NY Lab L § 220 (2021)
2021 New York Laws LAB - Labor Article 8 - Public Work 220 - Hours, Wages and Supplements.

§ 220. Hours, wages and supplements. 1. Eight hours shall constitute a legal day's work for all classes of employees in this state except those engaged in farm and domestic service unless otherwise provided by law.   2. Each contract to which the state or a public benefit corporation or a  municipal  corporation or a commission appointed pursuant to law is a party, and any contract for public work entered into by  a  third  party acting  in  place  of,  on  behalf of and for the benefit of such public entity pursuant to any lease, permit or  other  agreement  between  such third  party and the public entity, and which may involve the employment of laborers, workers or mechanics shall contain a  stipulation  that  no laborer,   worker   or   mechanic  in  the  employ  of  the  contractor, subcontractor or other person doing or contracting to do the whole or  a part  of  the  work  contemplated  by the contract shall be permitted or required to work more than eight hours in any one calendar day  or  more than  five  days  in  any  one  week  except  in  cases of extraordinary emergency including fire, flood or danger to life or property.  No  such person  shall  be  so  employed more than eight hours in any day or more than five days in any one week except in such  emergency.  Extraordinary emergency  within the meaning of this section shall be deemed to include situations in which sufficient laborers, workers and mechanics cannot be employed to carry on public work  expeditiously  as  a  result  of  such restrictions  upon  the  number  of  hours  and  days  of  labor and the immediate commencement or prosecution or completion without undue  delay of  the public work is necessary in the judgment of the commissioner for the preservation of the contract site and for the protection of the life and limb of the persons using the same.  Upon  the  application  of  any person  interested,  the  commissioner  shall make a determination as to whether or not on any public project or on all public  projects  in  any area of this state, sufficient laborers, workers and mechanics of any or all  classifications  can  be employed to carry on work expeditiously if their labor is restricted to eight hours per day and five days per week, and in the event that the commissioner determines  that  there  are  not sufficient workers, laborers and mechanics of any or all classifications which may be employed to carry on such work expeditiously if their labor is  restricted  to  eight  hours per day and five days per week, and the immediate commencement or prosecution or completion without undue  delay of  the public work is necessary in the judgment of the commissioner for the preservation of the contract site and for the protection of the life and limb of the persons using the same, the commissioner shall  grant  a dispensation  permitting  all  laborers,  workers  and mechanics, or any classification of such laborers, workers and  mechanics,  to  work  such additional  hours  or  days  per  week on such public project or in such areas the commissioner shall determine. Whenever such a dispensation  is granted,  all  work  in  excess of eight hours per day and five days per week shall be considered overtime work, and the  laborers,  workers  and mechanics performing such work shall be paid a premium wage commensurate with  the  premium  wages  prevailing  in  the area in which the work is performed. No such dispensation shall be effective with respect  to  any public  work unless and until the department of jurisdiction, as defined in this section, certifies to the commissioner that such public work  is of  an  important  nature  and that a delay in carrying it to completion would result in serious disadvantage to the public.  Time  lost  in  any week   because   of  inclement  weather  by  employees  engaged  in  the construction, reconstruction and maintenance of highways outside of  the limits of cities and villages may be made up during that week and/or the succeeding three weeks.   2-a.  Any  person  contracting  with  the  state  or  a public benefit corporation, or a  municipal  corporation,  or  a  commission  appointed  pursuant  to  law  that  shall  require more than eight hours work for a day's  labor,  unless  otherwise  permitted  by  law,  is  guilty  of  a misdemeanor, and upon conviction thereof shall be punished in accordance with the penal law for each offense.   3.  (a)  The  wages to be paid for a legal day's work, as hereinbefore defined, to laborers, workmen or mechanics upon such public works, shall be not less than the prevailing rate of wages  as  hereinafter  defined. Serving  laborers,  helpers,  assistants  and  apprentices  shall not be classified as  common  labor  and  shall  be  paid  not  less  than  the prevailing  rate  of  wages as hereinafter defined. No employee shall be deemed to be an apprentice unless he is individually  registered  in  an apprenticeship program which is duly registered with the commissioner of labor  in conformity with the provisions of article twenty-three of this chapter. The wages to be paid for a legal day's  work,  as  hereinbefore defined,  to laborers, workmen or mechanics upon any material to be used upon or in connection therewith, shall be not less than  the  prevailing rate  for  a  day's work in the same trade or occupation in the locality within the state where such public work on, about or in connection  with which  such  labor  is performed in its final or completed form is to be situated, erected or used. Such contracts shall contain a provision that each  laborer,  workman  or  mechanic,  employed  by  such   contractor, subcontractor  or  other person about or upon such public work, shall be paid the wages herein provided.  (b) The  supplements,  as  hereinafter  defined,  to  be  provided  to laborers,  workmen  or  mechanics  upon  such  public works, shall be in accordance with the prevailing practices in the locality, as hereinafter defined.  Serving laborers, helpers, assistants  and  apprentices  shall not  be  classified as common labor and shall be provided supplements in accordance with the prevailing  practices  as  hereinafter  defined.  