2023 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.  (i)  Utility  companies  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.
(ii)  Utility  company contractors and subcontractors to whom a permit
may be issued, to use or open a street, shall be required to comply with
section two hundred twenty-four-f of this article, as a condition of the
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.
f. Prevailing wage shall be paid for work performed on a public  works
worksite pursuant to this section for any work involving the delivery to
and  hauling  from  such  worksites  of  aggregate  supply  construction
materials, as well as any return hauls, whether empty or loaded and  any
time spent loading/unloading.
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.