STATE OF NEW YORK ________________________________________________________________________ 3350--A R. R. 14 2021-2022 Regular Sessions IN ASSEMBLY January 22, 2021 ___________ Introduced by M. of A. JOYNER, BRONSON, OTIS, SIMON, GONZALEZ-ROJAS, KELLES, L. ROSENTHAL, BRABENEC -- read once and referred to the Committee on Labor -- reported and referred to the Committee on Codes -- reported and referred to the Committee on Rules -- ordered to a third reading, passed by Assembly and delivered to the Senate, recalled from the Senate, vote reconsidered, bill amended, ordered reprinted, retaining its place on the special order of third reading AN ACT to amend the labor law and the general business law, in relation to actions for non-payment of wages The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The labor law is amended by adding a new section 198-e to 2 read as follows: 3 § 198-e. Construction industry wage theft. 1. A contractor making or 4 taking a construction contract shall assume liability for any debt 5 resulting from an action under section one hundred ninety-eight of this 6 article, owed to a wage claimant or third party on the wage claimant's 7 behalf, incurred by a subcontractor at any tier acting under, by, or for 8 the contractor or its subcontractors for the wage claimant's performance 9 of labor. 10 2. No agreement or release by an employee or subcontractor to waive 11 liability assigned to a contractor under this section shall be valid 12 except as otherwise provided herein. The provisions of this section 13 shall not be deemed to impair the rights of a contractor to maintain an 14 action against a subcontractor for amounts for owed wages that are paid 15 by a contractor pursuant to this section. 16 3. Notwithstanding any other provision of law, the remedies available 17 for a claim pursuant to subdivision one of this section shall only be 18 civil and administrative actions. 19 4. In the case of a private civil action by an employee, such employee 20 may designate any person, organization or collective bargaining agent EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04456-13-1

A. 3350--A 2 1 authorized to file a complaint with the commissioner pursuant to 2 section one hundred ninety-six-a of this article, to make a wage claim 3 on his or her behalf. 4 5. In the case of an action against a subcontractor, the contractor 5 shall be considered jointly and severally liable for any unpaid wages, 6 benefits, wage supplements, and any other remedies available pursuant to 7 the requirements of section one hundred ninety-eight of this article. 8 6. Nothing herein shall preclude the attorney general from bringing a 9 civil action to collect unpaid wages and penalties on behalf of employ- 10 ees pursuant to this section. 11 7. A contractor or any other person shall not evade, or commit any act 12 that negates, the requirements of this section, provided, however, that 13 this section shall not be deemed to prohibit a contractor or subcontrac- 14 tor from establishing by contract or enforcing any other lawful remedies 15 against a subcontractor it hires for liability created by violation of 16 this section, provided that such contract or arrangement does not dimin- 17 ish the right of employees to bring an action under the provisions of 18 this section. 19 8. As used in this section: 20 a. "Construction contract" means a written or oral agreement for the 21 construction, reconstruction, alteration, maintenance, moving or demoli- 22 tion of any building, structure or improvement, or relating to the exca- 23 vation of or other development or improvement to land. For purposes of 24 this section, a construction contract shall not include: any contract 25 which is subject to article eight of this chapter; a home improvement 26 contract for the performance of a home improvement between a home 27 improvement contractor and the owner of an owner-occupied dwelling; and 28 a home construction contract for one- or two-family dwelling units 29 except where such contract or contracts results in the construction of 30 more than ten one- or two-family owner-occupied dwellings at one project 31 site annually. 32 b. "Contractor" means any person, firm, partnership, corporation, 33 association, company, organization or other entity, including a 34 construction manager, general or prime contractor, joint venture, or any 35 combination thereof, which enters into a construction contract with an 36 owner. 37 c. "Owner" means any person, firm, partnership, corporation, company, 38 association or other organization or other entity, or a combination of 39 any thereof, (with an ownership interest, whether the interest or estate 40 is in fee, as vendee under a contract to purchase, as lessee or another 41 interest or estate less than fee) that causes a building, structure or 42 improvement, new or existing, to be constructed, altered, repaired, 43 maintained, moved or demolished or that causes land to be excavated or 44 otherwise developed or improved. 45 d. "Subcontractor" means any person, firm, partnership, corporation, 46 company, association, organization or other entity, or any combination 47 thereof, which is a party to a contract with a contractor, and/or party 48 to a contract with the contractor's subcontractors at any tier to 49 perform any portion of work within the scope of the contractor's 50 construction contract with the owner, including where the subcontractor 51 has no direct privity of contract with the contractor. 52 9. Any liability assigned to a contractor pursuant to the provisions 53 of this section shall be applicable for any claims occurring no later 54 than three years prior to the initiation of such claim in a court of 55 competent jurisdiction or the commencement of a civil action brought 56 forth by the attorney general or department. The provisions of this

