ARTICLE 1 Short Title: Definitions
Section 1. Short title. This chapter shall be known as the "Labor
Law."
Definitions. Whenever used in this chapter:
1. "Department" means the department of labor of the state of New
York.
2. "Commissioner" means the commissioner of labor of the state of New
York.
3. "Board," as determined by the context, shall mean either the
workmen's compensation board or the industrial board of appeals of the
state of New York.
4. "Rule" means any rule or regulation made by the industrial
commissioner and any amendment or repeal thereof.
5. "Employee" means a mechanic, workingman or laborer working for
another for hire.
6. "Employer" means the person employing any such mechanic, workingman
or laborer, whether the owner, proprietor, agent, superintendent,
foreman or other subordinate.
7. "Employed" includes permitted or suffered to work.
8. "Person" includes a corporation or a joint-stock association.
8-a. "Agent" of a corporation includes, but is not limited to, a
manager, superintendent, foreman, supervisor or any other person
employed acting in such capacity.
9. "Factory" includes a mill, workshop or other manufacturing
establishment where one or more persons are employed at manufacturing,
including making, altering, repairing, finishing, bottling, canning,
cleaning or laundering any article or thing, in whole or in part, and
includes all buildings, sheds, structures or other places used for or in
connection therewith, except (a) dry dock plants engaged in making
repairs to ships and (b) power houses, generating plants and other
structures owned or operated by a public service corporation or a
municipal corporation other than construction or repair shops, subject
to the jurisdiction of the public service commission and (c) structures,
operated as refrigerated warehouses for the handling, packing,
refrigeration and storage of fruits and vegetables and which are subject
to the jurisdiction of or licensed by the department of agriculture and
markets, also structures used in cleaning or packing celery. The
provisions of this chapter affecting structural changes and alterations
shall not apply to factories or to any buildings, sheds or other places
used for or in connection therewith where less than six persons are
employed at manufacturing except as otherwise prescribed by the rules.
10. "Factory building" means a building, shed or structure which, or
any part of which, is occupied by or used for a factory, and in which at
least one-tenth or more than twenty-five of all the persons employed in
the building are engaged in work for a factory, but shall not include a
building in a city having a population of more than one million, used
exclusively by one employer and in which not more than one-tenth of all
the persons employed therein are engaged in work for a factory and
which, except for such factory work, would be classified as a mercantile
establishment. The provisions of this chapter shall apply to any part of
a building occupied or used as a factory, except as otherwise provided
by this subdivision.
11. "Mercantile establishment" means a place where one or more persons
are employed in which goods, wares or merchandise are offered for sale
and includes a building, shed or structure, or any part thereof,
occupied in connection with such establishment. The provisions of this
chapter affecting structural changes and alterations shall not apply to
mercantile establishments where less than six persons are employed
except as otherwise prescribed by the rules.
12. "Place of public assembly" shall include (1) a theatre, (2) moving
picture house, (3) assembly halls maintained or leased for pecuniary
gain where one hundred or more persons may assemble for amusement or
recreation, except (a) halls owned by churches, religious organizations,
granges, and public association and free libraries as defined by section
two hundred fifty-three of the education law, and (b) hotels having
fifty or more rooms.
13. "Public building" shall include a factory building, an office
building, a mercantile building, a hotel building, a theatre building, a
warehouse building, an apartment building, a state or municipal
building, a school, a college or university building, a building
containing a place of public assembly maintained or leased for pecuniary
gain, or any other building more than one story high except a dwelling
house less than three stories high or occupied by less than three
families.
14. All references to male employees in this chapter shall be deemed
to include female employees.
15. "Minor" means any person who has not attained the age of eighteen
years.
16. "Domestic worker" shall mean a person employed in a home or
residence for the purpose of caring for a child, serving as a companion
for a sick, convalescing or elderly person, housekeeping, or for any
other domestic service purpose. "Domestic worker" does not include any
individual (a) working on a casual basis, (b) who is engaged in
providing companionship services, as defined in paragraph fifteen of
subdivision (a) of section 213 of the fair labor standards act of 1938,
and who is employed by an employer or agency other than the family or
household using his or her services, or (c) who is a relative through
blood, marriage or adoption of: (1) the employer; or (2) the person for
whom the worker is delivering services under a program funded or
administered by federal, state or local government.
17. All references to labor law, chapter, article or section shall be
deemed to include any rule, regulation or order promulgated thereunder
or related thereto.
18. "Farm laborer" shall mean any individual who works on a farm and
is an employee under article nineteen of this chapter. Members of an
employer's immediate family who are related to the third degree of
consanguinity or affinity shall not be considered to be employed on a
farm if they work on a farm out of familial obligations and are not paid
wages, or other compensation based on their hours or days of work.
Prohibited employment. Whenever the provisions of this chapter
prohibit the employment of a person in certain work or under certain
conditions the employer shall not permit such person to so work, with or
without compensation, and in a prosecution or action therefor lack of
consent by the employer shall be no defense.
Work for a factory. Work shall be deemed to be done for a factory
whenever it is done at any place upon the work of a factory or upon any
of the materials entering into the product of the factory, whether under
contract or arrangement with any person in charge of or connected with
such factory directly or indirectly through one or more contractors or
other third persons.
ARTICLE 2 The Department of Labor
Department of labor; commissioner of labor. There shall continue
to be in the state government a department of labor. The head of the
department shall be the commissioner of labor. The commissioner of
labor shall be appointed by the governor, by and with the advice and
consent of the senate and hold office until the end of the term of the
governor by whom he was appointed, and until his successor is appointed
and has qualified. The present commissioner of labor shall be the head
of such department and shall hold office until the expiration of his
present term and until his successor is appointed and has qualified,
subject to the provisions of the public officers law. Whenever the
industrial commissioner is referred to or designated in any law, rule,
regulation, contract or document heretofore or hereafter enacted,
adopted or executed, such reference or designation shall be deemed to
refer to the commissioner of labor.
Domestic violence policy. The commissioner shall study the
issue of employees separated from employment due to acts of domestic
violence as referred to in and qualified by section four hundred
fifty-nine-a of the social services law. The commissioner shall consult
with the New York state office for the prevention of domestic violence
and its advisory council, the department of social services, the
division of women and members of the public in preparing such study.
Such study shall include a review of case histories in which
unemployment compensation was sought and an analysis of the policies in
other states. A copy of such study shall be transmitted to the temporary
president of the senate and the speaker of the assembly on or before
January fifteenth, nineteen hundred ninety-six and shall contain policy
recommendations.
Domestic violence employee awareness and assistance. The
commissioner shall assist the office for the prevention of domestic
violence in the creation, approval and dissemination of the model
domestic violence employee awareness and assistance policy as further
defined in subdivision nine of section five hundred seventy-five of the
executive law. Upon completion and approval of the model plan as
outlined in subdivision nine of section five hundred seventy-five of the
executive law, the commissioner shall assist in the promotion of the
model policy to businesses in New York state.
Workforce guidance and information for women initiative. 1.
The department shall provide guidance to local workforce investment
boards and staff, to enable them to better educate and inform both women
and men about higher paying jobs and careers including jobs
traditionally dominated by men. Such guidance shall promote program
services for job seekers that provide:
(a) current information about compensation for jobs and careers that
offer high earning potential including jobs that are traditionally
dominated by men;
(b) counseling, skills development and training that encourage both
women and men to seek employment in such jobs;
(c) referrals to employers offering such jobs; and
(d) current local labor market information regarding the gender wage
gap and specific self-sufficiency rates for families living and working
in that local labor market.
2. The commissioner shall prepare and submit to the governor, the
temporary president of the senate, and the speaker of the assembly an
annual evaluation report of the initiative no later than January first,
two thousand eighteen, and every year thereafter. The report shall
include:
(a) how many women were referred to counseling or skills development
and training for jobs and careers that offer high earning potential,
including jobs traditionally dominated by men;
(b) how many women were referred to such jobs;
(c) the ratio of women to men in such jobs and any change in that
ratio from the previous year; and
(d) any other information the commissioner deems relevant.
Deputy commissioner. There shall be a deputy commissioner, who
shall be appointed by and removed at the pleasure of the commissioner.
Transmission of labor market information. 1. For the purposes of
this section:
a. Department means the department of labor of the state of New York.
b. Commissioner means the industrial commissioner of the state of New
York.
c. Education department means the education department of the state of
New York.
d. Labor market information is defined to include, but not be limited
to, industry and occupational projections for those standard
metropolitan statistical areas for which the department compiles such
information and for the state of New York, "Applications and Openings"
publication, and the "New York State Annual Planning Report", providing,
however, that the commissioner shall have the power to include
additional publications, projections and other data to this definition
of labor market information.
e. Forward-facing employment data is defined to include, but not be
limited to, current and projected employment opportunities in the state
of New York, and shall include, but not be limited to, factors such as
geographical location or required training and experience for such
opportunities.
2. When it is jointly determined by the department and the education
department that labor market information or forward-facing employment
data prepared by the department is adequate in this prepared form, the
department shall transmit a copy of such information and data to: every
school district in the state of New York maintaining approved career
education programs, with a list of such school districts to be furnished
to the department by the education department; every board of
cooperative educational services maintaining approved career education
programs, with a list of such boards of cooperative educational services
to be furnished to the department by the education department; and every
community college and agricultural and technical institute in the state
of New York maintaining approved career education programs, with a list
of such colleges and institutes to be furnished to the department by the
education department. The education department shall regularly update
such lists to keep them current and transmit changes to the department
expeditiously.
3. The commissioner shall transmit to those school districts, boards
of cooperative educational services and community colleges and
agricultural and technical institutes located within a particular labor
market area, labor market information or forward-facing employment data
compiled for that area.
4. (a) The transmission of labor market information shall occur as
frequently as such labor market information is compiled or published by
the department, and in as expeditious a manner as possible following
such compilation or publication.
(b) The transmission of forward-facing employment data shall occur
bi-monthly, and in as expeditious a manner as possible following such
compilation or publication.
5. If a publication noted by title in this section shall be
discontinued by the department, the department shall transmit, pursuant
to the provisions of this section, the publication published by the
department which, in its opinion, provides the information most similar
to that information which had previously been provided by the
discontinued publication.
6. If a publication noted by title in this section shall have such
title changed, the department shall continue to transmit such
publications with its new title.
7. When the department and the education department jointly determine
that labor market information or forward-facing employment data prepared
by the department, to be transmitted pursuant to this section, requires
an explanatory analysis to be utilized to its fullest potential, the
education department shall provide an analysis of the information or
data, written in clear, concise and easily understandable language. Such
analysis shall consider, but not be limited to a consideration of, the
following: instructions for the proper use of such information or data
by individuals involved in the planning and development of career
education, the proper use of such information or data by individuals
involved in vocational and educational guidance, and the proper use of
such information or data by current and prospective career education
pupils in the selection of career education programs likely to offer the
greatest potential for employment upon graduation.
8. To effectuate the purposes of this section, the commissioner and
the commissioner of education, or their authorized designees, shall meet
on a regular basis which shall not be less than once a month, excepting
July and August when such meeting shall be discretionary.
9. It shall be the responsibility of such school districts, boards of
cooperative educational services, and community colleges and
agricultural and technical institutes in receipt of such publications
and sources of labor market information or forward-facing employment
data enumerated in this section to provide copies of such labor market
information or forward-facing employment data to those individuals
responsible for vocational and educational guidance at such school
districts, boards of cooperative educational services, community
colleges and agricultural and technical institutes.
Passenger tramway advisory council. 1. To advise the
commissioner of labor in relation to his duties and responsibilities
under the provisions of section two hundred two-c and article twenty-six
of this chapter, there shall be in the department an advisory council,
to be known as the passenger tramway advisory council, consisting of
seven members to be appointed by the governor, by and with the advice
and consent of the senate, and one of whom shall be designated as
chairman by the governor. Each of four members of the council shall be
an officer or employee of a ski center, and three members of the council
shall be representatives of the public and shall not be, nor within five
years immediately preceding appointment have been an officer or employee
of a ski center.
2. The term of each member of such advisory board shall be for five
years, or until a successor is appointed. Any member of the board chosen
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.
Any member of the council may be removed by the governor for misconduct,
incompetence or neglect of duty after being given a written statement of
the charges and an opportunity to be heard thereon.
3. Each member of the advisory council shall serve without salary or
other compensation, but shall be allowed necessary and actual
transportation expenses incurred in the performance of his or her
duties, and when in travel status shall receive an additional fifty-five
dollars and when in travel status in a county or a city with a
population in excess of seven hundred thousand an additional
seventy-five dollars.
4. The advisory council shall consider all matters in connection with
ski tows, other passenger tramways and downhill skiing referred to it by
the commissioner and advise him with respect thereto, and on its own
initiative, or upon the suggestion of others, may make such
recommendations to the commissioner in connection with ski tows, other
passenger tramways and downhill skiing as, after consideration by it,
may be deemed necessary.
5. The commissioner shall designate an officer or employee of the
department to act as secretary of the advisory council, who shall not be
a member of such council and who shall not receive any additional
compensation therefor.
6. The advisory council may adopt rules and regulations to govern its
own proceedings. The secretary shall keep a complete record of all
proceedings of the advisory council which shall show the names of the
members present at each meeting and every matter considered by the
advisory council and the action taken thereon. Such records shall be
filed in the office of the department.
* § 12-d. Advisory council on farm labor safety. 1. There is hereby
established in the department of labor an advisory council on farm labor
safety to make a study and investigation of the problems of providing
adequate protection to farm workers against injuries arising out of
their employment. Such study and investigation shall include: (a) the
unique and special conditions involved in farm safety; (b) the need for
education and training programs for the protection of farm workers
against accidents; (c) the identification of areas where existing
educational and training programs are insufficient to provide adequate
protection to farm workers against accidents; (d) the methods of
encouraging farmers and farm groups to establish such education and
training programs; and (e) all matters and approaches for the protection
of farm workers against accidents referred by the industrial
commissioner.
2. The advisory council shall consist of ten members appointed by the
industrial commissioner. The members shall be representative of farmers,
growers, farm workers and other persons and groups concerned with
agricultural safety. One of the members shall be designated as chairman
by the industrial commissioner. The chairman of the board of standards
and appeals, the commissioner of agriculture and markets, the
commissioner of education, and the dean of the college of agriculture at
Cornell University, or their designated representatives, shall be
additional members of the council, who shall serve by virtue of their
positions, without voting power.
The industrial commissioner shall designate an officer or employee of
the department of labor to act as secretary of the advisory council, who
shall not be a member of such council and who shall not receive any
additional compensation therefor.
3. The advisory council may take testimony, subpoena witnesses, and
require the production of books, records and papers, and hold public or
private hearings.
4. The advisory council may request and shall receive such assistance,
service and data from any agency of the state or from any political
subdivision thereof as will enable it properly to carry out its
activities hereunder and effectuate the purposes herein set forth.
5. The advisory council shall, from time to time, but not less
frequently than on December first of each year, submit a report to the
industrial commissioner, and shall submit a final report on or before
March thirty-first, nineteen hundred seventy-two. Such reports may
include such recommendations as the council finds appropriate on the
basis of its studies and investigations.
6. The appointed members of the advisory council shall receive no
compensation for their services but shall receive in lieu of expenses
incurred in the performance of their duties the sum of sixty dollars for
each day or part thereof spent in attendance at meetings or otherwise in
the work of the council, but no member shall receive in excess of twelve
hundred dollars during any one fiscal year.
7. The advisory council may adopt rules and regulations to govern its
own proceedings. The secretary shall keep a record of all proceedings of
the council, which shall show the name of each member present at the
meetings and every matter considered by the council and the action taken
thereon. Such records shall be filed in the office of the secretary of
the department of labor.
* NB Expired March 31, 1972
Oaths of office. The industrial commissioner, members of the
industrial board of appeals and the deputy commissioner shall, before
entering upon the duties of their office, take and subscribe the
constitutional oath of office. Such oaths shall be filed in the office
of the department of state.