No employee  shall  be deemed to be an apprentice unless he is individually registered in an apprenticeship program which is  duly  registered  with the industrial commissioner in conformity with the provisions of article twenty-three  of  this chapter. The supplements, as hereinafter defined, to be provided to laborers, workmen or mechanics upon any material to be used upon or in connection therewith, shall be in  accordance  with  the prevailing  practices  in  the  same trade or occupation in the locality within the state where such public work on, about or in connection  with which  such  labor  is performed in its final or completed form is to be situated, erected or used. Such contracts shall contain a provision that each  laborer,  workman  or  mechanic,  employed  by  such   contractor, subcontractor  or  other person about or upon such public work, shall be provided the supplements as required in this article.  (c) It shall be the duty of the fiscal officer,  as  defined  in  this section,  to  ascertain and determine the schedules of supplements to be provided and wages to be paid workers, laborers and  mechanics  on  such public  work,  prior to the time of the advertisement for bids, and such schedules shall be annexed to and form a part of the specifications  for the  work.  Such  fiscal  officer  shall file with the department having jurisdiction such schedules prior to the time of the commencement of the advertisement for bids on all public works proposed to  be  constructed. The  term  "contract"  as  used  in  this  article  also  shall  include reconstruction and repair of any such public work, and any  public  work performed under a lease, permit or other agreement pursuant to which the department  of jurisdiction grants the responsibility of contracting for such public work to any third party proposing to perform  such  work  to which  the  provisions of this article would apply had the department of jurisdiction contracted directly for its performance, or where there  is no  lease,  permit  or other agreement and ownership of a public work is  intended to be assumed by such public entity at any time  subsequent  to completion of the public work.  (d)  (i) Any person that participates in a public works project in the capacity of a contractor or subcontractor and who wilfully fails to  pay or provide the prevailing rate of wage or supplements and:  (1)  such  failure  results  in  underpayments, which in the aggregate amount to all workers employed by such person, results in an amount less than twenty-five  thousand  dollars,  shall  be  guilty  of  a  class  A misdemeanor;  (2)  such  failure  results  in  underpayments, which in the aggregate amount to all workers employed by  such  person,  result  in  an  amount greater  than  twenty-five thousand dollars, that person shall be guilty of a class E felony;  (3) such failure results in  underpayments,  which  in  the  aggregate amount  to  all  workers  employed  by  such person, result in an amount greater than one hundred thousand dollars, that person shall  be  guilty of a class D felony; or  (4)  such  failure  results  in  underpayments, which in the aggregate amount to all workers employed by  such  person,  result  in  an  amount greater  than five hundred thousand dollars, that person shall be guilty of a class C felony.  (ii) Disposition for violations of this section shall be in accordance with the penal law. Fines upon conviction  for  any  violation  of  this section shall be in accordance with the penal law.  (iii)  In  addition  to the penalties set forth above, any such person convicted of a second offense under subparagraph (i) of  this  paragraph within  five  years  shall disgorge profits and shall not be entitled to receive any monies due and owing on the  contract  or  subcontract;  nor shall  any  officer, agent or employee of the department of jurisdiction or  its  financial  officer  pay  to  such  person  any   such   monies. Notwithstanding  the  foregoing,  the  department  of  jurisdiction  may release monies due and owing on the contract or subcontract  which  have not  been  withheld  pursuant  to  section  two hundred twenty-b of this article  for  the  sole  purpose  of  satisfying  the  contractor's   or subcontractor's  obligations  under the contract or subcontract to third parties who were not themselves involved in the violations  giving  rise to  the  subsequent offense. For the purposes of this subdivision, third parties  shall  include,   but   not   be   limited   to,   contractors, subcontractors,  materialmen,  and  funds, plans, and programs providing pension,  health,  and  welfare  benefits  to  workmen,  laborers,   and mechanics  employed  pursuant  to  such  contract  or  subcontract.  The department of jurisdiction may release such monies upon the  application of  the contractor provided that no monies shall be released without the written approval of the fiscal  officer  or  by  order  of  a  court  of competent jurisdiction.  (iv)  In addition to the penalties set forth above, every contract for a public work project shall contain a term stating that  the  filing  of payrolls in a manner consistent with subdivision three-a of this section is  a  condition  precedent  to payment of any sums due and owing to any person for work done upon the project.  (e) The commissioner shall ensure that all supplements due under  this article  shall  be paid to or on behalf of an employee. The commissioner shall require proof that the pension plan for which any  supplement  has been paid is qualified as a bona fide plan by the United States internal revenue  service.  Acceptable  proof  shall  be shown by submission of a determination letter  issued  by  the  United  States  internal  revenue service.    