STATE OF NEW YORK ________________________________________________________________________ 3337 2021-2022 Regular Sessions IN SENATE January 28, 2021 ___________ Introduced by Sen. BAILEY -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the labor law, the general municipal law and the public officers law, in relation to the omnibus prevailing wage enforcement act; and to amend chapter 511 of the laws of 1995, relating to estab- lishing a public work enforcement fund and making an appropriation therefor, in relation to moneys accumulated in the public work enforcement fund The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as the "omnibus 2 prevailing wage enforcement act". 3 § 2. The labor law is amended by adding a new section 223-a to read as 4 follows: 5 § 223-a. Prevailing wage fraud inspector general. 1. Definitions. 6 For the purposes of this section, the following definitions shall apply: 7 (a) "Inspector general" means the prevailing wage fraud inspector 8 general created by this section. 9 (b) "Assistant inspector general" means a prevailing wage fraud 10 assistant inspector general created by this section. 11 2. Appointment, compensation and removal. Notwithstanding any other 12 provision of law, the governor shall appoint the inspector general. The 13 board shall employ and the governor shall fix the compensation of the 14 inspector general. The inspector general shall, and may do so without 15 civil service examination, appoint and the board shall employ, such 16 assistant inspector general and other persons as he or she deems neces- 17 sary, determine their duties and fix their compensation. Such assistant 18 inspector general shall assist the inspector general in carrying out the 19 inspector general's duties and responsibilities as set forth in this 20 section and shall have such powers as granted the inspector general 21 under this section. Employees appointed pursuant to this section with- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06798-01-1

S. 3337 2 1 out civil service examination shall be placed in the noncompetitive 2 class of the competitive service pursuant to subdivision two-a of 3 section forty-two of the civil service law and shall serve at the pleas- 4 ure of the governor. 5 3. Powers, duties and responsibilities. The inspector general shall 6 investigate violations of the laws and regulations pertaining to the 7 operation of prevailing wage provisions. The inspector general shall 8 have the following powers, duties and functions: 9 (a) to conduct and supervise investigations, within or without this 10 state, of possible fraud and other violations of laws, rules and regu- 11 lations pertaining to prevailing wage provisions; 12 (b) to subpoena witnesses, administer oaths or affirmations, take 13 testimony and compel the production of such books, papers, records and 14 documents as the inspector general may deem to be relevant to an inves- 15 tigation undertaken pursuant to this section; 16 (c) to report to the attorney general or other appropriate law 17 enforcement agency, violations found through investigations undertaken 18 pursuant to this section and to provide such materials and assistance as 19 may be necessary or appropriate for the successful investigation and 20 prosecution of violations of this chapter; 21 (d) to submit a written report, on an annual basis, to the governor 22 and to the chair of the board, listing all activities undertaken to the 23 extent such activities can be disclosed pursuant to subdivision five of 24 this section; and 25 (e) to recommend legislative and regulatory changes to the governor 26 and to the chair of the board. 27 4. Cooperation of agency officials and employees. (a) In addition to 28 the authority otherwise provided by this section, the inspector general, 29 in carrying out the provisions of this section, is authorized: 30 (i) to have full and unrestricted access to all records, reports, 31 audits, reviews, documents, papers, recommendations or other material 32 maintained by the board or any other state agency relating to prevailing 33 wage provisions, with respect to which the inspector general has respon- 34 sibilities under this section; and 35 (ii) to request such information, assistance and cooperation from any 36 federal, state or local government, department, board, bureau, commis- 37 sion, or other agency or unit thereof as may be necessary for carrying 38 out the duties and responsibilities enjoined upon the inspector general 39 by this section. State and local agencies or units thereof are hereby 40 authorized and directed to provide such information, assistance and 41 cooperation. 42 (b) No person shall prevent, seek to prevent, interfere with, obstruct 43 or otherwise hinder any investigation being conducted pursuant to this 44 section. 45 5. Disclosure of information. The inspector general shall not publicly 46 disclose information which is: 47 (a) a part of an ongoing investigation or prosecution; or 48 (b) specifically prohibited from disclosure by any other provision of 49 law. 50 § 3. Sections 1 and 2 of chapter 511 of the laws of 1995, relating to 51 establishing a public work enforcement fund and making an appropriation 52 therefor, as amended by chapter 407 of the laws of 2005, are amended to 53 read as follows: 54 Section 1. The state comptroller shall establish a public work 55 enforcement fund. Each state agency or public benefit corporation enter- 56 ing into a contract for any construction, reconstruction, renovation,

