2023 New York Laws › LAB - Labor › Article 8 - Public Work › 224-A - Prevailing Wage Requirements Applicable to Construction Projects Performed Under Private Contract.

§  224-a.  Prevailing  wage  requirements  applicable  to construction
projects performed under private contract. 1. Subject to the  provisions
of this section, each "covered project" as defined in this section shall
be  subject  to  prevailing wage requirements in accordance with section
two hundred twenty and two hundred twenty-b of this article. A  "covered
project"  shall mean construction work done under contract which is paid
for in whole or in part out of public funds as such term is  defined  in
this section where the amount of all such public funds, when aggregated,
is  at  least thirty percent of the total construction project costs and
where such project  costs  are  over  five  million  dollars  except  as
provided for by section two hundred twenty-four-c of this article.
2.  For purposes of this section, "paid for in whole or in part out of
public funds" shall mean any of the following:
a. The payment of money, by a public entity, or a third  party  acting
on  behalf  of and for the benefit of a public entity, directly to or on
behalf of the contractor, subcontractor, developer or owner that is  not
subject to repayment;
b.  The  savings  achieved  from fees, rents, interest rates, or other
loan costs, or insurance costs that are lower than  market  rate  costs;
savings  from  reduced taxes as a result of tax credits, tax abatements,
tax exemptions or tax increment financing; savings from payments in lieu
of taxes; and any other savings from reduced, waived, or forgiven  costs
that  would  have  otherwise been at a higher or market rate but for the
involvement of the public entity;
c. Money loaned by the public  entity  that  is  to  be  repaid  on  a
contingent basis;
d.  Credits that are applied by the public entity against repayment of
obligations to the public entity; or
e. Benefits under section  four  hundred  sixty-seven-m  of  the  real
property tax law.
3.  For purposes of this section, "paid for in whole or in part out of
public funds" shall not include:
a. Benefits under  section  four  hundred  twenty-one-a  of  the  real
property tax law;
b.  Funds  that are not provided primarily to promote, incentivize, or
ensure that construction work is performed,  which  would  otherwise  be
captured in subdivision two of this section;
c.   Funds  used  to  incentivize  or  ensure  the  development  of  a
comprehensive sewage system,  including  connection  to  existing  sewer
lines  or  creation  of  new  sewage  lines or sewer capacity, provided,
however, that such work shall be deemed to  be  a  public  work  covered
under the provisions of this article;
d. tax benefits provided for projects the length or value of which are
not able to be calculated at the time the work is to be performed;
e.  tax  benefits  related  to  brownfield  remediation  or brownfield
redevelopment pursuant to section twenty-one,  twenty-two,  one  hundred
eighty-seven-g or one hundred eighty-seven-h of the tax law, subdivision
seventeen  or  eighteen  of  section  two  hundred ten-B of the tax law,
subsection (dd) or (ee) of section six hundred six of the  tax  law,  or
subdivision (u) or (v) of section fifteen hundred eleven of the tax law;
f.   funds   provided   pursuant   to  subdivision  three  of  section
twenty-eight hundred fifty-three of the education law;
g. any other public monies, credits, savings or loans,  determined  by
the public subsidy board created in section two hundred twenty-four-c of
this article as exempt from this definition; and
h.  benefits  under  section  four  hundred  eighty-five-x of the real
property tax law.
4. For purposes of this section "covered project"  shall  not  include
any of the following:
a. Construction work on one or two family dwellings where the property
is  the  owner's  primary  residence,  or construction work performed on
property where the owner of the property owns no more than four dwelling
units;
b. Construction work performed under a contract with a  not-for-profit
corporation  as defined in section one hundred two of the not-for-profit
corporation  law,  other  than  a  not-for-profit   corporation   formed
exclusively  for the purpose of holding title to property and collecting
income thereof or any public entity as defined in  this  section,  where
the not-for-profit corporation has gross annual revenue and support less
than five million dollars;
c.   Construction  work  performed  on  a  multiple  residence  and/or
ancillary amenities or installations that is wholly privately  owned  in
any of the following circumstances except as provided for by section two
hundred twenty-four-c of this article:
(i)  where  no  less than twenty-five percent of the residential units
are  affordable  and  shall  be  retained  subject  to  an   anticipated
regulatory  agreement  with  a  local,  state,  or  federal governmental
entity, or a not-for-profit entity with an anticipated formal  agreement
with  a  local,  state,  or  federal governmental entity for purposes of
providing affordable housing in a given locality or region provided that
the period of affordability for a  residential  unit  deemed  affordable
under the provisions of this paragraph shall be for no less than fifteen
years from the date of construction; or
(ii)  where  no less than thirty-five percent of the residential units
involves the provision of supportive  housing  services  for  vulnerable
populations  provided  that  such  units  are  subject to an anticipated
regulatory agreement  with  a  local,  state,  or  federal  governmental
entity; or
(iii)  any newly created programs for affordable or subsidized housing
as determined by the public subsidy board  established  by  section  two
hundred twenty-four-c of this article.