3-a.  a. (i) It shall be the duty of the department of jurisdiction as defined in this section to ascertain from the plans  and  specifications the  classification of workers, mechanics and laborers to be employed on such project. Such department shall file with  the  fiscal  officer,  as defined  in  this  section, the classification of workers, mechanics and laborers to be employed upon such public works project, together with  a statement  of the work to be performed by each such classification. From such statement it shall be the duty of the  fiscal  officer  to  make  a proper  classification  of  such  workers, mechanics and laborers taking into account whether the work is heavy and highway, building, sewer  and water,  tunnel  work  or  residential and to make a determination of the schedules of wages and supplements to be paid or provided, as  the  case may be, therefor.  (ii) The contractor and every sub-contractor on public works contracts shall  post  in  a  prominent and accessible place on the site where the work is performed a legible statement of all wage rates and  supplements as specified in the contract to be paid or provided, as the case may be, for  the  various classes of mechanics, workers, or laborers employed on the work. Such posted statement shall be written in  plain  English  and titled, in lettering no smaller than two inches in height and two inches in  width,  with  the  phrase  "Prevailing  Rate  of Wages". Such posted statement shall be constructed  of  materials  capable  of  withstanding adverse  weather  conditions.  The  contractor  and every sub-contractor shall notify all laborers, workers  or  mechanics  in  their  employ  in writing  of  the  prevailing  rates  of  wages and supplements for their particular job classification. Such notification shall be given to every laborer, worker or mechanic upon hire, with their  first  pay  stub  and every  pay  stub  thereafter  At  the  beginning of performance of every public works contract, and with the first paycheck after July  first  of each  year,  the  contractor  and  every sub-contractor shall notify all laborers, workers, and mechanics in their employ in writing, in  English and  in the language identified by each laborer, worker, and mechanic as his or her  primary  language,  in  accordance  with  such  form  as  is prescribed  by  the  fiscal officer, of the telephone number and address for the fiscal officer. The  notice  shall  also  inform  each  laborer, worker, or mechanic of his or her right to contact the fiscal officer or some  other  representative if, at any time while working for the public works contractor or sub-contractor, he  or  she  does  not  receive  the proper prevailing rate of wages or supplements for his or her particular job  classification  that  he  or  she  is entitled to receive under the contract. If  after  investigation  the  fiscal  officer  finds  that  a contractor  or  sub-contractor  has  (1)  failed  to  post the statement required under this subparagraph, (2) failed to provide any notification to laborers, workers and mechanics as required under this  subparagraph, (3)  willfully posted the incorrect prevailing wages and supplements, or (4) willfully set forth the incorrect prevailing wage or supplement with every pay stub, the fiscal  officer  shall,  by  an  order  which  shall describe  particularly  the  nature of the alleged violation, assess the contractor or sub-contractor a civil penalty  of  not  more  than  fifty dollars upon the first finding of a violation, two hundred fifty dollars upon  the  second  finding  of a violation, and five hundred dollars for each subsequent violation. In assessing the amount of the  penalty,  the fiscal  officer  shall  give  due  consideration  to  the  size  of  the employer's business, the good faith of the employer, and the gravity  of the violation.   The  fiscal  officer  shall  prepare  templates  that  comply with the notification requirements of this subparagraph. Each such template shall be dual-language, including English and  one  additional  language.  The  fiscal  officer  shall  determine,  in  his  or  her  discretion,  which languages to provide in addition to English, based on the  size  of  the New York state population that speaks each language and any other factor that the fiscal officer shall deem relevant. All such templates shall be posted   on   the  fiscal  officer's  website  and  made  available  for downloading by contractors and subcontractors. When any laborer, worker, or mechanic identifies his or her primary language and a template is not made available by the fiscal officer in that language, the contractor or subcontractor shall comply with  this  subparagraph  by  providing  such laborer,   worker,   or   mechanic   an   English-language   notice   or acknowledgment. A contractor or subcontractor shall not be penalized for errors or omissions in the non-English portions of any  notice  provided by the fiscal officer. The fiscal officer shall have discretion to waive or   alter  the  notification  requirements  of  this  subparagraph  for temporary help firms as defined in section nine hundred sixteen of  this chapter.  (iii)  The  contractor  and  every  sub-contractor shall keep original payrolls or transcripts thereof, subscribed and sworn to or affirmed  by him  or  her  as  true under the penalties of perjury, setting forth the names and addresses and showing for each worker,  laborer,  or  mechanic the hours and days worked, the occupations worked, the hourly wage rates paid  and the supplements paid or provided. Such payrolls or transcripts thereof shall be accompanied by a copy of  each  notice  required  under subdivision  one  or  two  of  section  one  hundred ninety-five of this chapter for every laborer, worker or mechanic, which shall be subscribed and sworn to or affirmed as true under penalties of perjury and shall be deemed to be part of the original payrolls or  transcripts  thereof  for purposes  of  this  subdivision.  