A. 3350--A 3 1 section shall not be deemed to diminish, impair, or otherwise infringe 2 on any other rights of an employee provided pursuant to this chapter, 3 including the right of an employee to bring an action against any 4 employer under the provisions of section one hundred ninety-eight of 5 this article. 6 10. Nothing in this section shall be deemed to diminish the rights, 7 privileges, or remedies of any employee under any collective bargaining 8 agreement. The provisions of this section may be waived by a collective 9 bargaining agreement with a bona fide building and construction trade 10 labor organization which has established itself, and/or its affiliates, 11 as the collective bargaining representative for persons performing work 12 on a project, provided that for such waiver to be valid, it shall 13 explicitly reference this section. Provided, however, that such waiver 14 shall not diminish or impair the rights of an employee provided under 15 any other section of this chapter. 16 § 2. The general business law is amended by adding a new section 756-f 17 to read as follows: 18 § 756-f. Wage theft prevention and enforcement. 1. Upon request of a 19 contractor, or a contractor's subcontractor, to any subcontractor which 20 performs any portion of work within the scope of the contractor's 21 construction contract with an owner, such subcontractor shall provide 22 certified payroll records which, at a minimum, contain all lawfully 23 required information required for all employees providing labor on the 24 project. Such payroll records shall contain sufficient information to 25 apprise the contractor or subcontractor of such subcontractor's payment 26 status in paying wages and making any applicable fringe or other benefit 27 payments or contributions to a third party on its employee's behalf. 28 Payroll records shall be marked or redacted to an extent only to prevent 29 disclosure of an individual's full social security number but shall 30 provide the last four digits of the social security number. 31 2. Upon request of a contractor, or a contractor's subcontractor, to 32 any subcontractor which performs any portion of work within the scope of 33 the contractor's construction contract with an owner, such subcontractor 34 shall provide: (a) the names of all workers of such subcontractor on the 35 project, including the names of all those designated as independent 36 contractors; (b) when applicable, the name of the contractor's subcon- 37 tractor with whom such subcontractor is under contract; (c) the antic- 38 ipated contract start date; (d) the scheduled duration of work; (e) when 39 applicable, local unions with whom such subcontractor is a signatory 40 contractor; and (f) the name, address and phone number of a contact for 41 such subcontractor. 42 3. Failure to timely comply with a request for information as provided 43 herein shall be a basis for a contractor to withhold payments owed to a 44 subcontractor at any tier. 45 4. Unless otherwise required by law, a contractor or subcontractor 46 shall not communicate an individual's personal identifying information 47 to the general public. For purposes of this section, "personal identify- 48 ing information" shall have the same definition as provided for in para- 49 graph (d) of subdivision one of section two hundred three-d of the labor 50 law. 51 5. For the purposes of this section, "contractor" means any person, 52 firm, partnership, corporation, association, company, organization or 53 other entity, including a construction manager, general or prime 54 contractor, joint venture, or any combination thereof, which enters into 55 a construction contract with an owner.

A. 3350--A 4 1 6. For the purposes of this section, "owner" means any person, firm, 2 partnership, corporation, company, association or other organization or 3 other entity, or a combination of any thereof, (with an ownership inter- 4 est, whether the interest or estate is in fee, as vendee under a 5 contract to purchase, as lessee or another interest or estate less than 6 fee) that causes a building, structure or improvement, new or existing, 7 to be constructed, altered, repaired, maintained, moved or demolished or 8 that causes land to be excavated or otherwise developed or improved. 9 7. For the purposes of this section, "subcontractor" means any person, 10 firm, partnership, corporation, company, association, organization or 11 other entity, or any combination thereof, which is a party to a contract 12 with a contractor, and/or party to a contract with the contractor's 13 subcontractors at any tier, to perform any portion of work within the 14 scope of the contractor's construction contract with the owner, includ- 15 ing where the subcontractor has no direct privity of contract with the 16 contractor. 17 § 3. Severability. If any provision of this act, or any application of 18 any provision of this act, is held to be invalid, that shall not affect 19 the validity or effectiveness of any other provision of this act, or of 20 any other application of any provision of this act, which can be given 21 effect without that provision or application; and to that end, the 22 provisions and applications of this act are severable. 23 § 4. This act shall take effect on the one hundred twentieth day after 24 it shall have become a law and shall apply to construction contracts 25 entered into, renewed, modified or amended on or after such effective 26 date.

Relates to actions for non-payment of wages

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