d.  Construction work performed on a manufactured home park as defined
in paragraph three of subdivision a of section two hundred  thirty-three
of  the real property law where the manufactured home park is subject to
a regulatory agreement with a  local,  state,  or  federal  governmental
entity for no less than fifteen years;
e.  Construction work performed under a pre-hire collective bargaining
agreement between an owner or contractor and a bona  fide  building  and
construction  trade  labor  organization which has established itself as
the collective  bargaining  representative  for  all  persons  who  will
perform work on such a project, and which provides that only contractors
and  subcontractors  who  sign a pre-negotiated agreement with the labor
organization can perform work on such a project,  or  construction  work
performed under a labor peace agreement, project labor agreement, or any
other construction work performed under an enforceable agreement between
an  owner  or contractor and a bona fide building and construction trade
labor organization;
f. Construction work performed on projects funded by section sixteen-n
of the urban development corporation act or the downtown  revitalization
initiative;
g. Construction work and engineering and consulting services performed
in  connection  with  the  installation  of  a  renewable energy system,
renewable heating or cooling system, or energy storage  system,  with  a
capacity equal to or under five megawatts alternating current;
h.  Construction  work  performed on supermarket retail space built or
renovated with tax incentives provided under the food  retail  expansion
to  support  health (FRESH) program through the New York city industrial
development agency;
i.  Construction work performed for interior fit-outs and improvements
under  ten  thousand  square  feet  through  small  business  incubation
programs operated by the New York city economic development corporation;
j.  Construction  work  on  space  to  be used as a school under sixty
thousand square feet, pursuant to a lease from a private  owner  to  the
New  York  city  department  of  education  and  the school construction
authority; or
k. Construction work performed on projects that received tax  benefits
related to historic rehabilitation pursuant to subdivision twenty-six of
section  two  hundred  ten-B  of the tax law, subsection (oo) or (pp) of
section six hundred six of the tax law, or subdivision  (y)  of  section
fifteen hundred eleven of the tax law.
5.  For  purposes  of this section, "public entity" shall include, but
shall not be limited to, the state, a local development  corporation  as
defined  in  subdivision  eight  of  section eighteen hundred one of the
public authorities  law  or  section  fourteen  hundred  eleven  of  the
not-for-profit  corporation  law,  a municipal corporation as defined in
section  one  hundred  nineteen-n  of  the  general  municipal  law,  an
industrial  development  agency formed pursuant to article eighteen-A of
the general municipal law or industrial development  authorities  formed
pursuant  to article eight of the public authorities law, and any state,
local or interstate or international authorities as defined  in  section
two  of  the public authorities law; and shall include any trust created
by any such entities.
6. For purposes of this section, "construction" means work which shall
be as defined  by  the  public  subsidy  board  to  require  payment  of
prevailing  wage,  and  which  may  involve  the employment of laborers,
workers, or mechanics.
7. For purposes of this section and section two hundred  twenty-four-b
of  this  article,  the  "fiscal  officer"  shall  be  deemed  to be the
commissioner.