Offices of the department. The principal office of the
department shall be in the city of Albany in rooms designated by the
commissioner of general services as provided by law. There shall be a
branch office in the city of New York and other branch offices may be
established and maintained by the department in such places as the
industrial commissioner may determine and for which appropriations are
made by the legislature. The industrial commissioner may, with the
commissioner of commerce and the commissioner of transportation, develop
and institute a procedure for the uniform collection of employment and
economic data within the state for use in connection with the scheduling
of public works projects.
Seal. The commissioner may adopt a seal of the department and
require that it be used for the authentication of orders and proceedings
and for such other purpose as he may prescribe.
Vacancies and removals. If a vacancy shall occur or exist in the
office of the industrial commissioner it shall be filled by appointment
by the governor, by and with the advice and consent of the senate, for a
term expiring with that of the governor by whom the appointment was
made. The governor may remove the commissioner in the manner provided by
the public officers law.
Expenses. The commissioner shall devote his entire time to the
duties of his office. The reasonable and necessary expenses of the
department and the reasonable and necessary traveling and other expenses
of the commissioner, deputy commissioner and other officers and
employees of the department, while actually engaged in the performance
of their duties, outside of the city of Albany, or if any such officer
or employee be in charge of or actually employed at a branch office of
the department, the reasonable and necessary traveling and other
expenses outside of the place in which such branch office is located,
shall be paid from the state treasury upon the audit and warrant of the
comptroller, upon vouchers approved by the commissioner.
Officers and employees. The officers, deputy commissioners and
employees of the department of labor in office when this section takes
effect shall continue in office subject to the power of removal or the
appointment of their successors as provided in this chapter. There shall
be in such department and the commissioner may appoint such heads of
divisions or bureaus and such inspectors, investigators, statisticians
and other assistants and employees as he shall deem necessary for the
exercise of the powers and the performance of the duties of the
department.
The commissioner may transfer officers or employees from their
positions to other positions in the department, or abolish or
consolidate such positions. The commissioner may remove from office any
officer or employee in the department. All such transfers, removal of
employees or officers and abolishment or consolidation of positions
shall be made in accordance with the provisions of the civil service
law.
Sick leave for per diem employees. A per diem officer or
employee holding a position in the competitive, non-competitive or labor
class of the civil service of the state whose compensation or salary is
on a per diem basis may be granted a sick leave with pay of not more
than thirty days in each year by the head of the department, bureau,
commission, agency, board or council of said state. The provisions of
this section shall not apply to any employee who is subject to the rules
governing sick leave, vacation and other time allowances adopted by the
state civil service commission pursuant to law.
Divisions or bureaus. Existing divisions or bureaus in the
department shall continue until changed, consolidated or abolished
pursuant to this section. The commissioner may establish such divisions
or bureaus as may be necessary for the administration and operation of
the department, under this chapter, and may change, consolidate or
abolish divisions or bureaus. Each division and bureau shall be subject
to the supervision and direction of the commissioner, and shall have
jurisdiction of such matters, exercise such powers and perform such
duties as may be assigned to it by the commissioner.
General powers and duties of commissioner. The commissioner
shall be the administrative head of the department and shall have,
notwithstanding any provision of law to the contrary, general
administrative supervision over the several divisions, boards,
commissions, bureaus, and agencies thereof whether established under the
provisions of this chapter or the workmen's compensation law and in
connection therewith, the commissioner:
1. Shall enforce all the provisions of this chapter and may issue such
orders as he finds necessary directing compliance with any provision of
this chapter, except as in this chapter otherwise provided;
2. Shall cause proper inspections to be made of all matters prescribed
by this chapter;
3. Shall cause investigations to be made of the condition of women in
industry;
* 3-a. Shall prepare and submit to the governor, the temporary
president of the senate and the speaker of the assembly on or before the
thirtieth day of September an annual report on the status of older
workers including those over the age of sixty-five in New York state.
Such report shall describe in detail the employment needs of such older
workers and the ability of existing state employment services to deal
with the problems of older workers. The report shall consider the need
for affirmative action, training, counseling, development of alternative
work schedules, job development activities within the public and private
sector, and the need for improved use by older workers of publicly
funded programs for employment and employment-related services. The
report shall also consider the economic impact of unemployment among
older workers and shall contain recommendations, including the
associated costs, for improved programs or for changes in statutes or
regulations to provide increased employment opportunities for older
workers.
* NB Expired October 1, 1981
4. Shall inquire into and report on the causes of all strikes,
lockouts and other industrial controversies or labor disputes, and may
appoint boards of inquiry for that purpose;
5. Shall institute methods and procedures for the establishment of a
program for voluntary compliance by employers and employees with the
requirements of this act and all applicable safety and health standards
and rules and regulations promulgated pursuant to the authority of this
article;
6. Shall provide a method of encouraging employers and employees in
their efforts to reduce the number of safety and health hazards arising
from undesirable, inappropriate, or unnecessary working conditions at
the workplace and of stimulating employers and employees to institute
new and to perfect existing programs for providing safe and healthful
working conditions;
7. May provide for the establishment and maintenance of public
employment offices for the purpose of securing employment for men, women
and children;
8. May make investigations, collect and compile statistical
information and report upon the conditions of labor generally and upon
all matters relating to the enforcement and effect of the provisions of
this chapter and of the rules thereunder;
9. May enforce any lawful municipal ordinance, by-law or regulation
relating to any place affected by the provisions of this chapter, not in
conflict with provisions of this chapter;
10. May investigate the condition of noncitizens relative to their
employment in industry;
11. May issue such regulations governing any provision of this chapter
as he finds necessary and proper.
12. Shall compile and publish, on an annual basis, a list of all
regulations and notices required to be posted by employers for the
benefit of their employees pursuant to this chapter, the workers'
compensation law and any other state or federal law, rule or regulation.
13. Shall adopt regulations prescribing the methodology for
establishing an ongoing monthly statewide cost of labor index and an
annual county or appropriate multi-county labor market composite wage
rate, in consultation with the commissioner of education, for the
purpose of computation of building aid to school districts, as required
by subparagraph one of paragraph a of subdivision six of section
thirty-six hundred two of the education law.
14. Shall do all things necessary for the operation of the New York
state data center established in the department in cooperation with the
United States bureau of the census; to cooperate with other state
agencies, universities, regional organizations, boards, commissions, and
other entities in the dissemination of socio-economic information and
data through the New York state data center program; in relation to such
information and data, to provide technical assistance to other state
agencies, universities, regional organizations, boards, commissions and
other entities; and to prepare estimates and the official projections of
population, households and other characteristics of the state for use by
all state agencies. All employees transferred to the department shall be
transferred without further examination or qualification to the same or
similar titles and shall remain in the same collective bargaining units
and shall retain their respective civil service classifications, status
and rights pursuant to their collective bargaining units and collective
bargaining agreements.
15. Shall establish and maintain an online database to catalogue and
make available information on workforce development funding programs.
Such catalogue shall be updated no less than annually. For purposes of
this subdivision, the term "workforce development funding program" shall
mean a program that funds or provides targeted educational, occupational
or training services for the purpose of effecting the employability of
the participant, provides training or employment services, supports an
economic development activity by enhancing the skills of the state's
workforce, prepares individuals for employment, improves opportunities
for individuals to become employed, or promotes understanding of the
state labor force market through statistical studies, including but not
limited to programs that fund or provide English as a second language
and adult literacy. For each workforce development funding program, the
online database shall include, but not be limited to, the following
information for each funding program:
(i) the name of the funding program and the agency administering the
funding program;
(ii) a description of the purpose of the funding program;
(iii) a specific program Uniform Resource Locator ("URL"), if any;
(iv) the year the program was established;
(v) a catalog of federal domestic assistance numbers, if any;
(vi) the legal authority, including statute and regulation citations;
(vii) the program and fiscal contact information including agency
name, telephone number, and email address;
(viii) all eligibility requirements;
(ix) any program and special restrictions;
(x) any action or actions required to receive aid; and
(xi) a description of aid which shall include, but not be limited to,
the flow of funds between entities, the type of aid formula used, any
matching requirements and any maintenance of effort.
16. Beginning on December first, two thousand twenty-four, and every
December first thereafter, the department shall prepare a report of the
catalogue of workforce development funding programs established pursuant
to subdivision fifteen of this section comprised of analysis conducted
by the agency or entity responsible for each workforce development
funding program on the outcomes and effectiveness of such funding
programs and the number of persons served by such funding. Such analysis
must be submitted to the department by a date specified by the
department each year. Such report shall be submitted to the governor,
the temporary president of the senate, the speaker of the assembly, the
minority leader of the senate and the minority leader of the assembly
and shall be made publicly available on the department's website.
* § 21-a. The industrial commissioner is hereby authorized to enter
into agreements with the appropriate agencies of the United States,
whereby, in accordance with a law of the United States, the commissioner
shall cooperate with such appropriate agencies of the United States in
the administration and operation of programs of vocational training or
retraining, or the development of job skills, authorized by such law.
The commissioner shall cooperate with other departments, divisions and
agencies of the state in connection with any such programs and perform
such acts and exercise such powers as may be necessary to entitle the
state to receive benefits under such agreement. The commissioner is
further authorized to receive and disburse funds from the United States
or any agency thereof, in accordance with any such agreement.
* NB Enacted without section heading.
Power of the industrial commissioner to make agreements for
federal reimbursement to the state of certain expenses in connection
with veterans' training. The industrial commissioner is hereby
authorized to enter into agreements with the United States veterans'
administration to reimburse the state for expenses heretofore incurred
or hereafter to be incurred in connection with the administration of the
training of veterans and in the rendition of other services by the state
as provided for under title two of the "Servicemen's Readjustment Act of
1944" as now in force or as it may hereafter be amended, except with
respect to payments by the federal government for tuition, and other
fees and charges incidental thereto, of veterans attending state
educational institutions.
Power of commissioner to enter into agreements relating to
certain federal acts. The commissioner is hereby authorized and
empowered to take such steps, not inconsistent with law, as may be
necessary or desirable for the purpose of procuring for the people of
this state all of the benefits and assistance, financial or otherwise in
connection with or provided or to be provided for by or pursuant to, the
federal farm labor contractor registration act of nineteen hundred
sixty-three, the federal economic opportunity act of nineteen hundred
sixty-four, as amended, the federal fair labor standards act of nineteen
hundred thirty-eight, as amended, and the occupational safety provisions
of any federal act. The commissioner may enter into agreements with
appropriate agencies of the United States, and with any political
subdivision of the state, as may be necessary or required to receive
such benefits and assistance. The commissioner is further authorized to
receive and disburse such funds from the United States or any agency
thereof, or from any political subdivision of the state, in accordance
with the terms of any such agreement. The commissioner shall cooperate
with other departments, divisions, agencies, and political subdivisions
of the state in connection with any such agreement.
Power of commissioner to enter into agreement relating to
information obtained by the state directory of new hires. The
department, through the commissioner, shall enter into the agreement
provided for in section one hundred seventy-one-h of the tax law, and
shall take such other actions as may be necessary to carry out the
agreement provided for in such section for matching beneficiary records
of workers' compensation and state employment security programs with
information provided by employers to the state directory of new hires
for the purposes of verifying eligibility for such benefits and for
administering workers' compensation and state employment security
programs.
Powers of the commissioner to prepare and issue a notice to be
posted at worksite. 1. The commissioner is hereby authorized to prepare
and issue a notice to be posted at the worksite of each and every
apparel or garment manufacturer or contractor known to the department in
this state. Such notice shall be in English, Spanish, Chinese and
Korean, be printed in at least ten point type and shall clearly state:
(a) The duties of employers with regard to the rights of employees to
the receipt and payment of wages;
(b) A toll free number at the department to which employees may direct
questions or register complaints concerning an employer's failure to pay
wages or the conditions of employment; and
(c) The address of the regional department to file a complaint.
2. The notice required pursuant to subdivision one of this section
shall be distributed to employers in the apparel and garment industries
to be posted in a visible and prominent location within the worksite.
Job transition plan for certain climate risk-related and
energy transition projects. 1. The commissioner, in consultation with
labor organizations, shall develop a comprehensive plan to transition,
train, or retrain employees that are impacted by climate risk-related
and energy transition projects funded from the New York climate action
fund climate investment account established pursuant to section
ninety-nine-qq of the state finance law. This plan shall include a
method of allowing displaced and transitioning workers, including
affected labor organizations, to notify the commissioner of the loss of
employment, their previous title, and previous wage rates including
whether they previously received medical benefits, retirement benefits,
and/or other benefits. The plan shall require employers to notify the
commissioner of workers laid off or discharged due to climate
risk-related and energy transition projects funded from the New York
climate action fund climate investment account established pursuant to
section ninety-nine-qq of the state finance law.
2. Funding shall be made available for worker transition and
retraining, which shall include funding as provided by subdivision
twenty-seven-d of section one thousand five of the public authorities
law.
3. The commissioner shall create a program pursuant to which, where
applicable and feasible, newly created job opportunities shall be
offered to a pool of transitioning workers who have lost their
employment or will be losing their employment in the energy sector due
to climate risk-related and energy transition projects funded from the
New York climate action fund climate investment account established
pursuant to section ninety-nine-qq of the state finance law. Such
program shall include a method for the commissioner to communicate names
and contact information for displaced or transitioning workers to public
entities that may have job opportunities for such workers every ninety
days.
Administrative regulations. The commissioner may make, amend and
repeal regulations necessary for the internal administration of the
department, and not in conflict with the rules adopted by the workmen's
compensation board or the industrial board of appeals pursuant to this
chapter for the enforcement of the labor law. Such regulations shall not
be deemed rules within the meaning of this chapter unless the context
otherwise requires.
Delegation of powers by commissioner. The commissioner may by
order filed in the department delegate any of his powers to or direct
any of his duties to be performed by the deputy commissioner or a head
of a division or bureau of such department.
Power to enter and inspect premises. The commissioner or the
officers and employees of the department shall inspect every place which
is, or which they have reasonable cause to believe is, affected by the
provisions of this chapter, and they may in the discharge of their
duties enter any such places.
Power to administer the New York youth jobs program tax
credit.
(a) The commissioner is authorized to establish and administer the
program established under this section to provide tax incentives to
employers for employing at risk youth in part-time and full-time
positions. There will be ten distinct pools of tax incentives. Program
one will cover tax incentives allocated for two thousand twelve and two
thousand thirteen. Program two will cover tax incentives allocated in
two thousand fourteen. Program three will cover tax incentives allocated
in two thousand fifteen. Program four will cover tax incentives
allocated in two thousand sixteen. Program five will cover tax
incentives allocated in two thousand seventeen. Program six will cover
tax incentives allocated in two thousand eighteen. Program seven will
cover tax incentives allocated in two thousand nineteen. Program eight
will cover tax incentives allocated in two thousand twenty. Program nine
will cover tax incentives allocated in two thousand twenty-one. Program
ten will cover tax incentives allocated in two thousand twenty-two.
Program eleven will cover tax incentives allocated in two thousand
twenty-three. Program twelve will cover tax incentives allocated in two
thousand twenty-four. Program thirteen will cover tax incentives
allocated in two thousand twenty-five. Program fourteen will cover tax
incentives allocated in two thousand twenty-six. Program fifteen will
cover tax incentives allocated in two thousand twenty-seven. The
commissioner is authorized to allocate up to twenty-five million dollars
of tax credits under program one, ten million dollars of tax credits
under program two, twenty million dollars of tax credits under program
three, fifty million dollars of tax credits under each of programs four
and five, and forty million dollars of tax credits under programs six,
seven, eight, nine, ten, eleven, twelve, thirteen, fourteen and fifteen.
(b) Definitions. (1) The term "qualified employer" means an employer
that has been certified by the commissioner to participate in the
program established under this section and that employs one or more
qualified employees.