Where the contractor or sub-contractor maintains no regular place of business in New York state and  where  the amount of the contract is in excess of twenty-five thousand dollars such payrolls shall be kept on the site of the work. All other contractors or sub-contractors  shall  produce within five days on the site of the work and upon formal order of the  commissioner  or  his  or  her  designated representative such original payrolls or transcripts thereof, subscribed and  sworn  to  or affirmed by him or her as true under the penalties of perjury, as may be deemed necessary to adequately enforce the provisions of this article. Every contractor, and sub-contractor, shall  submit  to the  department of jurisdiction within thirty days after issuance of its first payroll, and every thirty days thereafter,  a  transcript  of  the original  payroll  record,  as  provided by this article, subscribed and sworn to or affirmed as true under the penalties of perjury. Any  person who  willfully fails to file such payroll records with the department of jurisdiction, commissioner, or the fiscal officer shall be guilty  of  a class E felony. In addition, any person who willfully fails to file such payroll  records within the time specified in this subparagraph shall be subject to a civil penalty of up to one thousand dollars per day.  (iv) The department of jurisdiction shall be required to  collect  and maintain  such  payroll  records  at the times specified in subparagraph (iii) of this paragraph. The original payrolls or transcripts  shall  be preserved by the department of jurisdiction for five years from the date of  completion  of  the  work on the awarded contract. The department of jurisdiction as herein referred to shall be the department of the state, board or officer in the state, or municipal corporation or commission or board appointed pursuant to law, whose duty it is to prepare  or  direct the  preparation  of  the  plans  and  specifications  for a public work project. Each department of jurisdiction shall designate in  writing  an individual  employed  by  such  department  responsible for the receipt, collection and review for facial validity of payrolls. Said  designation  shall  be  filed  with  the  fiscal  officer and posted in a conspicuous location at the  project  site.  If  the  designated  individual  cannot perform  the receipt, collection and review of certified payrolls duties as  indicated  above,  for  any  reason,  including  but  not limited to reassignment, promotion or separation from employment, the department of jurisdiction must immediately designate another individual  employed  by such  department  to  fulfill such responsibilities. In the event that a department of jurisdiction fails to name an individual  responsible  for the  receipt,  collection and review for facial validity of payrolls, as set forth above,  then  the  individual  so  responsible  shall  be  the individual  who is the chief policy-making individual of such department of jurisdiction.   b. All departments of jurisdiction in respect of  public  work  as  to which  the industrial commissioner is fiscal officer, as defined in this section, shall furnish to  the  industrial  commissioner  the  following information immediately upon signing of a contract for such public work: (a) the name and address of the contractor engaged by said department of jurisdiction;   (b)  the  date  when  the  contract  was  let;  (c)  the approximate consideration stipulated for in said contract.   c. The fiscal officer may require any person or corporation performing such public work to file with the fiscal  officer  within  ten  days  of receipt  of said request, payroll records, sworn to as to their validity and accuracy, requested by the fiscal officer, for said public  work  or for  any  public or private work performed by said person or corporation during the same period of time as said public work. Such payroll records shall include a copy of each notice required under  subdivision  one  or two  of  section  one  hundred  ninety-five  of  this  chapter for every laborer, worker or mechanic, which shall be subscribed and sworn  to  or affirmed  as  true  under  penalties of perjury. In addition, the fiscal officer may require such person or corporation to furnish proof  of  any supplements provided or amount paid to or on behalf of laborers, workers or  mechanics  in  satisfaction of the obligation to provide supplements pursuant to this section. In the event said person or corporation  fails to  provide  the requested information within the allotted ten days, the fiscal officer shall, within  fifteen  days,  order  the  department  of jurisdiction  to  immediately  withhold  from  payment to said person or corporation up to twenty-five percent of the amount, not to  exceed  one hundred thousand dollars, to be paid to said person or corporation under the  terms  of  the contract pursuant to which said public work is being performed. Said amount  withheld  shall  be  immediately  released  upon receipt  by  the  department of jurisdiction of a notice from the fiscal officer indicating that the request for records had been satisfied.   d. Any person who wilfully fails to file the requested payroll records within ninety days of a demand by the fiscal officer shall be guilty  of a  class  A  misdemeanor,  provided, however, that a person who violates this subdivision after having previously  been  convicted  of  violating this subdivision within the past five years shall be guilty of a class E felony.   e.  Utility  companies  and  their contractors and subcontractors who, under local law or ordinance, are required, as a condition  of  issuance of  a  permit  to use or open a street, to agree that none but competent workers, skilled in the work required of them shall be employed  thereon and  that  prevailing  scale of union wages shall be the prevailing wage for the similar titles as established by the fiscal officer pursuant  to this  section,  paid  to  those  so  employed, shall be required to keep original payrolls or transcripts thereof, subscribed  and  sworn  to  or affirmed  by  him or her as true under the penalties of perjury, setting forth the names and addresses and showing for each workman, laborer,  or  mechanic  the  hours and days worked, the occupations worked, the hourly wage rates paid and the supplements paid or  provided  as,  and  in  the manner required by paragraphs a, b and c of this subdivision.   3-b.  1.  