S. 3337 3 1 repair, maintenance or other improvement, as defined in subdivision 2 of 2 section 220 of the labor law, shall make a transfer of 0.10 of one 3 percent of the total cost of the contract to such fund. All transfers 4 shall be made available to the labor department for labor law enforce- 5 ment. All moneys transferred to and accumulated in the public work 6 enforcement fund shall be dedicated to enforcement of labor law articles 7 8 and 9 and all moneys appropriated from such fund shall be used for 8 such purpose. Provided further that such dedicated funds shall be used 9 for training, labor and related costs for investigators, hearing offi- 10 cers and administrative staff to ensure that staffing levels for such 11 personnel are maintained at [~~an appropriate level~~] a level equal to or 12 greater than the staffing level for such personnel for fiscal year 13 2019-2020. 14 § 2. The sum of [~~two million four hundred thousand dollars~~ 15 ~~($2,400,000), or so much thereof as may be~~] moneys so accumulated[,] is 16 hereby appropriated to the department of labor from any moneys credited 17 to the public work enforcement fund created pursuant to section one of 18 this act for the purposes of carrying out the provisions of this act. 19 Such sum shall be payable on the audit and warrant of the state comp- 20 troller on vouchers certified or approved by the commissioner of labor, 21 or his duly designated representative in the manner provided by law. No 22 expenditure shall be made from this appropriation until a certificate of 23 approval of availability shall have been issued by the director of the 24 budget and filed with the state comptroller and a copy filed with the 25 chair of the senate finance committee and the chair of the assembly ways 26 and means committee. Such certificate may be amended from time to time 27 by the director of the budget and a copy of each such amendment shall be 28 filed with the state comptroller, the chair of the senate finance 29 committee and the chair of the assembly ways and means committee. 30 § 4. Section 220 of the labor law is amended by adding a new subdivi- 31 sion 10 to read as follows: 32 10. In any instance where the variation between the low bid on any 33 public work contract or subcontract with the state, any municipal corpo- 34 ration or public body and the next lowest bid is ten percent or more, or 35 is ten percent lower than the contracting entity's estimate of the 36 project cost, the low bidder shall provide proof to the satisfaction of 37 the contracting entity that the prevailing wage shall be paid, or such 38 bid shall be rejected. 39 § 5. Section 231 of the labor law is amended by adding a new subdivi- 40 sion 8 to read as follows: 41 8. In any instance where the variation between the low bid on any 42 public work contract or subcontract with the state, any municipal corpo- 43 ration or public body and the next lowest bid is ten percent or more, or 44 is ten percent lower than the contracting entity's estimate of the 45 project cost, the low bidder shall provide proof to the satisfaction of 46 the contracting entity that the prevailing wage shall be paid, or such 47 bid shall be rejected. 48 § 6. Section 220 of the labor law is amended by adding a new subdivi- 49 sion 6-a to read as follows: 50 6-a. The fiscal officer shall require each engineer-in-charge or other 51 agent who has direct supervision of the execution of the contract 52 representing the contracting agency other than the contractor or his or 53 her employees on all contracts requiring prevailing wage rates to record 54 a daily headcount of all workers on a project site, separately enumer- 55 ated regarding each classification of worker including hours worked at 56 regular, overtime or holiday pay as classified in the prevailing wage