(2) The term "qualified employee" means an individual:
(i) who is between the age of sixteen and twenty-four;
(ii) who resides in a city with a population of fifty-five thousand or
more or a town with a population of four hundred eighty thousand or
more;
(iii) who is low-income or at-risk, as those terms are defined by the
commissioner;
(iv) who is unemployed prior to being hired by the qualified employer;
and
(v) who will be working for the qualified employer in a full-time or
part-time position that pays wages that are equivalent to the wages paid
for similar jobs, with appropriate adjustments for experience and
training, and for which no other employee has been terminated, or where
the employer has not otherwise reduced its workforce by involuntary
terminations with the intention of filling the vacancy by creating a new
hire.
(3) For programs four and five, the tax credit under each program
shall be allocated as follows: (i) thirty million dollars of tax credit
for qualified employees; and (ii) twenty million dollars of tax credit
for individuals who meet all of the requirements for a qualified
employee except for the residency requirement of subparagraph (ii) of
paragraph two of this subdivision, which individuals shall be deemed to
meet the residency requirements of subparagraph (ii) of paragraph two of
this subdivision if they reside in New York state.
(4) For programs six, seven, eight, nine, ten, eleven, twelve,
thirteen, fourteen, and fifteen the tax credit under each program shall
be allocated as follows: (i) twenty million dollars of tax credit for
qualified employees; and (ii) twenty million dollars of tax credit for
individuals who meet all of the requirements for a qualified employee
except for the residency requirement of subparagraph (ii) of paragraph
two of this subdivision, which individuals shall be deemed to meet the
residency requirements of subparagraph (ii) of paragraph two of this
subdivision if they reside in New York state.
(c) A qualified employer shall be entitled to a tax credit equal to
(1) seven hundred fifty dollars per month for up to six months for each
qualified employee the employer employs in a full-time job or three
hundred seventy-five dollars per month for up to six months for each
qualified employee the employer employs in a part-time job of at least
twenty hours per week or ten hours per week when the qualified employee
is enrolled in high school full-time, (2) fifteen hundred dollars for
each qualified employee who is employed for at least an additional six
consecutive months by the qualified employer in a full-time job or seven
hundred fifty dollars for each qualified employee who is employed for at
least an additional six consecutive months by the qualified employer in
a part-time job of at least twenty hours per week or ten hours per week
when the qualified employee is enrolled in high school full-time, and
(3) an additional fifteen hundred dollars for each qualified employee
who is employed for at least an additional year after the completion of
the time periods and satisfaction of the conditions set forth in
paragraphs one and two of this subdivision by the qualified employer in
a full-time job or seven hundred fifty dollars for each qualified
employee who is employed for at least an additional year after the
completion of the time periods and satisfaction of the conditions set
forth in paragraphs one and two of this subdivision by the qualified
employer in a part-time job of at least twenty hours per week or ten
hours per week when the qualified employee is enrolled in high school
full time. The tax credits shall be claimed by the qualified employer as
specified in subdivision thirty-six of section two hundred ten-B and
subsection (tt) of section six hundred six of the tax law.
(d) To participate in the program established under this section, an
employer must submit an application (in a form prescribed by the
commissioner) to the commissioner after January first, two thousand
twelve but no later than November thirtieth, two thousand twelve for
program one, after January first, two thousand fourteen but no later
than November thirtieth, two thousand fourteen for program two, after
January first, two thousand fifteen but no later than November
thirtieth, two thousand fifteen for program three, after January first,
two thousand sixteen but no later than November thirtieth, two thousand
sixteen for program four, after January first, two thousand seventeen
but no later than November thirtieth, two thousand seventeen for program
five, after January first, two thousand eighteen but no later than
November thirtieth, two thousand eighteen for program six, after January
first, two thousand nineteen but no later than November thirtieth, two
thousand nineteen for program seven, after January first, two thousand
twenty but no later than November thirtieth, two thousand twenty for
program eight, after January first, two thousand twenty-one but no later
than November thirtieth, two thousand twenty-one for program nine, after
January first, two thousand twenty-two but no later than November
thirtieth, two thousand twenty-two for program ten, after January first,
two thousand twenty-three but no later than November thirtieth, two
thousand twenty-three for program eleven, after January first, two
thousand twenty-four but no later than November thirtieth, two thousand
twenty-four for program twelve, after January first, two thousand
twenty-five but no later than November thirtieth, two thousand
twenty-five for program thirteen, after January first, two thousand
twenty-six but no later than November thirtieth, two thousand twenty-six
for program fourteen, and after January first, two thousand twenty-seven
but no later than November thirtieth, two thousand twenty-seven for
program fifteen. The qualified employees must start their employment on
or after January first, two thousand twelve but no later than December
thirty-first, two thousand twelve for program one, on or after January
first, two thousand fourteen but no later than December thirty-first,
two thousand fourteen for program two, on or after January first, two
thousand fifteen but no later than December thirty-first, two thousand
fifteen for program three, on or after January first, two thousand
sixteen but no later than December thirty-first, two thousand sixteen
for program four, on or after January first, two thousand seventeen but
no later than December thirty-first, two thousand seventeen for program
five, on or after January first, two thousand eighteen but no later than
December thirty-first, two thousand eighteen for program six, on or
after January first, two thousand nineteen but no later than December
thirty-first, two thousand nineteen for program seven, on or after
January first, two thousand twenty but no later than December
thirty-first, two thousand twenty for program eight, on or after January
first, two thousand twenty-one but no later than December thirty-first,
two thousand twenty-one for program nine, on or after January first, two
thousand twenty-two but no later than December thirty-first, two
thousand twenty-two for program ten, on or after January first, two
thousand twenty-three but no later than December thirty-first, two
thousand twenty-three for program eleven, on or after January first, two
thousand twenty-four but no later than December thirty-first, two
thousand twenty-four for program twelve, on or after January first, two
thousand twenty-five but no later than December thirty-first, two
thousand twenty-five for program thirteen, on or after January first,
two thousand twenty-six but no later than December thirty-first, two
thousand twenty-six for program fourteen, and on or after January first,
two thousand twenty-seven but no later than December thirty-first, two
thousand twenty-seven for program fifteen. As part of such application,
an employer must:
(1) agree to allow the department of taxation and finance to share its
tax information with the commissioner. However, any information shared
as a result of this agreement shall not be available for disclosure or
inspection under the state freedom of information law, and
(2) allow the commissioner and its agents and the department of
taxation and finance and its agents access to any and all books and
records of employers the commissioner may require to monitor compliance.
(e) If, after reviewing the application submitted by an employer, the
commissioner determines that such employer is eligible to participate in
the program established under this section, the commissioner shall issue
the employer a preliminary certificate of eligibility that establishes
the employer as a qualified employer. The preliminary certificate of
eligibility shall specify the maximum amount of tax credit that the
employer may be allowed to claim and the program year under which it may
be claimed. The maximum amount of tax credit the employer is allowed to
claim shall be computed as prescribed in subdivision (c) of this
section.
(e-1)(1) To receive an annual final certificate of tax credit, the
qualified employer must annually submit, on or before January
thirty-first of the calendar year subsequent to the payment of wages
paid to an eligible employee, a report to the commissioner, in a form
prescribed by the commissioner. The report must demonstrate that the
employer has satisfied all eligibility requirements and provided all the
information necessary for the commissioner to compute an actual amount
of credit allowed.
(2) After reviewing the report and finding it sufficient, the
commissioner shall issue an annual final certificate of tax credit. Such
certificate shall include, in addition to any other information the
commissioner determines is necessary, the following information:
(i) The name and employer identification number of the qualified
employer;
(ii) The program year for the corresponding credit award;
(iii) The actual amount of credit to which the qualified employer is
entitled for that calendar year or the fiscal year in which the annual
final certificate is issued, which actual amount cannot exceed the
amount of credit listed on the preliminary certificate but may be less
than such amount; and
(iv) A unique certificate number identifying the annual final
certificate of tax credit.
(e-2) In determining the amount of credit for purposes of the annual
final certificate of tax credit, the portion of the credit described in
paragraph one of subdivision (c) of this section shall be allowed for
the calendar year in which the wages are paid to the qualified employee,
the portion of the credit described in paragraph two of subdivision (c)
of this section shall be allowed for the calendar year in which the
additional six consecutive month period ends, and the portion of the
credit described in paragraph three of subdivision (c) of this section
shall be allowed for the calendar year in which the additional year of
consecutive employment ends after the completion of the time periods and
satisfaction of the conditions set forth in paragraphs one and two of
subdivision (c) of this section. If the qualified employer's taxable
year is a calendar year, the employer shall be entitled to claim the
credit as calculated on the annual final certificate of tax credit on
the calendar year return for which the annual final certificate of tax
credit was issued. If the qualified employer's taxable year is a fiscal
year, the employer shall be entitled to claim the credit as calculated
on the annual final certificate of tax credit on the return for the
fiscal year that encompasses the date on which the annual final
certificate of tax credit is issued.
(e-3) The commissioner shall establish guidelines and criteria that
specify requirements for employers to participate in the program
including criteria for certifying qualified employees, and issuing the
preliminary certificate of eligibility and annual final certificate of
tax credit. Such requirements may include the types of industries that
the employers are engaged in. The commissioner may give preference to
employers that are engaged in demand occupations or industries, or in
regional growth sectors, including but not limited to those identified
by the regional economic development councils, such as clean energy,
healthcare, advanced manufacturing and conservation. In addition, the
commissioner shall give preference to employers who offer advancement
and employee benefit packages to the qualified individuals.
(f) The commissioner shall annually publish a report. Such report must
contain the names and addresses of any employer issued a preliminary
certificate of eligibility under this section, the amount of New York
youth works tax credit allowed to the qualified employer as specified on
an annual final certificate of tax credit and any other information as
determined by the commissioner.
Power to administer the workers with disabilities tax credit
program. (a) The commissioner is authorized to establish and administer
the workers with disabilities tax credit program to provide tax
incentives to employers for employing individuals with developmental
disabilities. The commissioner is authorized to allocate up to six
million dollars of tax credits annually.
(b) Definitions. (1) The term "qualified employer" means an employer
that has been certified by the commissioner to participate in the
workers with disabilities tax credit program and that employs one or
more qualified employees.
(2) The term "qualified employee" means an individual:
(i) who is deemed to have a developmental disability, as that term is
defined in subdivision twenty-two of section 1.03 of the mental hygiene
law and who is certified by the education department or the office for
people with developmental disabilities as a person with a disability
which constitutes or results in a substantial handicap to employment;
and
(ii) who is a current employee of a sheltered workshop, which for
purposes of this subdivision is defined as an organization or
environment that employs people with disabilities segregated from
others; or who was unemployed for at least three months prior to January
first, two thousand fifteen; and
(iii) who has worked for the qualified employer in a full-time or
part-time position that pays wages that are equivalent to the wages paid
for similar jobs, with appropriate adjustments for experience and
training, and for which no other employee has been terminated, or where
the employer has not otherwise reduced its workforce by involuntary
terminations with the intention of filling the vacancy by creating a new
hire; and
(iv) who has not worked for an entity related to the qualified
employer in the past twenty-four months; and
(v) is employed in New York at a location in New York state.
(c) A qualified employer shall be entitled to a tax credit. The tax
credits shall be claimed by the qualified employer as specified in
subdivision forty-eight of section two hundred ten-B and subsection (zz)
of section six hundred six of the tax law.
(d) To participate in the workers with disabilities tax credit
program, an employer must submit an application (in a form prescribed by
the commissioner) to the commissioner. The commissioner shall establish
guidelines that specify requirements for employers to participate in the
program including criteria for certifying qualified employees. Any
regulations that the commissioner determines are necessary may be
adopted on an emergency basis notwithstanding anything to the contrary
in section two hundred two of the state administrative procedure act.
Such requirements may include the types of industries that the employers
are engaged in.
(e) If, after reviewing the application submitted by an employer, the
commissioner determines that such employer is eligible to participate in
the workers with disabilities tax credit program, the commissioner shall
issue the employer a preliminary certificate of eligibility that
establishes the employer as a qualified employer. The certificate of
eligibility shall specify the maximum amount of workers with
disabilities tax credit that the employer will be allowed to claim. At
the end of the taxable year, a qualified employer must obtain a final
certificate of eligibility from the commissioner to file with a return
claiming the credit. The final certificate must contain the
certificate's taxable year to which the credit applies, the maximum
amount of the credit allowed, the qualified employer's name and employer
identification number, the employer's business address where the claimed
employees were employed, the social security numbers of claimed
employees and their hire and termination dates, verification that the
claimed employees have met the statutory definition of "qualified
employee", and each employee's total hours worked each quarter, hourly
wage, and full-time or part-time status.
(f) The tax credits provided under this program shall be applicable to
taxable periods beginning before January first, two thousand
twenty-nine.
Power to administer the empire state apprenticeship tax credit
program. (a) The commissioner is authorized to establish and administer
the empire state apprenticeship tax credit program to provide tax
incentives to certified employers for employing qualified apprentices
pursuant to an apprenticeship agreement registered with the department
pursuant to paragraph (d) of subdivision one of section eight hundred
eleven of this chapter. The commissioner is authorized to allocate up to
ten million dollars of tax credits annually, beginning in two thousand
eighteen and ending before two thousand twenty-eight. Any unused annual
allocation of the credit shall be made available in each of the
subsequent years before two thousand twenty-eight.
(b) Definitions. (1) The term "qualified apprenticeship agreement"
means an apprenticeship agreement as defined by section eight hundred
sixteen of this chapter that has been registered with, and approved by,
the commissioner, for a trade other than a construction trade.
(2) The term "qualified employer" means an employer that has or
participates in a commissioner approved registered apprenticeship
program.
(3) The term "construction" means constructing, reconstructing,
altering, maintaining, moving, rehabilitating, repairing, renovating,
fabricating, servicing, or demolition of any building, structure, or
improvement, or component, or relating to the excavation of or other
development or improvement to land.
(4) The term "participating employer" means a qualified employer that
has applied to participate in the empire state apprenticeship tax credit
program and received a preliminary certificate of tax credit from the
commissioner. The preliminary certificate shall state the maximum amount
of the tax credit that the employer may be able to claim if the
applicant becomes a "certified employer."
(5) The term "certified employer" means a qualified employer that has
received a final certificate of eligibility from the commissioner after
the commissioner has determined that the qualified employer has
fulfilled all the requisite eligibility criteria to participate in the
empire state apprenticeship tax credit program established in this
section. The final certificate of eligibility shall state the actual
amount of tax credit that a certified employer is entitled to claim and
the allocation year of the credit.
(6) The term "qualified apprentice" means an individual employed by a
participating employer in a full time position for at least six months
of a calendar year pursuant to a qualified apprenticeship agreement with
a qualified employer. No individual employed by a qualified employer
shall be deemed a qualified apprentice if such individual has not
completed their apprenticeship training program within one year of their
expected date of completion of their program.
(7) The term "disadvantaged youth" means an individual:
(i) who is between the ages of sixteen and twenty-four when the youth
begins the apprenticeship; and
(ii) who is low-income or at-risk, as those terms are defined by the
commissioner.
(8) The term "mentor" means an individual who provides instruction,
guidance, and support to the apprentice on a regular basis throughout
the apprentice's completion of the apprenticeship as the apprentice
seeks employment in the field or industry of the apprenticeship. The
goal of the mentor is to help train the apprentice in his or her trade
and to help the apprentice successfully complete the apprenticeship and
to secure and retain employment.
(c)(1) A certified employer shall be entitled to a tax credit against
income or franchise tax for each qualified apprentice. The base credit
allowed under this program shall be computed as follows:
(A) (1) two thousand dollars for each first year apprentice; (2) three
thousand dollars for each second year apprentice;(3) four thousand
dollars for each third year apprentice; (4) five thousand dollars for
each fourth year apprentice; and (5) six thousand dollars for each fifth
year apprentice. The apprentice's status as a first, second, third,
fourth or fifth year apprentice will be determined on the last day of
the calendar year, or if the apprentice is no longer employed by the
participating employer on the last day of the calendar year, on the last
day of the apprentice's employment with the participating employer; or
(B) in lieu of the credit specified in subparagraph (A) of this
paragraph, for each qualified apprentice who is considered a
disadvantaged youth for each tax year: (1) five thousand dollars for
each first year apprentice; (2) six thousand dollars for each second
year apprentice; and (3) seven thousand dollars for each third, fourth,
or fifth year apprentice. The apprentice's status as a first, second,
third, fourth or fifth year apprentice will be determined on the last
day of the calendar year, or if the apprentice is no longer employed by
the participating employer on the last day of the calendar year, on the
last day of the apprentice's employment with the participating employer.