Public  work  advisory board. There is hereby created in the department an advisory board on public work composed of six  members  to be  appointed  by the governor by and with the advice and consent of the senate. Two members of the advisory board  shall  be  persons  known  to represent  the  interests of employers in the construction industry, two persons shall be known to represent the interest of  employees  therein, and  two members shall be persons appointed to represent the public. The governor may remove any member when he or she ceases  to  represent  the interests  in  whose behalf he or she was appointed. The commissioner of labor shall be an additional member of such  board  without  any  voting power and act as chairman thereof and shall designate an employee of the department  to  be  secretary.  The  board shall meet at the call of the commissioner of labor and when engaged upon the work of the  board  each member,  except  the  commissioner,  shall not receive a salary or other compensation, but shall be reimbursed for reasonable traveling and other expenses to be audited by the state comptroller.   2. Terms of office.  All  members  of  the  advisory  board  shall  be appointed for a term of six years to begin at the expiration of the term of  office  of the member whom he is to succeed. Any member appointed to fill a vacancy occurring otherwise than by expiration of term  shall  be appointed for the unexpired term of the member whom he is to succeed.   3-c.  The  advisory  board shall adopt rules and regulations to govern its  own  proceedings,  and  to  expedite  the  making  by  it  of   the examinations and determinations required by this chapter. The members of the advisory board shall have power:   1.  To  issue subpoenas for and compel the attendance of witnesses and the  production  of  books,  contracts,  papers,  documents  and   other evidence;   2.  To  hear  testimony  and  take or cause to be taken depositions of witnesses residing within or without this state in the manner prescribed by law for like depositions in  civil  actions  in  the  supreme  court. Subpoenas  and  commissions  to take testimony shall be issued under the seal of the department.   3-d. The fiscal officer of any political  subdivision  of  the  state, wherein a public work project is proposed to be constructed, may request the  industrial  commissioner  to  make  a  classification  by trades or occupations of laborers, workmen and mechanics required to  perform  the public  work  in  its completed form. The board shall, when requested by the industrial commissioner, examine into proposed public work  projects and  determine  the classification by trades or occupations of laborers, workmen and mechanics  required  to  perform  the  public  work  in  its completed form; and to determine which of same are skilled, semi-skilled or  unskilled. The board shall file with the industrial commissioner its findings, determinations and recommendations.   3-e. Apprentices will be permitted to work as such only when they  are registered,  individually, under a bona fide program registered with the New York State Department of Labor. The allowable ratio  of  apprentices to  journeymen in any craft classification shall not be greater than the ratio permitted to the contractor as to his work force on any job  under the  registered  program.  Any  employee  listed  on  a  payroll  at  an apprentice wage rate, who is not registered as above, shall be paid  the wage  rate  determined by the New York State Department of Labor for the classification  of  work  he  actually  performed.  The  contractor   or subcontractor  will  be  required  to  furnish  written  evidence of the registration  of  his  program  and  apprentices  as  well  as  of   the  appropriate ratios and wage rates, for the area of construction prior to using any apprentices on the contract work.   4. This section shall not apply to:   a. Stationary firemen in state hospitals;   b.  Other persons regularly employed in the state institutions, except mechanics;   c. Engineers, electricians and elevator men in the bureau of  building management  of  the office of general services during the annual session of the legislature.   5. Definitions. a. The "prevailing rate of wage," for the intents  and purposes  of  this  article,  shall  be  the  rate  of  wage paid in the locality, as hereinafter defined, by  virtue  of  collective  bargaining agreements  between  bona  fide labor organizations and employers of the private sector, performing public or private  work  provided  that  said employers  employ  at  least  thirty  per centum of workers, laborers or mechanics in the same trade or occupation in the locality where the work is being performed. The  prevailing  rate  of  wage  shall  be  annually determined  in  accordance  herewith by the fiscal officer no later than thirty days prior to July first of each year, and the prevailing rate of wage for the period commencing July first  of  such  year  through  June thirtieth,  inclusive,  of  the following year shall be the rate of wage set forth in  such  collective  bargaining  agreements  for  the  period commencing  July first through June thirtieth, including those increases for such period which are directly ascertainable  from  such  collective bargaining agreements by the fiscal officer in his annual determination. In  the  event  that  it  is  determined after a contest, as provided in subdivision six of this section, that less than thirty  percent  of  the workers,  laborers  or  mechanics in a particular trade or occupation in the locality where the work is being performed  receive  a  collectively bargained  rate  of  wage,  then  the average wage paid to such workers, laborers or mechanics in the same trade or occupation  in  the  locality for  the  twelve-month  period  preceding  the  fiscal  officer's annual determination shall be the prevailing rate of wage. Laborers, workers or mechanics for whom a prevailing rate of wage is to be  determined  shall not be considered in determining such prevailing wage.   b.  "Supplements," for the intents and purposes of this article, means all remuneration for employment paid in any medium other than  cash,  or reimbursement for expenses, or any payments which are not "wages" within the  meaning of the law, including, but not limited to, health, welfare, non-occupational disability, retirement, vacation benefits, holiday  pay life insurance, and apprenticeship training.   