NY Lab L § 224-A (2021)
2021 New York Laws LAB - Labor Article 8 - Public Work 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; or   d.  Credits that are applied by the public entity against repayment of obligations to the public entity.   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; and   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.   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.   * NB Effective January 1, 2022