If a disadvantaged youth begins an apprenticeship before the age of
twenty-five, a certified employer shall be eligible to continue to
receive the tax credit for such youth under this subparagraph until that
apprentice completes the apprenticeship.
(2) If an apprentice has been trained in his or her trade by a mentor
for the entirety of the calendar year, the base credit amounts described
in paragraph one of this subdivision shall be increased by five hundred
dollars.
(3) The certified employer shall not be allowed a tax credit under
this program for any apprentice, if that apprentice is the basis for any
other state tax credit.
(d) Application and approval process. (1) To participate in the
program established under this section, a qualified employer must submit
to the commissioner an application in a form prescribed by the
commissioner. As part of such application, a qualified employer must:
(A) Agree to allow the department of taxation and finance to share its
tax information with the department. However, any information shared as
a result of this agreement shall not be available for disclosure or
inspection under the state freedom of information law.
(B) Allow the department and its agents access to any and all books
and records the department may require to monitor compliance.
(2) After reviewing a qualified employer's completed application and
determining that the qualified employer will meet the eligibility
conditions set forth under this section and any applicable regulations
promulgated by the commissioner, the commissioner may admit the
applicant into the program as a participating employer and provide the
applicant with a preliminary certificate of eligibility establishing the
qualified employer as a participating employer and stating the maximum
amount of credit for which the applicant may be eligible.
(3) To receive a final certificate of tax credit, the participating
employer must annually submit a final report to the commissioner, in a
form prescribed by the commissioner. The report must demonstrate that
the applicant has satisfied all eligibility requirements and provided
all the information necessary for the commissioner to compute an actual
amount of credit allowed for that calendar year, notwithstanding the
fact that a participating employer's taxable year may be a fiscal year,
as defined in subdivision ten of section two hundred eight of the tax
law.
(4) After reviewing the final report and finding it sufficient, the
commissioner shall certify the participating employer as a certified
employer and issue a final certificate of tax credit. Such certificate
shall include, but not be limited to, the following information:
(A) The name and employer identification number of the certified
employer;
(B) The actual amount of credit to which the certified employer is
entitled for that calendar year, which actual amount cannot exceed the
amount of credit listed on the preliminary certificate but may be less
than such amount;
(C) The allocation year of the credit.
(5) If a certified employer's taxable year is a fiscal year, it shall
be entitled to claim the credit on the return for the fiscal year that
includes the last day of the calendar year covered by the final
certificate of tax credit.
(e) The commissioner shall establish guidelines and criteria that
specify requirements for qualified employers to participate in the
program including criteria for certifying qualified apprentices. Any
regulations that the commissioner determines are necessary and are
consistent with the purpose of this article may be adopted on an
emergency basis notwithstanding any provisions to the contrary in the
state administrative procedure act. The commissioner may give preference
to qualified employers that hire and train disadvantaged youth through
qualified apprenticeship agreements, and qualified employers that are
engaged in demand occupations or industries, or in regional growth
sectors, including those identified by the department, such as clean
energy, health care, technology, including software engineering and web
development, advanced manufacturing and conservation. In addition, the
commissioner may give preference to employers that employ apprentices in
newly established apprenticeship programs. The commissioner also may
take the following factors into consideration when evaluating whether to
approve an application in a year subsequent to the year in which a
qualified employer was determined to be a certified employer:
(1) the length of the qualified apprenticeship agreement the employer
has entered into;
(2) how many apprentices have graduated from the apprenticeship
program to which the qualified apprentice employed by the employer
belongs;
(3) how many apprentices in the apprenticeship program the qualified
employer has hired; and
(4) any other factors the commissioner deems relevant.
(f) The commissioner shall annually publish a report. Such report must
contain the names and addresses of any certified employer issued a final
certificate of eligibility under this section, the work location of each
apprentice generating credit, the amount of empire state apprenticeship
tax credit allowed to the certified employer as specified on such final
certificate of eligibility, and the number of each of the first year
apprentices, second year apprentices, third year apprentices, fourth
year apprentices, and fifth year apprentices, and how many of each of
those types are considered disadvantaged youth. The commissioner shall
include in such report the relevant industries of certified employers
and recommendations for legislative or other action to further the
intent and purpose of the empire state apprenticeship tax credit
program.
(g) The commissioner shall promote, publish and disseminate
information concerning the empire state apprenticeship tax credit and
other available funding, particularly targeting industries and fields of
business not currently taking advantage of apprenticeships.
Examination of books and papers. All papers, books, records or
other documents required to be kept by the provisions of this chapter or
of the industrial code shall at all times be open for the inspection of
the commissioner and the officers and employees of the department, and
the persons in charge thereof shall afford every reasonable facility for
their examination and permit copies to be made when required by the
commissioner.
Safety and health standards. 1. Application. Notwithstanding
any other provision in this chapter, a safety or health standard
promulgated under this section shall apply only to employees not covered
by a federal occupational safety or health standard promulgated under
section six of the United States Occupational Safety and Health Act of
1970 (Public Law, 91-596). Provided, however, that no standard
promulgated under this section shall apply to employees of the state,
its political subdivisions and of any other governmental agency or
instrumentality, to whom section twenty-seven-a of this chapter is
applicable.
2. Standards. a. The commissioner shall by rule adopt, amend or repeal
safety and health standards which provide reasonable and adequate
protection to the lives, safety or health of employees and of persons
lawfully frequenting a place of employment.
b. The commissioner may require licenses as a condition of carrying on
any industry, trade, occupation or process which the commissioner finds
contains special elements of danger to the lives, safety or health of
employees to whom this section is applicable or of persons lawfully
frequenting the place of employment of such employees. The commissioner
may establish a schedule of fees for such licenses, require medical
inspection and supervision of persons so employed or applying for such
employment, and may prescribe other appropriate requirements.
c. Any person who may be adversely affected by a standard issued under
this section may at any time within sixty days after the effective date
of such standard, commence a proceeding for judicial review pursuant to
article seventy-eight of the civil practice law and rules.
d. The safety and health standards promulgated under this section
shall for all purposes have the full force and effect of law and shall
be enforced in the same manner as the provisions of this article.
e. Any provision of this chapter and any rule or regulation issued
under the provisions of this chapter relating to the protection of the
safety or health of employees to whom this section is applicable and of
persons lawfully frequenting the place of employment of such persons
which is in effect on the date that this act becomes effective shall be
deemed to be a safety and health standard issued under this section,
with all provisions of this article applicable, and shall continue in
effect until superseded by a corresponding safety and health standard
issued on or after the effective date of this act.
f. The provisions of this section shall supersede any other provision
of this chapter which is inconsistent or in conflict therewith.
3. Regulations. The commissioner may promulgate such regulations as he
shall consider necessary and proper to effectuate the purposes and
provisions of this section.
Safety and health standards for public employees. 1.
Definitions. As used in this section:
* a. "Employer" means the state, any political subdivision of the
state, a public authority or any other governmental agency or
instrumentality thereof.
* NB Effective until enactment of legislation by the state of New
Jersey
* a. "Employer" means the state, any political subdivision of the
state, a public authority, a bi-state authority utilizing its own police
officers or firefighters or any other governmental agency or
instrumentality thereof.
* NB Effective upon enactment of legistlation by the state of New
Jersey
b. "Employees" means persons permitted to work by an employer.
c. "Authorized employee representative" means an employee authorized
by the employees or the designated representative of an employee
organization recognized or certified to represent the employees pursuant
to article fourteen of the civil service law.
* d. "Public employee" means any employee of the state, any political
subdivision of the state, a public authority or any other governmental
agency or instrumentality.
* NB Effective until enactment of legislation by the state of New
Jersey
* d. "Public employee" means any employee of the state, any political
subdivision of the state, a public authority, a bi-state authority
utilizing its own police officers or firefighters or any other
governmental agency or instrumentality.
* NB Effective upon enactment of legislation by the state of New
Jersey
e. "System components" means life safety harness, belts, ascending
devices, carabiners, descent control devices, rope grab devices and
snap-links.
2. Application. A safety or health standard promulgated under the
provisions of this section shall apply to every public employee and the
commissioner shall have exclusive authority to enforce such standard in
accordance with the provisions of this chapter, notwithstanding any
other safety or health standard or any other provision in this chapter
or in any other general, local or special law or charter. However, this
section shall not supersede any inconsistent provision of the education
law, as applied to any school building certified by the commissioner of
education as being in compliance with such law, and the regulations
promulgated pursuant thereto, on the effective date of this section, or
as applied to any application for certification which is pending before
the effective date of this section.
3. Duties. a. Every employer shall: (1) furnish to each of its
employees, employment and a place of employment which are free from
recognized hazards that are causing or are likely to cause death or
serious physical harm to its employees and which will provide reasonable
and adequate protection to the lives, safety or health of its employees;
and (2) comply with the safety and health standards promulgated under
this section. In applying this paragraph, fundamental distinctions
between private and public employment shall be recognized.
b. Every employee shall comply with the safety and health standards
and all rules, regulations and orders issued pursuant to this section
which are applicable to his own actions and conduct.
c. The state shall promulgate a plan for the development and
enforcement of occupational safety and health standards with respect to
public employers and employees, in accordance with section eighteen (b)
of the United States Occupational Safety and Health Act of 1970 (Public
Law 91-596) which provides: "(b) Any State which, at any time, desires
to assume responsibility for development and enforcement therein of
occupational safety and health standards relating to any occupational
safety or health issue with respect to which a Federal standard has been
promulgated under section 6 shall submit a State plan for the
development of such standards and their enforcement."
4. Safety and health standards. a. The commissioner shall by rule
adopt all safety and health standards promulgated under the United
States Occupational Safety and Health Act of 1970 (Public Law, 91-596)
which are in effect on the effective date of this section, in order to
provide reasonable and adequate protection to the lives, safety and
health of public employees and shall promulgate and repeal such rules
and regulations as may be necessary to conform to the standards
established pursuant to such act or pursuant to paragraph b of this
subdivision.
b. Notwithstanding the provisions of paragraph a of this subdivision,
the commissioner, in consultation with the state occupational safety and
health hazard abatement board, shall promulgate rules and regulations
recommended to him by such board which establish standards whenever such
board finds (i) that no federal standard exists for the particular
condition being addressed and that such a standard is necessary for the
protection of the public employees at risk, or (ii) a federal standard
exists, but conditions in public workplaces in this state require a
different standard, and such state standard will be at least as
effective in providing safe and healthful places of employment as the
federal standard.
c. Except for an employer located in a city with a population of over
one million, any employer who employs a firefighter determined to be at
risk of entrapment at elevations pursuant to regulations promulgated by
the commissioner, shall provide emergency escape systems for use by such
firefighter. The commissioner shall by rule identify the codes,
standards and recommended practices of the National Fire Protection
Association and other appropriate standards approved by the commissioner
as are appropriate to the nature of the risk to which the firefighter
shall be exposed and shall, at a minimum, include in such rule language
requiring employers to (1) identify whether firefighters employed by
them would be exposed to the hazard of entrapment at elevated surfaces;
(2) identify those firefighters who would be exposed to the hazard; and
(3) determine the appropriate emergency escape systems to address the
hazard. Such emergency escape systems shall be adequate to protect the
health and safety of the firefighter. The employer shall ensure that the
firefighter is instructed in the proper use of the emergency escape
systems. As used in this subdivision, the term "entrapment at
elevations" shall mean a situation where a fire or other emergency
conditions require a firefighter inside a structure to immediately exit
the structure but where such conditions make the normal route of exit
unusable, thereby requiring the firefighter to exit the structure from
an opening that is not designed as an exit and is above the ground floor
or at an elevation above the surrounding terrain that would reasonably
be expected to cause injury to a firefighter exiting by means of this
opening without any emergency escape systems. As used in this
subdivision, the term "emergency escape system" shall mean safety ropes
and system components and any other system that (1) is compliant with
the codes, standards and recommended practices of the National Fire
Protection Association or other appropriate standard identified by the
commissioner through regulation, as a means of emergency self-rescue
from an above grade, immediately hazardous environment, (2) has been
certified by a nationally recognized safety testing and certification
organization, and (3) the commissioner has recognized through
regulation.
In order to ensure the adequacy of the emergency escape systems, the
employer must routinely inspect and ensure that:
(1) Existing emergency escape systems meet the codes, standards and
recommended practices adopted by the commissioner.
(2) Existing emergency escape systems still perform their function and
to identify any of their limitations such as but not limited to:
(i) Checking the labels or stamps on the equipment; and
(ii) Checking any documentation or equipment specifications; and
(iii) Contacting the supplier or the approval agency;
(3) Firefighters are informed of the limitations of emergency escape
systems;
(4) Firefighters are not allowed or required to use any emergency
escape systems beyond their limitations;
(5) Existing and new emergency escape systems have no visible defects
that limit their safe use;
(6) Emergency escape systems are used, cleaned, maintained and stored
according to manufacturer's instructions;
(7) The firefighter is instructed in identifying to the employer any
defects that the firefighter may find in emergency escape systems; and
(8) Any identified defects are corrected or immediate action is taken
by the employer to eliminate the use of this equipment.
d. Any person who may be adversely affected by a standard issued under
this section may, within thirty days after the effective date of such
standard, commence a proceeding for judicial review pursuant to article
seventy-eight of the civil practice law and rules.
5. Inspections. a. Any employee or representative of employees who
believes that a violation of a safety or health standard exists, or that
an imminent danger exists, may request an inspection by giving notice to
the commissioner of such violation or danger. Such notice and request
shall be in writing, shall set forth with reasonable particularity the
grounds for the notice, shall be signed by such employee or
representative of employees, and a copy shall be provided by the
commissioner to the employer or the person in charge no later than the
time of inspection, except that on the request of the person giving such
notice, his name and the names of individual employees or
representatives of employees shall be withheld. Such inspections shall
be made forthwith.
b. A representative of the employer and an authorized employee
representative shall be given the opportunity to accompany the
commissioner during an inspection for the purpose of aiding such
inspection. Where there is no authorized employee representative, the
commissioner shall consult with a reasonable number of employees
concerning matters of safety and health in the workplace.
c. The authority of the commissioner to inspect a premises pursuant to
such an employee complaint shall not be limited to the alleged violation
contained in such complaint. The commissioner may inspect any other area
of the premises in which he has reason to believe that a violation of
this section exists.
d. No employee who accompanies the commissioner on an inspection shall
suffer any reduction in wages.
e. The commissioner may, upon his own initiative, conduct an
inspection of any premises occupied by a public employer if he has
reason to believe that a violation of this section has occurred or if he
has a general administrative plan for the enforcement of this section,
including general schedule inspections, which provide a rational
administrative basis for such inspecting. Within ninety days of
enactment of this paragraph the commissioner shall publish the general
administrative plan and shall adopt regulations on the conduct of
inspections in locker rooms and other areas involving the personal
property and privacy rights of public employees.
f. Any information obtained by the commissioner under this section
shall be obtained with a minimum burden upon the employers.
5-a. Notwithstanding any other provisions of law, when a request for
an inspection has been made in a situation where there is an allegation
of an imminent danger such that an employee would be subjecting himself
or herself to serious injury or death because of the hazardous condition
in the workplace, the inspection shall be given the highest priority by
the department and shall be carried out immediately.