S. 3337 4 1 rate schedule. Such records shall be submitted to the fiscal officer and 2 shall be maintained by the fiscal officer for three years after the 3 final acceptance of the project. Knowingly providing the fiscal officer 4 with false records shall be a misdemeanor. 5 § 7. Subdivision 1 of section 103 of the general municipal law, as 6 amended by section 1 of chapter 2 of the laws of 2012, is amended to 7 read as follows: 8 1. Except as otherwise expressly provided by an act of the legislature 9 or by a local law adopted prior to September first, nineteen hundred 10 fifty-three, all contracts for public work involving an expenditure of 11 more than thirty-five thousand dollars which are subject to the 12 provisions of article eight of the labor law, and all purchase contracts 13 involving an expenditure of more than twenty thousand dollars, shall be 14 awarded by the appropriate officer, board or agency of a political 15 subdivision or of any district therein including but not limited to a 16 soil conservation district to the lowest responsible bidder furnishing 17 the required security after advertisement for sealed bids in the manner 18 provided by this section, provided, however, that purchase contracts 19 (including contracts for service work, but excluding any purchase 20 contracts necessary for the completion of a public works contract pursu- 21 ant to article eight of the labor law) may be awarded on the basis of 22 best value, as defined in section one hundred sixty-three of the state 23 finance law, to a responsive and responsible bidder or offerer in the 24 manner provided by this section except that in a political subdivision 25 other than a city with a population of one million inhabitants or more 26 or any district, board or agency with jurisdiction exclusively therein 27 the use of best value for awarding a purchase contract or purchase 28 contracts must be authorized by local law or, in the case of a district 29 corporation, school district or board of cooperative educational 30 services, by rule, regulation or resolution adopted at a public meeting. 31 Such officer, board, or agency may require responsible bidders and their 32 subcontractors to participate in apprenticeship training programs 33 approved by the department of labor. In any case where a responsible 34 bidder's or responsible offerer's gross price is reducible by an allow- 35 ance for the value of used machinery, equipment, apparatus or tools to 36 be traded in by a political subdivision, the gross price shall be 37 reduced by the amount of such allowance, for the purpose of determining 38 the best value. In cases where two or more responsible bidders furnish- 39 ing the required security submit identical bids as to price, such offi- 40 cer, board or agency may award the contract to any of such bidders. Such 41 officer, board or agency may, in his or her or its discretion, reject 42 all bids or offers and readvertise for new bids or offers in the manner 43 provided by this section. In determining whether a purchase is an 44 expenditure within the discretionary threshold amounts established by 45 this subdivision, the officer, board or agency of a political subdivi- 46 sion or of any district therein shall consider the reasonably expected 47 aggregate amount of all purchases of the same commodities, services or 48 technology to be made within the twelve-month period commencing on the 49 date of purchase. Purchases of commodities, services or technology 50 shall not be artificially divided for the purpose of satisfying the 51 discretionary buying thresholds established by this subdivision. A 52 change to or a renewal of a discretionary purchase shall not be permit- 53 ted if the change or renewal would bring the reasonably expected aggre- 54 gate amount of all purchases of the same commodities, services or tech- 55 nology from the same provider within the twelve-month period commencing 56 on the date of the first purchase to an amount greater than the discre-

S. 3337 5 1 tionary buying threshold amount. For purposes of this section, "sealed 2 bids" and "sealed offers", as that term applies to purchase contracts, 3 (including contracts for service work, but excluding any purchase 4 contracts necessary for the completion of a public works contract pursu- 5 ant to article eight of the labor law) shall include bids and offers 6 submitted in an electronic format including submission of the statement 7 of non-collusion required by section one hundred three-d of this arti- 8 cle, provided that the governing board of the political subdivision or 9 district, by resolution, has authorized the receipt of bids and offers 10 in such format. Submission in electronic format may, for technology 11 contracts only, be required as the sole method for the submission of 12 bids and offers. Bids and offers submitted in an electronic format shall 13 be transmitted by bidders and offerers to the receiving device desig- 14 nated by the political subdivision or district. Any method used to 15 receive electronic bids and offers shall comply with article three of 16 the state technology law, and any rules and regulations promulgated and 17 guidelines developed thereunder and, at a minimum, must (a) document the 18 time and date of receipt of each bid and offer received electronically; 19 (b) authenticate the identity of the sender; (c) ensure the security of 20 the information transmitted; and (d) ensure the confidentiality of the 21 bid or offer until the time and date established for the opening of bids 22 or offers. The timely submission of an electronic bid or offer in 23 compliance with instructions provided for such submission in the adver- 24 tisement for bids or offers and/or the specifications shall be the 25 responsibility solely of each bidder or offerer or prospective bidder or 26 offerer. No political subdivision or district therein shall incur any 27 liability from delays of or interruptions in the receiving device desig- 28 nated for the submission and receipt of electronic bids and offers. 