8. The enforcement of any construction work deemed  to  be  a  covered
project pursuant to this section, and any additional requirements, shall
be  subject,  in  addition  to this section, only to the requirements of
sections two hundred twenty,  two  hundred  twenty-four-b,  two  hundred
twenty-four-c,  and  two hundred twenty-b of this article and within the
jurisdiction of the fiscal officer; provided, however, nothing contained
in this section shall be deemed  to  construe  any  covered  project  as
otherwise  being  considered  public  work pursuant to this article; and
further provided:
a. The owner or developer of such covered project shall certify  under
penalty of perjury within five days of commencement of construction work
whether  the  project  at  issue  is  subject  to the provisions of this
section through the use of a  standard  form  developed  by  the  fiscal
officer.
b.  The  owners  or  developers  of  a  property who are undertaking a
project under private  contract,  may  seek  guidance  from  the  public
subsidy  board  contained  in  section two hundred twenty-four-c of this
article, and such board may render an opinion as to whether or  not  the
project  is  a  covered  project within the meaning of this article. Any
such determination shall not be reviewable by the  fiscal  officer,  nor
shall it be reviewable by the department pursuant to section two hundred
twenty of this article.
c.  The  owner  or developer of a covered project shall be responsible
for retaining original payroll records in accordance  with  section  two
hundred  twenty  of  this  article  for  a  period of six years from the
conclusion of such work. All payroll records maintained by an  owner  or
developer  pursuant  to  this  section shall be subject to inspection on
request of the fiscal officer. Such owner or developer may authorize the
prime contractor of the construction project to take responsibility  for
retaining  and maintaining payroll records, but will be held jointly and
severally liable for any violations  of  such  contractor.  All  records
obtained  by  the  fiscal  officer  shall  be  subject to the Freedom of
Information Law.
d. Each public entity providing any of  the  public  funds  listed  in
subdivision  two  of  this section to an owner, developer, contractor or
subcontractor of a project shall identify the nature and dollar value of
such funds and whether any such funds  are  excluded  under  subdivision
three of this section and shall so notify the recipient of such funds of
such  determination  and  of their obligations under paragraph a of this
subdivision.
e. The fiscal officer may issue rules and  regulations  governing  the
provisions  of this section. Violations of this section shall be grounds
for determinations and orders pursuant to section two  hundred  twenty-b
of this article.
9.  Each  owner  and  developer  subject  to  the requirements of this
section shall comply with the  objectives  and  goals  of  minority  and
women-owned  business  enterprises  pursuant to article fifteen-A of the
executive law and service-disabled veteran-owned businesses pursuant  to
article seventeen-B of the executive law. The department in consultation
with  the  directors  of  the  division of minority and women's business
development and of the division of service-disabled  veterans'  business
development  shall  make  training  and  resources  available  to assist
minority  and  women-owned  business  enterprises  and  service-disabled
veteran-owned  business  enterprises  on  covered  projects  achieve and
maintain compliance with prevailing wage  requirements.  The  department
shall make such training and resources available online and shall afford
minority  and  women-owned  business  enterprises  and  service-disabled
veteran-owned business enterprises an opportunity to submit comments  on
such training.
10.  a. The fiscal officer shall report to the governor, the temporary
president of the senate, and the speaker of the assembly by July  first,
two  thousand  twenty-two, and annually thereafter, on the participation
of minority and women-owned business enterprises in relation to  covered
projects and contracts for public work subject to the provisions of this
section  and  section two hundred twenty of this article respectively as
well as  the  diversity  practices  of  contractors  and  subcontractors
employing laborers, workers, and mechanics on such projects.
b.  Such  reports shall include aggregated data on the utilization and
participation of minority  and  women-owned  business  enterprises,  the
employment  of minorities and women in construction-related jobs on such
projects, and the commitment of contractors and subcontractors  on  such
projects  to  adopting  practices  and  policies  that promote diversity
within the workforce. The reports shall also examine the  compliance  of
contractors  and  subcontractors with other equal employment opportunity
requirements and anti-discrimination laws,  in  addition  to  any  other
employment practices deemed pertinent by the commissioner.
c.  The  fiscal officer may require any owner or developer to disclose
information on the participation of minority  and  women-owned  business
enterprises   and   the   diversity   practices   of   contractors   and
subcontractors involved in the performance of any  covered  project.  It

shall  be  the  duty  of the fiscal officer to consult and to share such
information in order to effectuate the requirements of this section.
11.  If  construction  work  is  not  deemed  to be a covered project,
whether by virtue of an exclusion of such project under subdivision four
of this section, or by virtue or not receiving sufficient  public  money
to  be  deemed  "paid for in whole or in part out of public funds", such
project shall not be subject to the requirements of sections two hundred
twenty and two hundred twenty-b of this article.