6. Enforcement procedures. a. If the commissioner determines that an
employer has violated a provision of this section, or a safety or health
standard or regulation promulgated under this section, he or she shall
with reasonable promptness issue to the employer an order to comply
which shall describe particularly the nature of the violation including
a reference to the provision of this section, standard, regulation or
order alleged to have been violated, shall fix a reasonable time for
compliance and may establish the penalty to be assessed for failure to
correct the violation by the time fixed for compliance. An employer who
fails to correct a non-serious violation by the time fixed for
compliance may be assessed a civil penalty of up to fifty dollars per
day until the violation is corrected. An employer who fails to correct a
serious violation by the time fixed for compliance may be assessed a
civil penalty of up to two hundred dollars per day until the violation
is corrected. Pursuant to section 18(k) of the United States
Occupational Safety and Health Act of 1970 (Public Law, 91-596), a
serious violation shall be deemed to exist in a place of employment if
there is a substantial probability that death or serious physical harm
could result from a condition which exists, or from one or more
practices, means, methods, operations, or processes which have been
adopted or are in use, in such place of employment unless the employer
did not, and could not with the exercise of reasonable diligence, know
of the presence of the violation. A non-serious violation shall be
defined as any violation that does not fall under the definition of
serious violation. The commissioner shall not assess a penalty against
an employer for failure to correct a violation of a standard which is
the subject of an application for a temporary order granting a variance
or a violation which is the subject of a petition to modify an order to
comply, provided however, that upon issuance by the commissioner of a
determination denying such variance or petition to modify, or upon
expiration of a temporary variance or modified compliance period, the
time fixed for compliance shall recommence and the employer become
liable for the penalties provided herein.
b. Where the commissioner issues to an employer an order to comply,
the employer shall post such order or a copy thereof in a conspicuous
place at or near each place of violation cited in the order, where it is
clearly visible to affected employees. The commissioner shall make such
order available to employee representatives.
c. Any employer, or other party affected by a determination of the
industrial commissioner issued pursuant to this section may petition the
industrial board of appeals for review of such determination in
accordance with section one hundred one of this chapter. Judicial review
of the decision of the industrial board of appeals may be obtained by
any party affected by such decision by commencing a proceeding pursuant
to article seventy-eight of the civil practice law and rules within
sixty days after such decision is issued.
d. If the time for compliance with an order of the commissioner issued
pursuant to this section has elapsed, and the employer has not complied
with the provisions of the order, the commissioner shall seek judicial
enforcement of such order by commencing a proceeding pursuant to article
seventy-eight of the civil practice law and rules. Where an employer has
complied with an order in all respects other than the payment of a
penalty imposed pursuant to this subdivision, the commissioner may file
with the county clerk of the county where the employer has its place of
business the order of the commissioner continuing the amount of civil
penalty 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 or decision may be enforced by and 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.
6-a. Form of complaints. The department shall establish a dedicated
webpage through which any public employee under the jurisdiction of this
section may report alleged or believed violations of any state law,
regulation, rule or guidance related to occupational health and safety
involving a communicable disease, including but not limited to the novel
coronavirus COVID-19. Such webpage shall allow individuals to report
alleged or believed violations anonymously.
7. Injunction proceedings. a. The supreme court of the state shall
have jurisdiction, upon petition of the industrial commissioner,
pursuant to the civil practice law and rules to restrain any conditions
or practices in any place of public employment which are such that a
danger exists which could reasonably be expected to cause death or
serious physical harm immediately or before the imminence of such danger
can be eliminated through the abatement procedures otherwise provided
for by this section. Such proceeding shall be brought in the county in
which the violation is alleged to exist. Any order issued under this
section may require such steps to be taken as may be necessary to avoid,
correct or remove such imminent danger and prohibit the employment or
presence of any individual in locations or under conditions where such
imminent danger exists, except individuals whose presence is necessary
to avoid, correct, or remove such imminent danger or to maintain the
capacity of a continuous process operation to resume normal operations
without a complete cessation of operations, or where a cessation of
operations is necessary, to permit such to be accomplished in a safe and
orderly manner. The employer may contest such order pursuant to the
civil practice law and rules.
b. Whenever and as soon as an inspector concludes that conditions or
practices described in paragraph a of this subdivision exist in any
place of public employment, he shall inform the affected employees and
employers of the danger and that he is recommending to the industrial
commissioner that relief be sought.
c. If the industrial commissioner fails to seek relief under this
section within forty-eight hours of being notified of such condition,
any employee who may be injured by reason of such failure, or the
authorized employee representative of such employees, may seek
injunctive relief as provided in paragraph a of this subdivision.
8. Variances. a. Any employer may apply to the commissioner for a
temporary order granting a variance from a standard or any provision
thereof promulgated under this section. Such temporary order shall be
granted only if the employer files an application which meets the
requirements of paragraph b of this subdivision and establishes that (1)
he is unable to comply with a standard by its effective date because of
unavailability of professional or technical personnel or of materials
and equipment needed to come into compliance with the standard or
because necessary construction or alteration of facilities cannot be
completed by the effective date, (2) he is taking all available steps to
safeguard employees against the hazards covered by the standard, and (3)
he has an effective program for coming into compliance with the standard
as quickly as practicable. Any temporary order issued under this
subdivision shall prescribe the practices, means, methods, operations
and processes which the employer must adopt and use while the order is
in effect and state in detail his program for coming into compliance
with the standard. Such a temporary order may be granted only after
notice to employees and an opportunity for a hearing, provided the
commissioner may issue one interim order to be effective until a
decision is made on the basis of the hearing. No temporary order may be
in effect for longer than the period needed by the employer to achieve
compliance with the standard or one year, whichever is shorter, except
that such an order may be renewed not more than twice so long as the
requirements of this subdivision are met and if an application for
renewal is filed at least ninety days prior to the expiration date of
the order. No interim renewal of an order may remain in effect longer
than one hundred and eighty days.
b. An application for a temporary variance order shall contain: (1) a
specification of the standard or portion thereof from which the employer
or owner seeks a variance; (2) a representation by the employer,
supported by representations from qualified persons who have firsthand
knowledge of the facts represented, that he is unable to comply with the
standard or portion thereof and a detailed statement of the reasons
therefor; (3) a statement of the steps he has taken and will take, with
specific dates, to protect employees against the hazard covered by the
standard; (4) a statement of when he expects to be able to comply with
the standard and what steps he has taken and what steps he will take,
with dates specified, to come into compliance with the standard; and (5)
a certification that he has informed his employees of the application by
giving a copy thereof to their authorized representative, posting a
statement giving a summary of the application and specifying where a
copy may be examined at the place or places where notices to employees
are normally posted, and by other appropriate means. A description of
how employees have been informed shall be contained in the
certification. The information to employees shall also inform them of
their right to petition the commissioner for a hearing. The commissioner
is also authorized to grant a variance from any standard or portion
thereof whenever he determines that such variance is necessary to permit
an employer to participate in an experiment approved by him designed to
demonstrate or validate new and improved techniques to safeguard the
health or safety of workers.
c. Any affected employer may apply to the commissioner for a rule or
order for a variance from a standard promulgated under this section.
Affected employees shall be given notice of each such application and an
opportunity to participate in a hearing. The commissioner shall issue
such rule or order if he determines on the record, after opportunity for
an inspection where appropriate and a hearing, that the proponent of the
variance has demonstrated by a preponderance of the evidence that the
conditions, practices, means, methods, operations or processes used or
proposed to be used by an employer will provide employment and places of
employment which are as safe and healthful as those which would prevail
if he complied with the standard. The rule or order so issued shall
prescribe the conditions the employer must maintain, and the practices,
means, methods, operations and processes which he must adopt and utilize
to the extent they differ from the standard in question. Such a rule or
order may be modified or revoked upon application by an employer, any
employee or employee representative, or by the commissioner on his own
motion, in the manner prescribed for its issuance under this subdivision
at any time after six months from its issuance.
d. Any person, who may be adversely affected by a rule or order issued
under this subdivision may challenge the validity or applicability of
such rule or order by commencing, within sixty days, a proceeding
pursuant to article seventy-eight of the civil practice law and rules.
9. Recordkeeping. a. In accordance with the commissioner's
regulations, each employer shall make, keep and preserve, and make
available to the commissioner such records regarding his activities
relating to this section as the commissioner deems necessary or
appropriate for developing information regarding the causes and
prevention of occupational accidents and illness. Such regulations may
include provisions requiring employers to conduct periodic inspections.
The commissioner shall also issue regulations requiring that employers,
through posting of notices, training or other appropriate means, keep
their employees informed of their protections.
b. The commissioner shall prescribe regulations requiring employers to
maintain accurate records and to make public periodic reports of
work-related deaths, and injuries and illnesses other than minor
injuries requiring only first aid treatment and which do not involve
lost time from work, medical treatment, loss of consciousness,
restriction of work or motion or transfer to another job.
c. The commissioner shall issue regulations requiring employers to
maintain accurate records of employee exposures to potentially toxic
materials or harmful physical agents which the regulation requires to be
monitored or measured. Such regulations shall provide employees or their
representatives with an opportunity to observe such monitoring or
measuring and have access to the records thereof. Such regulations shall
also make appropriate provisions for each employee or former employee to
have access to such records as will indicate his own exposure to toxic
materials or harmful physical agents. Each employer shall promptly
notify any employee who has been or is being exposed to toxic materials
or harmful physical agents in concentrations or at levels which exceed
those prescribed by any safety and health standard promulgated under
this section, and shall inform any employee who is being exposed of the
corrective action being taken and the time limit for correction.
10. Discrimination against employees. a. No person shall discharge, or
otherwise discipline, or in any manner discriminate against any employee
because such employee has filed any complaint or instituted or caused to
be instituted any proceeding under or related to this section or has
testified or is about to testify in any such proceeding, or because of
the exercise by such employee on behalf of himself or others of any
right afforded by this section.
b. Any employee who believes that he has been discharged, disciplined,
or otherwise discriminated against by any person in violation of this
subdivision may, within thirty days after such violation occurs, file a
complaint with the commissioner alleging such discrimination. Upon
receipt of such complaint, the commissioner shall cause such
investigation to be made as he deems appropriate, and shall, if
requested withhold the name of the complainant from the employer. If
upon such investigation, the commissioner determines that the provisions
of this subdivision have been violated, he shall request the attorney
general to bring an action in the supreme court against the person or
persons alleged to have violated the provisions of this subdivision. In
any such action the supreme court shall have jurisdiction, for cause
shown, to restrain violations of this subdivision and order all
appropriate relief, including rehiring or reinstatement of the employee
to his former position with all back pay.
c. Within ninety days of this receipt of a complaint filed under this
subdivision the commissioner shall notify the complainant and his
representative by registered mail of his determination.
d. Nothing in this subdivision shall be deemed to diminish the rights
of any employee under any law, rule or regulation or under any
collective bargaining agreement.
11. Wherever notice is required to be given to an authorized employee
representative under this section, notice shall be given to all
organizations representing employees at the worksite in question. Notice
should be given to the office of the employee representative as well as
to the representative at the worksite. Representatives who wish this
dual notice must inform the department of the person who is to be
notified. Such notice shall be in writing unless the inspection is being
conducted under subdivision five-a of this section.
12. The commissioner may initiate voluntary compliance programs,
including, but not limited to, a public employee consultation program to
provide on-site consultation to public employers desiring such services
as an adjunct to the commissioner's inspections pursuant to this
section. Whenever an on-site consultation is performed under this
subdivision, a report shall be issued of any findings of noncompliance
with the regulations promulgated under this section and the report shall
be made public.
13. Regulations. The commissioner may promulgate such procedural
regulations as he shall consider necessary and proper to effectuate the
purposes and provisions of this section.
14. A commission to report on the operation and effect of this section
is hereby established. a. Such commission shall examine the incidence of
work related injuries, the incidence of injuries to the public, and the
effect of this section upon insurance costs of public employers. Such
commission shall be empowered to recommend additional or corrective
legislation to advance the purposes of this section.
b. Such commission shall be composed of three members, one of whom
shall be chosen by the speaker of the assembly, one of whom shall be
chosen by the temporary president of the senate, and one of whom shall
be chosen by the governor.
c. Members of the commission shall serve without compensation, except
for expenses reasonably incurred in the discharge of their duties under
this subdivision.
d. The commission shall issue an interim report to the legislature and
the governor, which report shall be issued one year after the effective
date of this section. A final report shall be issued two years after
such effective date.
15. New York state occupational safety and health hazard abatement
board; creation and procedure. a. The New York state occupational safety
and health hazard abatement board is hereby created to have and exercise
the powers, duties and prerogatives provided by the provisions of this
subdivision.
b. The membership of the board shall consist of five persons appointed
by the governor of whom one shall be upon the recommendation of the
temporary president of the senate, one upon the recommendation of the
speaker of the assembly, and one upon the recommendation of the state
comptroller. Members shall serve at the pleasure of the governor, and
the governor may replace any member in accordance with the provisions
contained herein for the appointment of members.
The governor shall designate one of the members to serve as chairman.
The board shall act by a majority vote of its members, and a quorum to
conduct business shall consist of three members. Any determination of
the board shall be evidenced by a certification thereof executed by all
the members present and voting. Each member of the board shall be
entitled to designate a representative to attend meetings of the board
in his place, and to vote or otherwise act on his behalf in his absence.
Such representative shall not be authorized to delegate any of his
duties or functions to any other person. Notice of such designation
shall be furnished in writing to the board by the designating member. A
representative shall serve at the pleasure of the designating member
during the member's term of office.
c. No elected public officer or public employee shall be eligible for
appointment as a member of the board.
d. The members of the board and their representatives shall serve
without salary or per diem allowance but shall be entitled to
reimbursement for actual and necessary expenses incurred in the
performance of their official duties pursuant to this section, provided
however that such members and representatives are not, at the time such
expenses are incurred, public employees or public officers otherwise
entitled to such reimbursement.
e. The board shall meet at least four times a year with at least one
meeting in each calendar quarter. The chairman shall designate the days
of meeting, and shall provide each member with at least three weeks
written notice of the date of such meeting.
f. Staff services for the board shall be performed insofar as
practicable, by personnel of the department of labor. Additional
professional and technical services may be secured from other state
departments or agencies, with the consent of the head of such department
or agency.
16. New York state occupational safety and health hazard abatement
board; powers and duties. (A) a. The board created pursuant to
subdivision fifteen of this section shall have the power, and it shall
be its duty to receive, review and act upon applications for funding of
capital projects designed to abate occupational safety and health
hazards which have been found by the commissioner to violate the
provisions of this section or which have been identified in a report of
the public employee consultation program. The board shall fund
seventy-five percent of the cost of any capital abatement project
necessary to comply with an order issued by the commissioner pursuant to
the provisions of this section or with a recommendation for hazard
abatement issued by the public employee consultation program.
b. In determining the order in which applicants shall receive grants
from the fund, and the amount of such funding, the board shall consider
the following factors:
(1) the degree of possible physical harm which the hazard to be abated
could inflict on the public employees and other citizens at risk;
(2) the imminent nature of the possible infliction of harm;
(3) the number of public employees and other citizens at risk;
(B) a. The board shall have the power, and it shall be its duty to
receive, review, and act upon applications for funding for programs
designed to provide occupational safety and health training and
education for employees pursuant to the provisions of article
twenty-nine of this chapter.
b. The board shall, by the promulgation of rules and regulations,
establish procedures and criteria that are necessary and appropriate to
carry out the provisions of article twenty-nine of this chapter, which
shall include criteria for the evaluation and selection of applications
for grants and the auditing of performance thereunder.
(C) a. The board may require as part of such applications made
pursuant to the provisions of this subdivision such information as it
deems necessary and shall act upon such applications within a reasonable
time. The board shall furnish the state budget director, state
industrial commissioner, state comptroller, temporary president of the
senate and speaker of the assembly with a copy of each application
within three days following receipt thereof by the board.
b. That a employer has applied for funds pursuant to the provisions of
this subdivision shall not relieve that employer of the obligation to
correct any violation of this section by variance or other means.
(D) a. The board, in the formulation of standards pursuant to
paragraph b of subdivision four of this section, shall have the power to
conduct public hearings, administer oaths and take sworn or unsworn
testimony at such hearings. The board may, by subpoena issued by the
chair, compel the attendance of witnesses and the production of all
books, records and other evidence relative to any matter under inquiry
in the formulation of such standards.
b. The board may contract with occupational health professionals and
industrial safety engineers to provide expert assistance in the
formulation of standards pursuant to paragraph b of subdivision four of
this section.
c. The board is authorized, after public hearings, to recommend
standards to the commissioner. The board, in addition to acting on its
own initiative, shall review, consider and make recommendations
regarding requests for new standards presented to such board by public
employers, employees or authorized employee representatives.