29 § 8. Subdivision 1 of section 103 of the general municipal law, as 30 amended by section 2 of chapter 2 of the laws of 2012, is amended to 31 read as follows: 32 1. Except as otherwise expressly provided by an act of the legislature 33 or by a local law adopted prior to September first, nineteen hundred 34 fifty-three, all contracts for public work involving an expenditure of 35 more than thirty-five thousand dollars which are subject to the 36 provisions of article eight of the labor law, and all purchase contracts 37 involving an expenditure of more than twenty thousand dollars, shall be 38 awarded by the appropriate officer, board or agency of a political 39 subdivision or of any district therein including but not limited to a 40 soil conservation district to the lowest responsible bidder furnishing 41 the required security after advertisement for sealed bids in the manner 42 provided by this section, provided, however, that purchase contracts 43 (including contracts for service work, but excluding any purchase 44 contracts necessary for the completion of a public works contract pursu- 45 ant to article eight of the labor law) may be awarded on the basis of 46 best value, as defined in section one hundred sixty-three of the state 47 finance law, to a responsive and responsible bidder or offerer in the 48 manner provided by this section except that in a political subdivision 49 other than a city with a population of one million inhabitants or more 50 or any district, board or agency with jurisdiction exclusively therein 51 the use of best value of awarding a purchase contract or purchase 52 contracts must be authorized by local law or, in the case of a district 53 corporation, school district or board of cooperative educational 54 services, by rule, regulation or resolution adopted at a public meeting. 55 Such officer, board, or agency may require responsible bidders and their 56 subcontractors to participate in apprenticeship training programs

S. 3337 6 1 approved by the department of labor. In determining whether a purchase 2 is an expenditure within the discretionary threshold amounts established 3 by this subdivision, the officer, board or agency of a political subdi- 4 vision or of any district therein shall consider the reasonably expected 5 aggregate amount of all purchases of the same commodities, services or 6 technology to be made within the twelve-month period commencing on the 7 date of purchase. Purchases of commodities, services or technology shall 8 not be artificially divided for the purpose of satisfying the discre- 9 tionary buying thresholds established by this subdivision. A change to 10 or a renewal of a discretionary purchase shall not be permitted if the 11 change or renewal would bring the reasonably expected aggregate amount 12 of all purchases of the same commodities, services or technology from 13 the same provider within the twelve-month period commencing on the date 14 of the first purchase to an amount greater than the discretionary buying 15 threshold amount. In any case where a responsible bidder's or responsi- 16 ble offerer's gross price is reducible by an allowance for the value of 17 used machinery, equipment, apparatus or tools to be traded in by a poli- 18 tical subdivision, the gross price shall be reduced by the amount of 19 such allowance, for the purpose of determining the low bid or best 20 value. In cases where two or more responsible bidders furnishing the 21 required security submit identical bids as to price, such officer, board 22 or agency may award the contract to any of such bidders. Such officer, 23 board or agency may, in his, her or its discretion, reject all bids or 24 offers and readvertise for new bids or offers in the manner provided by 25 this section. 26 § 9. Section 220 of the labor law is amended by adding a new subdivi- 27 sion 11 to read as follows: 28 11. All public entities subject to this article shall make available 29 for public inspection and copying of the records or portions thereof 30 pertaining to the names of, employee classifications of, rate of wages 31 and supplements paid to, and number of hours worked by the employees of 32 contractors performing work pursuant to this article and article nine of 33 this chapter. The social security numbers of such employees may be 34 blocked out by the agency. An entity shall not be permitted to deny 35 access to records or portions thereof pertaining to the payment of wages 36 and supplements to, and number of hours worked by, the employees of 37 contractors subject to this article and article nine of this chapter. 