c.  "Prevailing  practices  in  the  locality,"  for  the  intents and purposes  of  this  article,  shall  be  the   practice   of   providing supplements,   as   hereinbefore  defined,  as  provided  by  virtue  of collective bargaining agreements between bona fide  labor  organizations and  employers  of the private sector, performing public or private work provided that said employers  employ  at  least  thirty  per  centum  of workers,  laborers  or  mechanics in the same trade or occupation in the locality, as determined by the fiscal officer  in  accordance  with  the provisions herein.   With respect to each supplement determined to be one of the prevailing practices  in  the  locality,  the  amount  of  such supplement shall be determined in the same manner and at the same times  as  the  prevailing rate of wage is determined pursuant to this section.   d.  "Locality" means such areas of the state described and defined for a trade or occupation in the current  collective  bargaining  agreements between  bona  fide  labor  organizations  and  employers of the private sector, performing public and private work.    e. The "fiscal officer," as used herein, shall be  deemed  to  be,  on public  work  performed by or on behalf of the state or a public benefit corporation or a county or a village, or other  civil  division  of  the state,  except  a  city, with a population in excess of one million, the commissioner of labor; and on public work performed by or on behalf of a city  with  a  population  in  excess of one million, the comptroller or other analogous officer of such city.   f. The term "verified complaint," as applied  to  a  claim  against  a municipality,  shall  include  a  verified  demand or verified notice of claim heretofore, and since the first day of January,  nineteen  hundred thirty-five,  filed  with  the  fiscal  officer  of such municipality in accordance with the provisions of the local charter  or  local  laws  or ordinances relating generally to the filing of claims or demands against such  municipality; and any person who has filed such a demand or notice shall be deemed to have filed a verified complaint as of the  date,  not earlier  than  the  first  day of January, nineteen hundred thirty-five, mentioned in such notice or demand as the commencement of the period  in relation to which such claim or demand is made.   g.  "Substantially  owned-affiliated  entity"  shall  mean  the parent company of the  contractor  or  subcontractor,  any  subsidiary  of  the contractor  or  subcontractor,  or any entity in which the parent of the contractor 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 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 or  subcontractor  or  over which  the  contractor  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.   h. "Entity" shall mean  a  partnership,  association,  joint  venture, company,  sole  proprietorship,  corporation  or any other form of doing business.   i. "Parent company" shall mean an entity that  directly  controls  the contractor or subcontractor.   j.  "Subsidiary"  shall mean an entity that is controlled directly, or indirectly through one  or  more  intermediaries,  by  a  contractor  or subcontractor or by the contractor's parent company.   k.  "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.   l.  "Person"  shall  mean  a  human  being  and  shall also include an "entity" as defined in this article, including, but not  limited  to,  a contractor or subcontractor.   6.  The  fiscal  officer  may,  and  on  the  written  request  of any interested person shall, require any person  or  corporation  performing such  public  work  to  file  with  such fiscal officer schedules of the supplements to be provided and  wages  to  be  paid  to  such  laborers, workmen  or  mechanics. Any such person or corporation shall, within ten days after the receipt of written notice of such requirement, file  with the  fiscal officer such schedules of wages and supplements. An employer may contest a determination by the fiscal officer under paragraphs a and c of subdivision five of this section.  The  employer  must  allege  and prove  by  competent  evidence,  that  the actual percentage of workers,  laborers or mechanics is below the required thirty per centum and during the pendency of any such contest and until final determination  thereof, the  work  in  question  shall proceed under the rate established by the fiscal officer.   7.  Compliance  investigations.  The  fiscal officer as herein defined shall on a verified complaint in writing of any person interested or  of any  employee  organization  pursuant  to  subdivision  eight-d  of this section, and may on his own initiative cause a compliance  investigation to  be  made  to determine whether the contractor or a subcontractor has paid  the  prevailing  rate  of  wages  and  prevailing  practices   for supplements  in  the same trade or occupation in the locality within the state where such public work is being performed, or the hours  of  labor performed by the workmen, laborers and mechanics employed on such public work,  or  both.    The  fiscal  officer  or  his  agents, examiners and inspectors may examine or cause to be examined  the  books  and  records pertaining  to  the  rate  of wages paid and supplements provided to the laborers, workmen and mechanics on said public work  and  the  hours  of labor  performed  by such laborers, workmen and mechanics on said public work. The fiscal officer in such investigation shall  be  deemed  to  be acting  in  a  judicial  capacity,  and  shall  have  the right to issue subpoenas, administer oaths and examine witnesses. The enforcement of  a subpoena  issued  under  this  section  shall  be regulated by the civil practice law and rules. Such fiscal officer shall make either an  order, determination  or any other disposition, including but not limited to an agreed upon settlement and/or stipulation, within six  months  from  the date  of  filing  of  such  verified  complaint,  and where a compliance investigation is made without the filing of a verified complaint, within six months from the date a compliance investigation is initiated by such fiscal officer. Upon the making of said order or determination, or  upon arriving  at  such  agreed  upon  settlement  and/or stipulation, a copy thereof shall be sent by certified mail, return  receipt  requested,  by the fiscal officer: (i) to the person and employee organization, if any, who or which initiated the complaint, (ii) to the person or corporation, if  any,  against  whom  the  complaint  was  brought, and (iii) where a compliance investigation is made without the filing of a  complaint,  to the person who or which was the subject of the compliance investigation.   