Duty of public employers to develop and implement programs to
prevent workplace violence. 1. Purpose. The purpose of this section is
to ensure that the risk of workplace assaults and homicides is evaluated
by affected public employers and their employees and that such employers
design and implement workplace violence protection programs to prevent
and minimize the hazard of workplace violence to public employees.
2. Definitions. For the purposes of this section:
a. "Employer" means: (1) the state; (2) a political subdivision of the
state; (3) a public authority, a public benefit corporation, or any
other governmental agency or instrumentality thereof; and (4) an
authorized agency as defined in paragraph (a) of subdivision ten of
section three hundred seventy-one of the social services law that
accepts children adjudicated delinquent under article three of the
family court act.
b. "Employee" means a public employee working for an employer.
c. "Workplace" means any location away from an employee's domicile,
permanent or temporary, where an employee performs any work-related duty
in the course of his or her employment by an employer.
d. "Supervisor" means any person within an employer's organization who
has the authority to direct and control the work performance of an
employee, or who has the authority to take corrective action regarding
the violation of a law, rule or regulation to which an employee submits
written notice.
e. "Retaliatory action" means the discharge, suspension, demotion,
penalization, or discrimination against any employee, or other adverse
employment action taken against an employee in the terms and conditions
of employment.
3. Risk evaluation and determination. Every employer shall evaluate
its workplace or workplaces to determine the presence of factors or
situations in such workplace or workplaces that might place employees at
risk of occupational assaults and homicides. Examples of such factors
shall include, but not limited to:
a. working in public settings (e.g., social services or other
governmental workers, police officers, firefighters, teachers, public
transportation drivers, health care workers, and service workers);
b. working late night or early morning hours;
c. exchanging money with the public;
d. working alone or in small numbers;
e. uncontrolled access to the workplace; and
f. areas of previous security problems.
4. Written workplace violence prevention program. Every employer with
at least twenty full time permanent employees shall develop and
implement a written workplace violence prevention program for its
workplace or workplaces that includes the following:
a. a list of the risk factors identified in subdivision three of this
section that are present in such workplace or workplaces;
b. the methods the employer will use to prevent incidents of
occupational assaults and homicides at such workplace or workplaces,
including but not limited to the following:
(1) making high-risk areas more visible to more people;
(2) installing good external lighting;
(3) using drop safes or other methods to minimize cash on hand;
(4) posting signs stating that limited cash is on hand;
(5) providing training in conflict resolution and nonviolent
self-defense responses; and
(6) establishing and implementing reporting systems for incidents of
aggressive behavior.
5. Employee information and training. a. Every employer with at least
twenty permanent full time employees shall make the written workplace
violence prevention program available, upon request, to its employees,
their designated representatives and the department.
b. Every employer shall provide its employees with the following
information and training on the risks of occupational assaults and
homicides in their workplace or workplaces at the time of their initial
assignment and annually thereafter:
(1) employees shall be informed of the requirements of this section,
the risk factors in their workplace or workplaces, and the location and
availability of the written workplace violence prevention program
required by this section; and
(2) employee training shall include at least: (a) the measures
employees can take to protect themselves from such risks, including
specific procedures the employer has implemented to protect employees,
such as appropriate work practices, emergency procedures, use of
security alarms and other devices, and (b) the details of the written
workplace violence prevention program developed by the employer.
6. Application. a. Any employee or representative of employees who
believes that a serious violation of a workplace violence protection
program exists or that an imminent danger exists shall bring such matter
to the attention of a supervisor in the form of a written notice and
shall afford the employer a reasonable opportunity to correct such
activity, policy or practice. This referral shall not apply where
imminent danger or threat exists to the safety of a specific employee or
to the general health of a specific patient and the employee reasonably
believes in good faith that reporting to a supervisor would not result
in corrective action.
b. If following a referral of such matter to the employee's
supervisor's attention and after a reasonable opportunity to correct
such activity, policy or practice the matter has not been resolved and
the employee or representative of employees still believes that a
violation of a workplace violence prevention program remains, or that an
imminent danger exists, such employee or representative of employees may
request an inspection by giving notice to the commissioner of such
violation or danger. Such notice and request shall be in writing, shall
set forth with reasonable particularity the grounds for the notice,
shall be signed by such employee or representative of employees, and a
copy shall be provided by the commissioner to the employer or the person
in charge no later than the time of inspection, except that on the
request of the person giving such notice, such person's name and the
names of individual employees or representatives of employees shall be
withheld. Such inspection shall be made forthwith.
c. A representative of the employer and an authorized employee
representative shall be given the opportunity to accompany the
commissioner during an inspection for the purpose of aiding such
inspection. Where there is no authorized employee representative, the
commissioner shall consult with a reasonable number of employees
concerning matters of safety in the workplace.
d. The authority of the commissioner to inspect a premises pursuant to
such an employee complaint shall not be limited to the alleged violation
contained in such complaint. The commissioner may inspect any other area
of the premises in which he or she has reason to believe that a serious
violation of this section exists.
d-1. No employee who accompanies the commissioner on an inspection,
participates in a risk evaluation and determination inspection, or
participates in an annual program review shall suffer any reduction in
wages.
e. No employer shall take retaliatory action against any employee
because the employee does any of the following:
(1) makes an application pursuant to paragraph a of this subdivision;
(2) requests an inspection as authorized in paragraph b of this
subdivision;
(3) accompanies the commissioner as authorized in paragraph c of this
subdivision;
f. The commissioner may, upon his or her own initiative, conduct an
inspection of any premises occupied by an employer if he or she has
reason to believe that a violation of this section has occurred or if he
or she has a general administrative plan for the enforcement of this
section, including a general schedule of inspections, which provide a
rational administrative basis for such inspecting. Within one hundred
twenty days of the effective date of this paragraph the commissioner
shall adopt rules and regulations implementing the provisions of this
section.
g. Any information obtained by the commissioner pursuant to this
subdivision shall be obtained with a minimum burden upon the employers.
h. When a request for an inspection has been made in a situation where
there is an allegation of an imminent danger such that an employee would
be subjecting himself or herself to serious injury or death because of
the hazardous condition in the workplace, the inspection shall be given
the highest priority by the department and shall be carried out
immediately.
Preparation of public employers for state disaster emergencies
involving public health. 1. Definitions. For the purposes of this
section:
a. "Personal protective equipment" shall mean all equipment worn to
minimize exposure to hazards, including gloves, masks, face shields,
foot and eye protection, protective hearing devices, respirators, hard
hats, and disposable gowns and aprons.
b. "Public employer" or "employer" shall mean the state of New York, a
county, city, town, village or any other political subdivision or civil
division of the state, a public authority, commission or public benefit
corporation, or any other public corporation, agency, instrumentality or
unit of government which exercises governmental power under the laws of
this state, provided, however, that this subdivision shall not include
any employer as defined in section twenty-eight hundred one-a of the
education law.
c. "Essential" shall refer to a designation made that a public
employee is required to be physically present at a work site to perform
his or her job. Such designation may be changed at any time in the sole
discretion of the employer.
d. "Non-essential" shall refer to a designation made that a public
employee is not required to be physically present at a work site to
perform his or her job. Such designation may be changed at any time in
the sole discretion of the employer.
e. "Communicable disease" shall mean an illness caused by an
infectious agent or its toxins that occurs through the direct or
indirect transmission of the infectious agent or its products from an
infected individual.
f. "Retaliatory action" shall mean the discharge, suspension,
demotion, or discrimination against any employee, or other adverse
employment action taken against an employee in the terms and conditions
of employment.
2. Each public employer in the state of New York shall prepare a plan
for the continuation of operations in the event that the governor
declares a state disaster emergency involving a communicable disease.
Such plans shall follow the provisions for review and publication as
prescribed in subdivision four of this section.
3. The operations plan required by this section shall include, but not
be limited to:
a. A list and description of the types of positions considered
essential in the event of a state-ordered reduction of in-person
workforce.
b. A description of protocols the employer will follow for
non-essential employees to telecommute including, but not limited to,
facilitating or requesting the procurement, distribution, downloading
and installation of any needed technology, including software, data, and
the transferring of office phone lines to work or personal cell phones
as practicable or applicable to the workplace, and may include devices.
c. A description of how the employer will, to the extent possible,
stagger work shifts of essential employees in order to reduce
overcrowding on public transportation systems and at worksites.
d. A description of the protocol the employer will implement in order
to procure the appropriate personal protective equipment for essential
employees, based upon the various tasks and needs of such employees in a
quantity sufficient to provide personal protective equipment to each
essential employee during any given work shift. Such description shall
also include a plan for storage of such equipment to prevent degradation
and permit immediate access in the event of an emergency declaration.
e. A description of the protocol in the event an employee is exposed
to a known case of the communicable disease that is the subject of the
state disaster emergency, exhibits symptoms of such disease, or tests
positive for such disease in order to prevent the spread or contraction
of such disease in the workplace. Such protocol shall also detail
actions to be taken to immediately and thoroughly disinfect the work
area of any employee known or suspected to be infected with the
communicable disease as well as any common area surface and shared
equipment such employee may have touched, and the employer policy on
available leave in the event of the need of an employee to receive
testing, treatment, isolation, or quarantine. Such protocol shall not
involve any action that would violate any existing federal, state, or
local law, including regarding sick leave or health information privacy.
f. A protocol for documenting hours and work locations, including
off-site visits, for essential employees. Such protocol shall be
designed only to aid in tracking of the disease and to identify the
population of exposed employees in order to facilitate the provision of
any benefits which may be available to certain employees on that basis.
g. A protocol for how the public employer will work with such
employer's locality to identify sites for emergency housing for
essential employees in order to further contain the spread of the
communicable disease that is the subject of the declared emergency, to
the extent applicable to the needs of the workplace.
h. Any other requirements determined by the department of health such
as contract tracing or testing, social distancing, hand hygiene and
disinfectant, or mask wearing.
4. Once drafted, each public employer shall present the plan described
in this section to all applicable duly recognized or certified
representatives of the employer's employees, who shall then be granted
an opportunity to review the plan and make recommendations, if any,
provided that nothing shall preclude such representatives from making
such recommendations prior to the draft being completed. The employer
must consider and respond to such recommendations in writing within a
reasonable timeframe. A copy of the final version of such plan shall
then be published in a clear and conspicuous location, and in the
employee handbook, to the extent that the employer provides such
handbook to its employees, and in a location accessible on either the
employer's website or on the internet accessible by employees. No
employer shall take retaliatory action or otherwise discriminate against
any employee for making recommendations regarding the content of the
plan.
5. The department shall establish procedures to allow for public
employees to contact and inform the department of any alleged violations
of any of the provisions described in this section.
6. Nothing in this section shall be deemed to impede, infringe,
diminish or impair the rights of a public employee or employer under any
law, rule, regulation or collectively negotiated agreement, or the
rights and benefits which accrue to employees through collective
bargaining agreements, or otherwise diminish the integrity of the
existing collective bargaining relationship.
Workplace safety committees. 1. For the purposes of this
section, the following terms shall have the following meanings:
(a) "Employer" shall mean any person, entity, business, corporation,
partnership, limited liability company, or an association employing at
least ten employees. The term shall not include the state, any political
subdivision of the state, a public authority, or any other governmental
agency or instrumentality.
(b) "Employee" shall include all employees in the state, except for
employees of the state, any political subdivision of the state, a public
authority, or any other governmental agency or instrumentality.
2. Employers shall permit employees to establish and administer a
joint labor-management workplace safety committee, but not more than one
committee per worksite, provided however that an employer that already
has a workplace safety committee that is otherwise consistent with the
requirements of this section, shall be exempted from creating an
additional safety committee under this section. Each workplace safety
committee shall be composed of employee and employer designees, provided
at least two-thirds are non-supervisory employees. Employee members of
the committee shall be selected by, and from among, non-supervisory
employees. Committees shall be co-chaired by a representative of the
employer and non-supervisory employees. Where there is a collective
bargaining agreement in place, the collective bargaining representative
shall be responsible for the selection of employees to serve as members
of the committee. Committees representing geographically distinct
worksites may also be formed as necessary.
3. No employer shall interfere with the selection of employees who
shall serve on such committee or who serve as the workplace safety
designee or with such employees' performance of the duties authorized
under this section.
4. Each workplace safety committee and workplace safety designee shall
be authorized to perform the following tasks, including but not limited
to:
(a) Raise health and safety concerns, hazards, complaints and
violations to the employer to which the employer must respond.
(b) Review any policy put in place in the workplace required by any
provision of this chapter relating to occupational safety and health and
provide feedback to such policy in a manner consistent with any
provision of law.
(c) Review the adoption of any policy in the workplace in response to
any health or safety law, ordinance, rule, regulation, executive order,
or other related directive.
(d) Participate in any site visit by any governmental entity
responsible for enforcing safety and health standards unless otherwise
prohibited by law.
(e) Review any report filed by the employer related to the health and
safety of the workplace in a manner consistent with any provision of
law.
(f) Regularly schedule a meeting during work hours at least once a
quarter that shall last no longer than two hours.
5. Employers shall permit safety committee designees to attend a
training of no longer than four hours, without suffering a loss of pay,
on the function of worker safety committees, rights established under
this section, and an introduction to occupational safety and health.
6. Any employee who participates in the activities or establishment of
a workplace safety committee shall not be subject to retaliation for any
actions taken pursuant to their participation. Violations of this
subdivision shall be deemed to be a violation of paragraph (a) of
subdivision one of section two hundred fifteen of this chapter and the
civil penalties and remedies of paragraph (b) of subdivision one and
paragraphs (a) and (b) of subdivision two of section two hundred fifteen
of this chapter shall be applicable to this subdivision.
7. Nothing in this section shall be deemed to diminish the rights,
privileges, or remedies of any employee under any collective bargaining
agreement. The provisions of this section may be waived by a collective
bargaining agreement, provided that for such waiver to be valid, it
shall explicitly reference this section.
8. The commissioner shall adopt and amend rules and regulations to
effectuate the provisions and purposes of this section.
9. (a) An employer must recognize within fifteen business days the
establishment of a workplace safety committee created pursuant to this
section. Violations of this subdivision shall result in a civil penalty
of not less than fifty dollars per day until the violation is remedied.
(b) The commissioner may also order other appropriate relief including
enjoining the conduct of any person or employer in addition to any other
remedies permitted by this section.
Prevention of retail workplace violence. 1. Definitions. For
the purposes of this section:
a. "Employer" means any person, entity, business, corporation,
partnership, limited liability company, or an association employing at
least ten retail employees. The term shall not include the state, any
political subdivision of the state, a public authority, or any other
governmental agency or instrumentality.
b. "Retail employee" means an employee working at a retail store for
an employer.
c. "Workplace" means any location away from an employee's domicile,
permanent or temporary, where an employee performs any work-related duty
in the course of their employment by an employer.
d. "Retail store" means a store that sells consumer commodities at
retail and which is not primarily engaged in the sale of food for
consumption on the premises.
2. Written workplace violence prevention policy. The department shall
create and publish a model retail workplace violence prevention guidance
document and retail workplace violence prevention policy that employers
may utilize in their adoption of a retail workplace violence prevention
policy required by this section. Such model retail workplace violence
prevention policy shall be publicly available and posted on the website
of the department.
a. Such model retail workplace violence prevention policy shall:
(i) outline a list of factors or situations in the workplace that
might place retail employees at risk of workplace violence, including
but not limited to:
(A) working late night or early morning hours;
(B) exchanging money with the public;
(C) working alone or in small numbers; and
(D) uncontrolled access to the workplace;
(ii) outline methods that employers may use to prevent incidents of
workplace violence, including but not limited to establishing and
implementing reporting systems for incidents of workplace violence;
(iii) include information concerning the federal and state statutory
provisions concerning violence against retail workers and remedies
available to victims of violence in the workplace and a statement that
there may be applicable local laws; and
(iv) clearly state that retaliation against individuals who complain
of workplace violence or the presence of factors or situations in the
workplace that might place retail employees at risk of workplace
violence, or who testify or assist in any proceeding under the law is
unlawful.
b. Every employer shall adopt the model retail workplace violence
prevention policy promulgated pursuant to this subdivision, or establish
a workplace violence prevention policy that equals or exceeds the
minimum standards provided by such model retail workplace violence
prevention policy. Such retail workplace violence prevention policy
shall be provided to all employees in writing upon hire and annually
thereafter pursuant to paragraph a of subdivision four of this section.