38 § 10. Section 233 of the labor law is amended by adding a new subdivi- 39 sion 5 to read as follows: 40 5. All public entities subject to this article shall make available 41 for public inspection and copying of the records or portions thereof 42 pertaining to the names of, employee classifications of, rate of wages 43 and supplements paid to, and number of hours worked by the employees of 44 contractors performing work pursuant to this article and article eight 45 of this chapter. The social security numbers of such employees may be 46 blocked out by the agency. An entity shall not be permitted to deny 47 access to records or portions thereof pertaining to the payment of wages 48 and supplements to, and number of hours worked by, the employees of 49 contractors subject to this article and article eight of this chapter. 50 § 11. Subdivision 2 of section 87 of the public officers law is 51 amended by adding a new paragraph (r) to read as follows: 52 (r) Provided that, nothing in this subdivision shall permit an agency 53 to deny access to records or portions thereof pertaining to the payment 54 of wages and supplements to, and number of hours worked by the employees 55 of contractors subject to articles eight and nine of the labor law. All 56 public entities subject to this article shall make available for public

S. 3337 7 1 inspection and copying of such records, the names of, employee classi- 2 fications of, rate of wages and supplements paid to, and number of hours 3 worked by the employees of contractors performing work pursuant to arti- 4 cles eight and nine of the labor law. The social security numbers of 5 such employees may be blocked out by the agency. 6 § 12. Paragraph (a) of subdivision 2 of section 89 of the public offi- 7 cers law, as amended by section 11 of part U of chapter 61 of the laws 8 of 2011, is amended to read as follows: 9 (a) The committee on public access to records may promulgate guide- 10 lines regarding deletion of identifying details or withholding of 11 records otherwise available under this article to prevent unwarranted 12 invasions of personal privacy. In the absence of such guidelines, an 13 agency may delete identifying details when it makes records available, 14 provided however, nothing in this paragraph shall permit the denial of 15 access to records or portions thereof pertaining to the payment of wages 16 and supplements to, and number of hours worked by the employees of 17 contractors subject to articles eight and nine of the labor law. All 18 public entities subject to this article shall make available for public 19 inspection and copying of such records, the names of, employee classi- 20 fications of, rate of wages and supplements paid to, and number of hours 21 worked by the employees of contractors performing work pursuant to arti- 22 cles eight and nine of the labor law. The social security numbers of 23 such employees may be blocked out by the agency. 24 § 13. Paragraph (b) of subdivision 2 of section 89 of the public offi- 25 cers law is amended by adding a new undesignated paragraph to read as 26 follows: 27 Provided that, nothing in this paragraph shall permit an agency to 28 deny access to records or portions thereof pertaining to the payment of 29 wages and supplements to, and number of hours worked by employees of 30 contractors subject to articles eight and nine of the labor law. It 31 shall not be an unwarranted invasion of personal privacy for all public 32 entities subject to this article, to make available for public 33 inspection and copying, the records of all names of, employee classi- 34 fications of, rate of wages and supplements paid to, and number of hours 35 worked by the employees of contractors performing work pursuant to arti- 36 cles eight and nine of the labor law. The social security numbers of 37 such employees may be blocked out by the agency. 38 § 14. Subdivision 2-a of section 89 of the public officers law, as 39 added by chapter 652 of the laws of 1983, is amended to read as follows: 40 2-a. Nothing in this article shall permit disclosure which constitutes 41 an unwarranted invasion of personal privacy as defined in subdivision 42 two of this section if such disclosure is prohibited under section nine- 43 ty-six of this chapter, provided however, that nothing in this article 44 shall permit an agency to deny access to records or portions thereof 45 pertaining to the payment of rate of wages and supplements to, and 46 number of hours worked by, employees of contractors subject to articles 47 eight and nine of the labor law. It shall not be an unwarranted invasion 48 of personal privacy as defined in subdivision two of this section, nor a 49 prohibited disclosure under section ninety-six of this chapter for all 50 public entities subject to this article, to make available for public 51 inspection and copying such records of all names of, employee classi- 52 fications of, rate of wages and supplements paid to, and number of hours 53 worked by the employees of contractors performing work pursuant to arti- 54 cles eight and nine of the labor law. The social security numbers of 55 such employees may be blocked out by the agency.

