N.Y. LAB. LAW § 220 : NY Code - Section 220: Hours, wages and supplements

Search N.Y. LAB. LAW § 220 : NY Code - Section 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.
    * NB Effective until October 27, 2012
    * 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 which may involve the employment  of  laborers,  workmen  or
  mechanics  shall  contain  a  stipulation  that  no  laborer, workman 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, workmen 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  industrial  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
  industrial  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,  workmen  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 industrial commissioner determines that there  are
  not   sufficient   workmen,   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 industrial commissioner  for  the  preservation  of  the
  contract site and for the protection of the life and limb of the persons
  using  the  same, the industrial commissioner shall grant a dispensation
  permitting all laborers, workmen and mechanics, or any classification of
  such laborers, workmen and mechanics, to work such additional  hours  or
  days  per  week  on  such public project or in such areas the industrial
  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,  workmen  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 industrial 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.
    * NB Effective October 27, 2012
    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.
    * NB Effective until October 27, 2012
    * (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 workmen, 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  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 subdivision also shall include
  reconstruction and repair of any such public work.
    * NB Effective October 27, 2012
    (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  rate  of  wage  for  their  particular  job
  classification.  Such  notification  shall  be  given  to every laborer,
  worker or mechanic on their first pay  stub  and  with  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 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 any notice
  required under this subdivision, (2) failed to set forth the  prevailing
  wage on the pay stub, (3) wilfully posted the incorrect prevailing wage,
  or (4) wilfully set forth the incorrect prevailing wage on the 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.
    (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. 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 wilfully fails to file such payroll
  records with the department of jurisdiction shall be guilty of a class E
  felony.  In addition, any person who wilfully 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. 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 banks 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.