7-a.  The fiscal officer must make an inquiry as to the willfulness of the alleged violation which is the subject of a compliance investigation pursuant to subdivision seven of this section. In  the  event  a  formal hearing  is  held  pursuant  to  subdivision  eight of this section, the fiscal officer, upon a review of the entire  record  and  a  finding  of credible  evidence,  must make a determination, as to the willfulness of said  violation.  No  finding  of  willfulness  made  pursuant  to   the provisions  of  this  subdivision  shall  be  dispositive  in a criminal prosecution initiated pursuant to section one hundred ninety-eight-a  of this  chapter, or paragraph (d) of subdivision three of this section, or paragraph (c) of subdivision  three-a  of  this  section  or  any  other provision of law.   8.  Hearings.  Before issuing an order or determination as provided in subdivision seven of this section, the  fiscal  officer  shall  order  a hearing  thereon  at  a  time  and place to be specified, and shall give notice thereof, together with a copy of such complaint  or  the  purpose thereof,  or a statement of the facts disclosed upon such investigation, which notice shall be  served  personally  or  by  mail  on  any  person affected  thereby;  such person shall have an opportunity to be heard in respect to the matters complained of at the time and place specified  in such  notice,  which  time  shall  be  not  less than five days from the service of the notice personally or by mail. The fiscal officer in  such  hearing  shall  be deemed to be acting in a judicial capacity, and shall have  the  right  to  issue  subpoenas,  administer  oaths  and  examine witnesses. The enforcement of a subpoena issued under this section shall be  regulated by the civil practice law and rules. Such hearing shall be expeditiously conducted and upon such hearing the fiscal  officer  shall determine  the issues raised thereon and shall make and file an order in the office  of  the  fiscal  officer  stating  such  determination,  and forthwith  serve  a  copy  of  such  order,  with a notice of the filing thereof, upon the parties to such proceeding,  personally  or  by  mail. Such order shall direct payment of wages or supplements found to be due, including  interest at the rate of interest then in effect as prescribed by  the  superintendent  of  financial  services  pursuant  to   section fourteen-a   of  the  banking  law  per  annum  from  the  date  of  the underpayment to the date of the payment, provided,  however,  that  such interest rate shall not apply to subdivision eight-c of this section.   In  addition  to  directing  payment of wages or supplements including interest found to be due, such order may direct payment of a further sum as a civil penalty in an amount not exceeding twenty-five percent of the total amount found to be due. In assessing the amount  of  the  penalty, due consideration shall be given to the size of the employer's business, the  good  faith  of  the  employer,  the  gravity of the violation, the history  of  previous  violations  and  the  failure  to   comply   with recordkeeping  or  other non-wage requirements. Where the fiscal officer is the commissioner, the penalty shall be paid to the  commissioner  for deposit  in  the  state  treasury.  Where  the  fiscal officer is a city comptroller or other analogous officer, the penalty  shall  be  paid  to said officer for deposit in the city treasury.   Upon  the entry of such order any party aggrieved thereby may commence a proceeding for the review thereof pursuant to article seventy-eight of the civil practice law and rules within thirty days from the  notice  of the  filing  of the said order in the office of the fiscal officer. Said proceeding shall be commenced directly in the appellate division of  the supreme  court. If such order is not reviewed, or is so reviewed and the final decision is in favor of the complainant and the order involves  or relates  to  the  rate of wages paid or the supplements provided on such public work, the complainant or any other person affected may within six months after the service of notice of the filing of said order,  or  the notice  of  entry  of said final decision on review, institute an action against the person found violating this act  for  the  recovery  of  the difference  between  the  sum  actually  paid or provided and the amount which should have been paid or provided, together with interest  at  the rate  of  interest  provided  herein,  as  determined  by  said order or decision, as the case may be, from and after the date of the  filing  of said verified complaint, with the fiscal officer or of the filing of the fiscal  officer's  report  of  investigation made on his own initiative. Provided that no proceeding for judicial review as provided herein shall then be pending and the time for initiation  of  such  proceeding  shall have  expired,  the fiscal officer may file with the county clerk of the county where the employer resides or has a place of business  the  order of  the fiscal officer containing the amount found to be due. The filing of such order shall have the full force and effect of  a  judgment  duly docketed  in  the office of such clerk. The order may be enforced by and in the name of the fiscal officer in the  same  manner,  and  with  like effect,  as  that prescribed by the civil practice law and rules for the enforcement of a money judgment.   