3. Employee information and training. a. The department, in
consultation with relevant groups as deemed necessary by the department,
shall produce a model workplace violence prevention training program.
Every employer shall utilize the model workplace violence prevention
training program pursuant to this subdivision or establish a workplace
violence prevention training program that equals or exceeds the minimum
standards provided by such model training program. The department's
model training program shall be interactive and shall include, but not
be limited to:
(i) information on the requirements of this section;
(ii) examples of measures retail employees can use to protect
themselves when faced with workplace violence from customers or other
coworkers;
(iii) de-escalation tactics;
(iv) active shooter drills;
(v) emergency procedures; and
(vi) instruction on the use of security alarms or buttons, and other
related emergency devices.
b. The department shall include information in such model workplace
violence prevention training program addressing conduct by supervisors
and any additional responsibilities for such supervisors, including ways
to address workplace specific emergency procedures, and training on
areas of previous security problems.
c. As part of this training, every employer shall communicate to each
employee a site-specific list of emergency exits and meeting places in
case of emergency. Such workplace violence prevention training shall be
provided to all retail employees upon hire and on an annual basis
thereafter. Employers covered under this section employing fewer than
fifty retail employees shall provide such workplace violence prevention
training upon hire and once every two years thereafter.
4. Notice of policy. a. Every employer shall provide their retail
employees, in writing in English and in the language identified by each
employee as the primary language of such employee, at the time of hiring
and at every annual workplace violence prevention training provided
pursuant to subdivision three of this section, a notice containing such
employer's retail workplace violence prevention policy and the
information presented at such employer's workplace violence prevention
training program.
b. The commissioner shall prepare templates of the model retail
workplace violence prevention policy created and published pursuant to
subdivision two of this section and the model workplace violence
prevention training program produced pursuant to subdivision three of
this section. The commissioner shall determine, in their discretion,
which languages to provide in addition to English, based on the twelve
most common non-English languages spoken by limited-English proficient
individuals in the state, based on the data in the most recent American
Community Survey published by the United States Census Bureau and
published online by the New York state office of language access.
c. When an employee identifies as their primary language a language
for which a template is not available from the commissioner, the
employer shall comply with this subdivision by providing that employee
an English-language notice.
d. An employer shall not be penalized for errors or omissions in the
non-English portions of any notice provided by the commissioner.
* 5. Retail worker requests for assistance. a. Every employer of five
hundred or more retail employees statewide shall provide every retail
employee with a silent response button to request immediate assistance
from a security officer, manager, or supervisor while the employee is
working at the employee's location in case of an emergency. Such silent
response button may be a device that is installed in an easily
accessible location in the workplace, or a wearable or mobile
phone-based button.
b. Mobile phone-based silent response buttons may only be installed on
employer-provided equipment, and wearable and mobile phone-based silent
response buttons shall not be used to track employee locations except
when the silent response button is triggered.
* NB Effective January 1, 2027
6. Rules and regulations. The commissioner may adopt rules and
regulations necessary to implement the provisions of this section.
7. Evaluation of policy. Beginning in the year two thousand
twenty-seven and every succeeding four years thereafter, the department
shall evaluate, using the criteria within this section, the impact of
the current model retail workplace violence prevention guidance document
and retail workplace violence prevention policy. Upon the completion of
each evaluation the department shall update the model retail workplace
violence prevention guidance document and retail workplace violence
prevention policy as needed.
* § 27-f. Requiring first aid materials in a workplace to include an
opioid antagonist. 1. All employers that are federally mandated by the
United States Occupational Safety and Health Act of 1970 (Public Law,
91-596) and safety and health standards promulgated thereunder to have
first aid supplies readily available for the treatment of all injured
employees must have an opioid antagonist available for use in providing
first aid or emergency treatment at the workplace.
2. For the purposes of this section, the following terms shall have
the following meanings:
(a) "Employer" includes any person, corporation, limited liability
company, or association employing any individual in any occupation,
industry, trade, business, or service. The term "employer" shall not
include the state, any political subdivision of the state, a public
authority or any other governmental agency or instrumentality thereof.
(b) "Opioid antagonist" means the same as defined in section
thirty-three hundred nine of the public health law.
3. Administering an opioid antagonist pursuant to this section shall
be considered first aid or emergency treatment for purposes of section
three thousand-a of the public health law.
4. The commissioner shall promulgate regulations, in coordination with
the commissioner of health, to address the appropriate number of opioid
antagonists for workplaces based on the size of the workplace; the
training of personnel and use of such opioid antagonists; and any other
matter deemed necessary by such commissioner to effectuate this section.
* NB Effective December 12, 2026
Procedure for issuing safety and health rules. Before any rule
is adopted, amended or repealed there shall be a public hearing thereon,
notice of which shall be published at least once, not less than ten days
prior thereto, in such newspaper or newspapers as the commissioner may
prescribe. The commissioner may appoint committees composed of
employers, employees and experts to suggest rules or changes therein.
Every rule adopted and every amendment or repeal thereof shall be
promptly published in such newspaper or newspapers as the commissioner
may prescribe. The rules and all amendments and repeals thereof shall,
unless otherwise prescribed by the commissioner, take effect twenty days
after the first publication thereof and certified copies thereof shall
be filed in the office of the department of state.
Variations. 1. If there shall be practical difficulties or
unnecessary hardship in carrying out the provisions of this chapter
relating to safety or health standards, or an order requiring compliance
with such provisions of this chapter, or in carrying out an order of the
commissioner requiring compliance with the state building construction
code, the commissioner may make a variation from such requirements or
order if the spirit of the provision, rule or code shall be observed and
public safety secured. Applications for permanent variations shall be
accompanied by a non-refundable fee of three hundred fifty dollars
payable to the commissioner.
2. Any person affected by such provision, rule, code, or order, or his
agent, may petition the commissioner, in accordance with such rules as
he shall prescribe, for such variation stating the grounds therefor. If
a petition relates to an order requiring compliance with the state
building construction code, the commissioner shall give prompt notice of
the filing of such petition to the state building code council. If, in
the opinion of the council, it is necessary or desirable that it
intervene in any proceeding in connection therewith, it shall be
permitted to do so as a matter of right. The commissioner shall fix a
day for a hearing on such petition and give notice thereof to the
petitioner and to such other persons as he may determine. If the
commissioner shall permit a variation he may impose such conditions as
he may deem necessary or advisable to assure public safety. The
variation shall apply to the petitioner and shall recite the conditions
under which the variation shall be permitted.
3. Except for variations concerning provisions, rules, codes, orders
or any other matter affecting asbestos projects, mold projects or safety
and health standards for public employees, including but not limited to
projects covered by article thirty and section twenty-seven-a and
subdivision ten of section two hundred forty-one of this chapter;
a. any person who petitions the commissioner for a variation as
provided by this section shall:
(1) post a copy of the petition at the site to be affected by the
variation in a location that is reasonably accessible to the public and
the employees at the site;
(2) provide a listing, in the petition, of the designated
representatives (if any) of all employee organizations recognized or
certified pursuant to the national labor relations act (29 U.S.C.
sections 151 et. seq.), article fourteen of the civil service law or
article twenty of this chapter to represent employees at the site
affected by the variation; such listing shall provide the names and
addresses of all such representatives;
(3) mail by certified mail, return receipt requested, a copy of the
petition to the designated representatives listed as required by
subparagraph two of this paragraph within three days of sending the
petition to the commissioner; and
(4) affirm in the petition that the petition has been posted as
required by subparagraph one of this paragraph or that it will be posted
within one week of sending the petition to the commissioner and that the
petitioner has mailed by certified mail, return receipt requested, a
copy of the petition to all designated representatives, as required by
subparagraph three of this paragraph.
b. The commissioner shall send a copy of his or her determination on
the petition to the petitioner and any designated representatives listed
on the petition pursuant to subparagraph two of paragraph a of this
subdivision.
4. Whenever a petition is filed for a variation, except for a
variation relating to an order requiring compliance with the state
building construction code, or upon the commissioner's own motion, the
commissioner may make a general variation which shall apply to all
buildings, installations, or conditions where the facts are
substantially the same as those set forth in the resolution, by whomever
the same may be owned, possessed or controlled and wherever the same may
be or will thereafter be found within the state of New York with the
same force and effect as if a variation were duly granted upon separate
petition and for the use and benefit of every person affected by the
statutory provision or code rule from which the said general variation
was made.
5. Any variation may be amended or terminated by the commissioner for
any of the following reasons:
a. The variation or any of its conditions was or is not wholly
complied with;
b. The variation does not continue to secure public safety;
c. The difficulties or hardship prevailing at the time of the making
of the variation have ceased to exist;
d. The labor law provision or rule from which the variation was made
has been amended, or a new rule governing the subject has been adopted;
or
e. A finding by the commissioner that other substantial grounds exist
warranting the amendment or termination of the variation.
6. The commissioner may publish such variations as he may deem
necessary. A properly indexed record of all variations shall be kept in
the office of the department and open to public inspection.
7. Notwithstanding any other law, rule or regulation to the contrary,
as of the effective date of sections two hundred ninety-one through two
hundred ninety-four of chapter one hundred ninety of the laws of
nineteen hundred ninety, the fee requirements set forth in this section
and article thirty of this chapter shall continue to apply to all public
and private entities, including, but not limited to, the state, any
subdivision of the state, any government agency or instrumentality
thereof, including any entity created by one or more states or
subdivisions thereof, any public authority, any public or private
corporation, any person, company, unincorporated association, firm, or
partnership and any owner or operator thereof.
Duty to furnish information and facilitate inspections. The
owner, operator, manager or lessee of any place affected by the
provisions of this chapter or his agent, superintendent, subordinate or
employee, and any person employing or directing any labor affected by
such provision shall, when requested by the commissioner or board,
furnish any information in his possession or under his control which the
commissioner or board is authorized to require; shall answer truthfully
all questions authorized to be put to him; shall admit the commissioner,
a deputy commissioner, or other officer or employee of the department,
to any place which is affected by the provisions of this chapter for the
purpose of making inspection or enforcing the provisions thereof, and
shall render assistance necessary for a proper inspection.
Interference with officer or employee of department prohibited.
No person shall interfere with, obstruct or otherwise hinder any officer
or employee of the department in the performance of his duties.
Service of notice. 1. Notwithstanding any other law, rule, or
regulation, whenever the commissioner or board or any person affected by
the provisions of this chapter is required to give notice in writing to
any person, such notice may be given by mailing it in a letter addressed
to the last known place of business of such person, by delivering it to
the person personally, or by electronic communication with the consent
of the person in accordance with subdivision two of this section. Notice
to a partnership may be given to any of the partners, notice to a
corporation may be given to any officer or agent thereof, and notice to
a limited liability company may be given to any member or agent thereof,
upon whom a summons may be served as provided by the civil practice law
and rules, or by electronic communication with the consent of the entity
in accordance with subdivision two of this section. Consent for any
entity may be provided by a partner, officer, agent, member, owner, or
other similar individual. Whenever an order or demand of the department
is required to be served it shall be served in the manner hereinbefore
provided for the service of a notice, by delivering it to any person of
suitable age and discretion in charge of the premises affected by such
order or demand, or by electronic communication with the consent of the
person in accordance with subdivision two of this section, or if no
person is found in charge by affixing a copy thereof conspicuously upon
the premises.
2. For the purposes of this section, a person or entity shall be
deemed to have consented to electronic communication if, having been
advised conspicuously that enrollment or registration is voluntary and
that they may continue to receive notices by mail or personal service as
provided in this section, they instead affirmatively choose to receive
notices by electronic communications only.
Department to keep record and publish bulletin of licenses. The
department shall keep records of all licenses, permits or certificates
issued, revoked or amended by it and publish lists thereof at such times
and in such forms as it may determine.
Maintenance of records. 1. The department is authorized and
empowered to use electronic storage technology to record and maintain
public records, papers, documents or matters required by law to be
recorded. Such records shall be capable of being copied, photographed,
or microphotographed by a process which accurately reproduces the
original thereof in all details.
2. The copies thereof shall be deemed to be an original record for all
purposes, including introduction in evidence in all courts or
administrative agencies. A transcript, exemplification or certified copy
thereof shall, for all purposes recited herein, be deemed to be a
transcript, exemplification, or certified copy of the original.
3. The department shall have the power to dispose of or destroy its
records, subject only to receiving the consent of the commissioner of
education as may be required by article fifty-seven of the arts and
cultural affairs law.
Destruction of old records. All statistics and other documentary
matter filed with the department may be destroyed by the commissioner
after the expiration of six years from the filing thereof.
Department's process to be in its name. All notices or orders
shall be given by and in the name of the department by the commissioner,
by the industrial board of appeals or a member thereof, or by the deputy
commissioner or other officer or employee thereunto duly authorized.
Oaths and affidavits. The commissioner, a member of the
unemployment insurance appeal board, the deputy commissioner, a referee
and any other officer or employee of the department if duly authorized
by the commissioner, may administer oaths and take affidavits in matters
relating to the provisions of this chapter.
Hearings and subpoenas. The commissioner, the members of the
unemployment insurance appeal board, the deputy commissioner, referees
and any other officer of the department designated by the commissioner,
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.
Proceedings before officers or employees. 1. Any investigation,
inquiry or hearing which the commissioner has power to undertake or to
hold may by authorization be undertaken or held by or before any officer
or competent employee of the department.
Rules governing hearings. The commissioner shall not be bound by
technical rules of evidence and shall conduct all hearings according to
procedure prescribed by him.
Youth education, employment and training program. This program
shall provide services to economically disadvantaged in-school and
out-of-school youth fourteen to twenty-one years of age and shall be
subject to the following provisions of this section:
1. The goals of this program shall be entry into post-secondary
education, enrollment in vocational or skills training programs, or the
attainment of favorable employment and career opportunities. To obtain
program goals, local projects shall include one or more of the following
objectives: retention in high school, improvement in basic academic and
vocational skills and, when attainable, the acquisition of a high school
diploma or its equivalent.
2. For the purpose of this section, the following terms shall have the
following meanings: "local project" shall mean the specific plan or
proposal for support and/or direct client services at the local level as
specified in a contractual agreement with employment and training
providers pursuant to this section; and "economically disadvantaged"
shall be defined as set forth in regulations promulgated by the state
education department pursuant to sections sixty-four hundred fifty-one
and sixty-four hundred fifty-two of the education law or as set forth in
the federal job training partnership act, public law 97-300 or its
successor program or in the absence of such, as defined by the
commissioner. Moneys to fund the program may be used for projects in
which up to ten percent of the participants enrolled, on a project by
project basis, are youth who are not economically disadvantaged if such
youth have been identified as at risk of dropping out of school or have
barriers to employment.
3. Subject to the limits of available moneys for this program and the
approval of the director of the budget, the commissioner, in
consultation with the commissioner of education, shall select and make
contracts with preference to employment and training providers who have
demonstrated effectiveness in serving disadvantaged youth for the
purpose of conducting local projects. Such moneys may be used for
contractors selected on a competitive basis consistent with executive
order number one hundred twenty-seven which expedites and simplifies
contracting with not-for-profit agencies. Such employment and training
providers shall only include not-for-profit community based
organizations, boards of cooperative educational services,
post-secondary educational agencies, grant recipients or administrative
entities of the service delivery areas (hereinafter referred to as
SDAs), as may be defined by the Federal Job Training Partnership Act
(hereinafter referred to as JTPA) or its successor program or in the
absence of such, as defined by the commissioner, joint apprentice
committees, labor organizations, and public and private employers.
