "Fuel gases" shall include but not be limited to methane, natural gas, liquefied natural gas and manufactured fuel gases. "Petroleum products" shall include all products refined or rerefined from synthetic or crude oil or oil extracted from other sources, including natural gas liquids. Provided that nothing in this subdivision shall affect the exclusion for public utility services set forth in subdivision two of this section.

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10. "Substantially-owned affiliated entity" shall mean the parent company of the contractor, covered utility, or subcontractor, any subsidiary of the contractor, covered utility, covered employer, or subcontractor, or any entity in which the parent of the contractor, covered utility, covered employer, 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, covered utility, covered employer, 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, covered utility, covered employer, or subcontractor or over which the contractor, covered utility, covered employer, 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.

11. "Entity" shall mean a partnership, association, joint venture, company, sole proprietorship, corporation or any other form of doing business.

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

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

14. "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.

15. "Covered utility" shall mean any entity other than a municipal corporation that distributes electric light or power, or gas or steam services at retail rates regulated by the public service commission pursuant to a franchise granted under the provisions of section sixtyeight or eighty-one of the public service law, and any substantiallyowned affiliated entity of such covered utility.

16. "Covered utility location" shall mean any real property, including facilities used in the generation, storage, transmission, distribution or sale of gas, electricity, steam, owned or leased by a covered utility provided that where such covered utility location is an office space, such office space shall be a covered utility location only if it is larger than one hundred thousand square feet; and further provided that if such office space is leased, such office space shall be a covered utility location only if through a single agreement or multiple agreements no less than fifty-one percent of the total square footage of the office space is leased by the covered utility.

17. "Covered employer" shall mean any entity, other than a covered utility that employs building service employees at a covered utility location.

§ 2. Subdivisions 1, 2, 3 and 6 of section 231 of the labor law, as added by chapter 777 of the laws of 1971, are amended and a new subdivision 8 is added to read as follows:

1. Every contractor shall pay a service employee under a contract for building service work a wage of not less than the prevailing wage in the locality for the craft, trade or occupation of the service employee. Covered utilities shall ensure that all building service employees

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performing building service work at a covered utility location regardless of the employing entity are paid no less than the prevailing wage.

2. The obligation of a contractor or covered utility 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. Each contract for building service work shall contain as part of the specifications thereof a schedule of the wages required to be paid to the various classes of service employees on such work, and each such contract shall further contain a provision obligating the contractor to pay each employee on such work not less than the wage specified for his craft, trade or occupation in such schedule. Any lease, contract for management services or any other contract pertaining to the provision of building services at a covered utility location entered into by a covered utility 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 and thirty-three of the labor law which are to be provided to the covered utility. This requirement shall apply to any covered utility location as provided by article nine of the labor law."

6. No later than the first day upon which work on said contract is performed by any employee, or within sixty days of the effective date of a chapter of the laws of two thousand nineteen that amended this subdivision the contractor or covered utility shall post in a prominent and accessible place on the site of the work a legible statement of the wages to be paid to the workmen employed thereon.

8. This section shall not preempt any public agency from establishing higher minimum wages for employees performing building service work at covered utilities. Nor shall any covered utility be preempted from paying 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 at a covered utility location or by a contractor, 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.

§ 4. Section 233 of the labor law, as added by chapter 777 of the laws of 1971, is amended to read as follows:

§ 233. Record keeping. 1. In all cases where service work is being performed pursuant to a contract therefor or at a covered utility location, the contractor or covered utility 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 utility may satisfy this requirement by obtaining copies of employment records from a covered employer.

2. Where the wages paid include sums which are not paid directly to the workmen weekly and which are expended for supplements, the records required to be maintained shall include a record of such hourly payment on behalf of such employees, the supplement for which such payment has been made, and the name and address of the person to whom such payment has been made. In all such cases, the contractor or covered utility

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shall keep a true and inscribed copy of the agreement under which such payments are made, a record of all net payments made thereunder, and a list of all persons for whom such payments are made.

3. The records required to be maintained shall be kept on the site of the work during all of the time that work under the contract is being performed or for three years after completion for a covered utility.

4. All records required to be maintained shall be preserved for a period of three years after the completion of work.