8-a. Notwithstanding any inconsistent provision of this chapter or  of any   other  general,  special  or  local  law,  ordinance,  charter  or administrative code, the prior receipt without  protest  of  the  wages,  salary  or  supplements  paid  or  provided,  as the case may be, to the complainant or any other person affected by such  final  order,  or  his failure  to state orally or in writing upon any payroll or receipt which he is required to sign that the wages, salary or supplements received by him  is  received  under  protest,  or  to indicate in any other way his protest against the amount thereof, or that the amount so paid does  not constitute payment in full of the wages or salary due him for the period covered  by  such  payment,  or  that  the  supplements  provided do not constitute the full supplements due him, shall not be a bar to his right to recover, in accordance with the provisions of subdivision eight,  the difference  between  the  sum actually paid or provided, as the case may be, and the amount which should have been paid or provided, as the  case may be, as determined by such final order.   8-b.  Notwithstanding any inconsistent provision of this chapter or of any  other  general,  special  or  local  law,  ordinance,  charter   or administrative   code,   an   employee   of   a  municipal  corporation, irrespective of the title of his position or employment, whose salary or wage or supplement is fixed by reference to a prevailing  rate  of  wage determined or to a prevailing practice for supplements determination and established  by  a  final  order  in  a proceeding instituted under this section, shall not be barred from his right to  recover,  in  accordance with  the  terms  of  such  fixation,  the difference between the amount actually paid to him and the amount which should have been paid  to  him or  provided,  as the case may be, pursuant to such fixation, because of the prior receipt by  him  without  protest  of  the  salary,  wages  or supplements  paid  or provided to him, as the case may be; or because he did not previously protest his prior failure to  be  provided  with  any supplement  whatsoever;  or on account of his failure to state orally or in writing upon any payroll or receipt which he is required to sign that the salary or wages or supplements received by  him  is  received  under protest,  or  on  account of his failure to indicate his protest against the amount or non-provision thereof  or  that  the  amount  so  paid  or provided  does  not constitute payment or provision, as the case may be, in full of the salary, wages  or  supplement  due  him  for  the  period covered by such payment.   8-c.  Interest  at six percentum per annum shall begin to accrue sixty days after a final  determination  made  by  a  fiscal  officer  on  the difference  between the prevailing wages so determined, and which should have been paid to an employee of a municipal corporation, and the amount actually received by him. Said accumulated interest shall be paid to the employee when back pay based on the determination is paid to him.   8-d. Notwithstanding any inconsistent provision of this chapter or  of any  other  law,  in  a city of one million or more, where a majority of laborers, workmen or mechanics in a particular civil service  title  are members  of  an  employee  organization  which  has  been  certified  or recognized to represent them  pursuant  to  the  provisions  of  article fourteen of the civil service law or a local law enacted thereunder, the public  employer  and  such  employee  organization  shall in good faith negotiate and enter into a written agreement with respect to  the  wages and  supplements  of the laborers, workmen or mechanics in the title. If the parties fail to achieve an agreement, only the employee organization shall be authorized to file a  single  verified  complaint  pursuant  to subdivision  seven  herein,  on  behalf  of  the  laborers,  workmen  or mechanics so represented. Such employee organization shall be  the  sole and  exclusive  representative of such laborers, workmen or mechanics at any hearing pursuant to subdivision eight herein, and shall be the  sole complainant in the proceeding for all purposes therein, including review pursuant  to  article seventy-eight of the civil practice law and rules.  Service by the fiscal officer on  the  employee  organization  shall  be sufficient  notice  to the laborers, workmen or mechanics so represented for all purposes of subdivision eight herein, except that  the  issuance and  enforcement  of  subpoenas shall be regulated by the civil practice law and rules. Any order,  compromise,  or  settlement  determining  the issues  raised  upon  such a proceeding, which has not been taken up for review by the employee organization, shall be binding upon the laborers, workmen or mechanics represented by the employee  organization.  Nothing herein shall be construed to limit the rights of any laborer, workman or mechanic  who  has  on  file a verified complaint prior to the effective date of this subdivision.   9. When a final determination  has  been  rendered,  any  person  that wilfully  refuses  thereafter to pay the rate of wages or to provide the supplements determined to be prevailing, or  wilfully  employs  on  such public  work, laborers, workmen or mechanics more than the hours per day determined by said order until modified by order of the  fiscal  officer or  court  and  thereby violates the provisions of this section shall be guilty of a misdemeanor and upon conviction thereof shall  be  punished, in accordance with the penal law. A person who violates this subdivision after  having  previously  been  convicted of violating this subdivision within the past five years shall be guilty of a class E felony,  and  in addition  thereto the contract on which the violation has occurred shall be forfeited; and no such person shall be entitled to  receive  any  sum nor  shall any officer, agent or employee of the state or of a municipal corporation pay the same or authorize its payment from the  funds  under his  charge  or  control  to  any  such  person  for  work done upon any contract, on which the contractor has been convicted of  second  offense in violation of the provisions of this section.