S. 3337 8 1 § 15. Subparagraph (iii) of paragraph a of subdivision 3-a of section 2 220 of the labor law, as amended by chapter 86 of the laws of 2020, is 3 amended to read as follows: 4 (iii) The contractor and every sub-contractor shall keep original 5 payrolls or transcripts thereof, subscribed and sworn to or affirmed by 6 him or her as true under the penalties of perjury, setting forth the 7 names and addresses and showing for each worker, laborer, or mechanic 8 the hours and days worked, the occupations worked, the hourly wage rates 9 paid and the supplements paid or provided. Such payrolls or transcripts 10 thereof shall be accompanied by a copy of each notice required under 11 subdivision one or two of section one hundred ninety-five of this chap- 12 ter for every laborer, worker or mechanic, which shall be subscribed and 13 sworn to or affirmed as true under penalties of perjury and shall be 14 deemed to be part of the original payrolls or transcripts thereof for 15 purposes of this subdivision. Where the contractor or sub-contractor 16 maintains no regular place of business in New York state and where the 17 amount of the contract is in excess of twenty-five thousand dollars such 18 payrolls shall be kept on the site of the work. All other contractors or 19 sub-contractors shall produce within five days on the site of the work 20 and upon formal order of the commissioner or his or her designated 21 representative such original payrolls or transcripts thereof, subscribed 22 and sworn to or affirmed by him or her as true under the penalties of 23 perjury, as may be deemed necessary to adequately enforce the provisions 24 of this article. Every contractor, and sub-contractor, shall submit to 25 the department of jurisdiction within thirty days after issuance of its 26 first payroll, and every thirty days thereafter, a transcript of the 27 original payroll record, as provided by this article, and at the 28 completion of the project a summary transcript specifying the hours and 29 days worked by each workman, laborer or mechanic, the trade or occupa- 30 tion at which he or she worked, the hourly wage rate paid, the supple- 31 ments paid or provided to such employee and the names, tax identifica- 32 tion number and job title of each individual classified by the 33 contractor or subcontractor as independent contractors who were hired 34 and employed by such contractor to perform work subject to the 35 provisions of this article. Such summary transcript shall be subscribed 36 and sworn to or affirmed as true under the penalties of perjury. Any 37 person who willfully fails to file such payroll records with the depart- 38 ment of jurisdiction, commissioner, or the fiscal officer shall be guil- 39 ty of a class E felony. In addition, any person who willfully fails to 40 file such payroll records within the time specified in this subparagraph 41 shall be subject to a civil penalty of up to one thousand dollars per 42 day. Each independent contractor shall have obtained a tax identifica- 43 tion number prior to employment on a project and shall submit such 44 number to the contractor as required by the commissioner. 45 § 16. Subdivision 3-a of section 220 of the labor law is amended by 46 adding a new paragraph f to read as follows: 47 f. Where the capital construction cost of a public work subject to the 48 provisions of this section exceeds one million dollars, the department 49 of jurisdiction shall certify that the project will be audited from time 50 to time by the department of labor to ensure compliance with the 51 provisions of this article. The department of jurisdiction shall inform 52 the department of labor of the project's cost and shall establish a 53 timetable for audit by the department of labor. 54 § 17. Severability clause. If any clause, sentence, paragraph, subdi- 55 vision, section or part contained in any part of this act shall be 56 adjudged by any court of competent jurisdiction to be invalid, such

S. 3337 9 1 judgment shall not affect, impair, or invalidate the remainder thereof, 2 but shall be confined in its operation to the clause, sentence, para- 3 graph, subdivision, section or part contained in any part thereof 4 directly involved in the controversy in which such judgment shall have 5 been rendered. It is hereby declared to be the intent of the legislature 6 that this act would have been enacted even if such invalid provisions 7 had not been included herein. 8 § 18. This act shall take effect immediately; provided, however, that: 9 1. Sections four, five, six and fifteen of this act shall take effect 10 on the sixtieth day after they shall have become a law; 11 2. Sections seven and eight of this act shall apply to contracts let 12 on or after such effective date of each section respectively; 13 3. The amendments to subdivision 1 of section 103 of the general 14 municipal law made by section seven of this act shall be subject to the 15 expiration and reversion of such subdivision pursuant to subdivision (a) 16 of section 41 of part X of chapter 62 of the laws of 2003, as amended, 17 when upon such date the provisions of section eight of this act shall 18 take effect; and 19 4. Sections nine through fourteen of this act shall take effect on the 20 thirtieth day after they shall have become a law.

Enacts the "Omnibus Prevailing Wage Enforcement Act"

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