Preference in selection of such contractors shall be given to qualified
and experienced community based organizations with proven ability to
administer such programs.
4. Moneys for this program shall be apportioned in a manner that
ensures a distribution of funds to projects operating in communities
which have high rates of youth unemployment, significant drop-out rates
among high school-aged youth, large numbers of youth living in poverty,
and a high proportion of households receiving public assistance
benefits.
5. Such moneys may not be used for an SDA as an employment and
training provider for local projects for out-of-school youth unless it
has been determined by the commissioner that no other employment and
training provider is available in the area which this program is
designed to serve.
6. Notwithstanding any other provisions of law to the contrary, the
educational opportunity centers (hereinafter referred to as EOCs)
operated by the state university and educational centers operated by the
units of the city university of New York are hereby authorized to
contract with employment and training providers funded pursuant to this
section for provision of services authorized under this section and to
receive reimbursement for services provided. For the purpose of this
program, all participants eligible for services pursuant to this section
shall be deemed to be eligible for services provided by the EOCs.
7. Allowable activities under this section may include tutoring, basic
skills remediation, occupational/vocational training, vocational
exploration, on-the-job and supervised worksite training, counseling,
and support services. Local projects shall integrate such allowable
activities, as fully as possible.
8. Participants in programs under this section may be granted a
stipend if such youth are not participating in a paid work experience.
On an individual participant basis, the local project operator may
extend tutorial services, basic skills remediation, and counseling
beyond one program year, provided the participant continues to meet the
other eligibility requirements of this program.
9. Pursuant to a memorandum of agreement, the education department
shall be responsible for the approval of the educational component of
local projects under this section predicated upon a review of each local
project proposal. Such educational component shall include programs of
instruction, remedial activities, and services designed to improve
participants' performance in reading, writing, communication, math, and
science. Academic credit may be made available to qualifying
participants for their involvement and performance in this program.
Local projects shall be evaluated for credit and recommendations shall
be made to local schools by the education department.
10. As a condition of participating in programs under this section,
each employment and training provider shall establish cooperative
relationships for improving linkages with local educational agencies and
SDAs which insure that school-based educational activities are
integrated with the educational component of the local project as fully
as possible.
11. Up to ten percent of the program funds allocated to local projects
for direct client services may be expended for support services,
provided that such support services are not available from other
federal, state, local, or private resources. Such support services shall
include day care which meets state standards, transportation, meal
allowances, and clothing allowances.
12. No moneys shall be allocated to the department for support and/or
direct client services unless the following conditions have been met: a
memorandum of agreement has been signed with the education department
pursuant to this section; and, regulations governing the selection and
implementation of local projects have been issued. Further, no
liabilities shall be assumed or moneys expended for support and/or
direct client services unless such funding is specified in a contractual
agreement with employment and training providers and the educational
component of such contract has been approved by the education
department.
13. Of the total funds made available for the payment of local
projects for in-school youth and out-of-school youth, no more than one
million three hundred forty-nine thousand dollars shall be allocated for
local projects administered by service delivery areas. Provided further
that as a condition of funding under such appropriation, a fifty percent
match for the amount made available for local projects for in-school
youth shall be required from employment and training providers out of
in-kind services or moneys received through other local, private, or
federal resources; except that a match of those funds designated for
payment of participant wages and fringe benefits shall not be required.
However, fifty percent of the payment of wages and fringe benefits to
participants in approved vocational exploration or trial work experience
in local projects for in-school youth administered by SDAs and funded
under such appropriations shall be subsidized by the SDA out of moneys
received through JTPA or its successor program, except that no JTPA or
successor program subsidization of trial work experience shall be
required if the SDA shall have otherwise obligated all moneys received
through JTPA or its successor program, in which case the SDA may meet
its obligation to subsidize from moneys received from any available
source other than such appropriation. Further, no more than twenty-five
percent of the payment of wages and fringe benefits to participants in
on-the-job training in local projects for in-school youth administered
by SDAs shall be paid from funds made available pursuant to such
appropriation and any such funds so used shall be matched by the SDA out
of moneys received through JTPA or its successor program, unless the SDA
shall have otherwise obligated all moneys received through JTPA or its
successor program.
14. As a condition of receipt of moneys for payments for local
projects for in-school youth and out-of-school youth local projects for
out-of-school youth shall give preference to youth who are homeless and
to adolescent parents, provided such youth meet other eligibility
requirements of this program. Employment and training providers under
this appropriation shall not be required to match moneys made available
for local projects for out-of-school youth.
15. Notwithstanding any other law, rule or regulation to the contrary,
the department shall prepare and submit to the governor, the temporary
president of the senate, the speaker of the assembly and the chair of
the legislative commission on skills development and vocational
education, an annual evaluation report of this program no later than
October thirty-first following the end of the program year. The report
shall include a statement of program objectives which identifies
outcomes and indicators of the effectiveness of the program. It shall
represent the extent to which program activities meet program objectives
including, but not limited to, improvements in participants' educational
competencies and employability skills as measured by accepted testing
tools. The basic measures of performance for projects for in-school
youth shall be: high school retention, attainment of a high school
diploma, enrollment in a post-secondary educational program or
vocational skills training program, or attainment of unsubsidized
employment. The basic measure of performance for projects for
out-of-school youth shall be: improvement in basic academic and
vocational skills, return to high school, attainment of a high school
equivalency diploma, enrollment in a post-secondary educational program
or vocational skills training program, or attainment of unsubsidized
employment. The report shall include a separate count of participants
who have participated in the same program model through more than one
program cycle. A methodology shall be prescribed which requires
collection of post-program information on program participants
including, but not limited to, whether a participant receives a high
school degree or its equivalent and subsequent labor market experience
for one year following termination from the program, and the extent to
which the participant achieved outcomes as defined by the certified
program model. The report shall also describe the types of support
services provided, levels of expenditure, and demonstrate how such
support services improve participant involvement in local projects.
16. Notwithstanding any other law, rule, or regulation to the
contrary, including the provisions of the social services law, wages and
income earned by the participants of this program who are receiving
assistance under the temporary assistance for needy families block grant
shall be exempt and disregarded when determining the need for such
assistance in accordance with federal law and regulations or pursuant to
waiver of such law and regulations. Wages and income earned by
participants in this program, who are receiving assistance pursuant to
the safety net assistance program, or under the temporary assistance for
needy families block grant, or the veterans assistance program, shall be
exempt and disregarded when determining the need for such assistance.
Such income and wage exemptions and disregards shall be allowed, if, and
as long as, federal financial participation is available.
17. Notwithstanding any other law, rule or regulation to the contrary,
employment and training providers funded through this program shall be
designated no later than June first of each year. Failure of providers
to submit required monthly or fiscal reports to the department without
waiver for reasonable or unanticipated circumstances shall cause forfeit
of the program contract effective after sixty days notification to
providers.
Transfer of funds to the unemployment insurance occupational
training fund. Notwithstanding any other law, rule or regulation to the
contrary, subject to approval by the director of the budget, the state
comptroller is hereby authorized and directed to transfer funds from
other state operations and aid to localities appropriations to the
unemployment insurance occupational training fund in the department to
meet requirements for payment of the state share of individual and
family grants awarded pursuant to the federal disaster relief act of
1974, public law 93-288.
Workplace fatality registry; construction. 1. Registry. The
department shall create and maintain a registry of workplace fatalities
in the construction industry, which shall include information regarding
all incidents under which a worker performing construction work suffers
a work-related fatal injury in the workplace. Such registry shall
include the information reported to the department pursuant to
subdivisions three and four of this section, in addition to any
information deemed pertinent by the commissioner as a result of any
investigation, hearing, or other proceedings of the department.
2. Definitions. For the purposes of this section:
a. "Worker" shall include, but not be limited to, direct employees,
contracted employees, subcontracted employees, independent contractors,
temporary or contingency workers, apprentices, interns, volunteers, or
any other persons who perform duties at the direction and discretion of
a contractor or who provide services pursuant to a contract in the
workplace.
b. "Contractor" shall include a direct employer, contractor, or
subcontractor. In the absence of a formal hiring agreement, the person
who directs or provides compensation to the worker shall be considered
the contractor unless such person is also directed and compensated by
another. In such cases, the persons successively above the worker in the
employment chain shall be considered the contractor. In the instance of
the death of an intern or volunteer, the entity directing such intern or
volunteer in his or her duties as such shall be considered the
contractor.
c. "Workplace" shall include, but not be limited to, any location
where a worker performs any work-related duty in the course of his or
her employment, or any other site where the worker may be as a result of
contractor direction.
d. "Construction" shall include, but not be limited to, any work
involving the construction, reconstruction, alteration, rehabilitation,
repair, renovation, demolition, or installation of any building,
structure, or improvement, or in relation to the excavation of or other
development or improvement to any land.
3. Seventy-two-hour reports. a. Each county coroner, medical examiner
or other authorized official whose role is to register deaths, when
making the determination as to the cause and manner of death, shall
determine whether such death was the result of a work-related fatal
injury in the workplace and report all such workplace fatalities in the
construction industry to the department within seventy-two hours of such
determination.
b. Information to be reported within seventy-two hours shall include,
but not be limited to:
(i) the name of the worker;
(ii) the age of the worker;
(iii) the cause of death;
(iv) the manner of death;
(v) the location of death;
(vi) the name of the contractor;
(vii) the business address of the contractor;
(viii) the name of the official or medical personnel making the
declaration of death;
(ix) the name of the person or persons charged with making the
determination of the cause and manner of death; and
(x) contact information for the office making notification to the
department, including contact information for the person or persons
making the declaration of death, the person or persons determining the
cause of death, and the person or persons determining the manner of
death.
4. Ninety-day reports. a. Upon receiving a report pursuant to
subdivision three of this section, the department shall notify the
contractor that such death was determined to be the result of a
work-related fatal injury in the workplace and shall require the
contractor to submit additional information regarding such workplace
fatality. The contractor shall provide such information to the
department no later than ninety days after receiving such notification.
b. Information to be reported within ninety days shall include, but
not be limited to:
(i) the name of the contractor;
(ii) the business address of the contractor;
(iii) the stated business purpose or industry of the contractor;
(iv) the name and age of the worker;
(v) the ethnicity of the worker, if known;
(vi) the nationality of the worker, if known;
(vii) the immigration status of the worker, if known;
(viii) the craft, trade or occupation of the worker; and
(ix) the union status of the worker.
5. Investigation. The department in its sole discretion may also:
a. conduct an investigation into any work-related fatal injury in the
workplace involving a worker performing construction work;
b. request additional information from a contractor in relation to
such worker or such workplace fatality; and
c. request information as to whether criminal or civil charges have
been filed against the contractor in the death of the worker, including:
(i) the details of such criminal or civil charges including the
charging officer or agency; and
(ii) the actual criminal or civil charge or charges.
6. Reporting system. The department shall establish a reporting system
for the information required to be reported pursuant to subdivisions
three and four of this section.
7. Failure to report. Failure by any contractor to report the
information required pursuant to subdivision four of this section within
ninety days of notification by the department that such death was the
result of a work-related fatal injury in the workplace shall be subject
to a fine of not less than one thousand dollars nor more than two
thousand five hundred dollars per failure to make such report.
8. Accessibility of registry. The department shall establish and
maintain an online database to make available all information and data
regarding all workplace fatalities in the construction industry reported
to the registry pursuant to this section. Such information shall be
provided in the aggregate and shall be electronically accessible and
searchable to the public, provided however, that in no event shall a
worker's name or other personal identifying information be included in
such database. The department shall update the database with the
information reported to the registry pursuant to this section within
five business days of the receipt of such reports by the department.
ARTICLE 3 Administrative and Judicial Review
Industrial board of appeals. 1. There is hereby created in the
department of labor a board, to be known as the industrial board of
appeals, which shall be composed of five members, at least one of whom
shall be a lawyer. Of the first members of the board, two shall be
designated by the governor from among the members of the board of
standards and appeals in office on the day preceding the effective date
of this act, who shall serve for terms expiring on December
thirty-first, nineteen hundred seventy-seven, and three shall be
appointed by the governor, with the advice and consent of the senate,
two of whom shall be appointed for terms expiring on December
thirty-first, nineteen hundred seventy-six, and one of whom shall be
appointed for a term expiring on December thirty-first, nineteen hundred
seventy-eight. Their successors shall be appointed by the governor, with
the advice and consent of the senate, for terms of six years, except
that if a vacancy occurs otherwise than by expiration of term, it shall
be filled for the unexpired term. The governor shall designate one
member to serve as chairman of the board. The governor may remove a
member of the board for inefficiency, neglect of duty or misconduct in
office after giving him a copy of the charges and an opportunity of
being publicly heard in person or by counsel on not less than ten days
notice. If a member of the board be removed the governor shall file with
the department of state a record of his proceedings in respect of such
removal and his findings therein.
2. The members of the board shall receive compensation as determined
by the governor within the limits of the appropriation made therefor.
The chairman shall devote his entire time to the duties of his office
and shall not hold any other public office nor engage in any other
business, vocation or employment. The reasonable and necessary traveling
and other expenses of the members of the board and other officers and
employees of the board, while actually engaged in the performance of
their duties shall be paid from the state treasury upon the audit and
warrant of the comptroller, upon vouchers approved by the chairman.
3. The industrial commissioner shall detail to the board such
employees as shall be reasonably necessary to perform the duties of the
board and shall fix their compensation within the limits of the
appropriation made therefor.
4. The principal office of the board shall be in the county of Albany,
but it may meet and exercise any or all of its powers at any other place
within the state.
5. (a) The board shall not be bound by technical rules of procedure
and evidence and shall conduct all hearings according to procedure
prescribed by the board.
(b) The board may designate one or more of its members or competent
employees to hold a hearing or investigation relating to any matter
pertaining to the execution of its functions, and to report to the
board.
(c) The board by one or more members shall have the power:
(1) To administer oaths and take affidavits in matters relating to the
performance of its functions under this chapter;
(2) To issue subpoenas for and compel the attendance of witnesses and
the production of books, contracts, papers, documents and other
evidence;
(3) 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.
8. Notwithstanding any other provision of this chapter or any other
law, neither the industrial commissioner nor any board or other agency
of the department of labor shall in any way direct, review, modify or
reverse any decision or finding of the board, nor shall the industrial
commissioner or any board or other agency of the department of labor
supervise or control the board in the exercise of any powers or in the
performance of its duties or functions under this chapter.
Review by industrial board of appeals. 1. Except where
otherwise prescribed by law, any person in interest or his duly
authorized agent may petition the board for a review of the validity or
reasonableness of any rule, regulation or order made by the commissioner
under the provisions of this chapter. Such petition shall be filed with
the board no later than sixty days after the issuance of such rule,
regulation or order.
2. The petition shall be filed with the board in accordance with such
rules as the board shall prescribe, and shall state the rule,
regulation, or order proposed to be reviewed and in what respects it is
claimed to be invalid or unreasonable. Any objections to the rule,
regulation or order not raised in such appeal shall be deemed waived.
The board may join in one proceeding all petitions alleging invalidity
or unreasonableness of substantially similar rules, regulations or
orders. Except as otherwise prescribed by any provision of this chapter
or any other law, the filing of such petition may, in the discretion of
the board, operate to stay all proceedings against the petitioner under
such rule, regulation or order until the determination of such petition.
3. If the board finds that the rule, regulation or order, or any part
thereof, is invalid or unreasonable it shall revoke, amend or modify the
same.
Review by court. 1. The decision of the board in a proceeding
under section one hundred one of this chapter shall be final except that
such decision shall be subject to appeal by an aggrieved party in a
proceeding under article seventy-eight of the civil practice law and
rules for judicial review, if such proceeding is commenced within sixty
days after the decision is issued.
2. The commissioner shall be considered a party entitled, if
aggrieved, to seek judicial review under this section.
Limited review of provisions of chapter and of rules,
regulations and orders. 1. Every provision of this chapter and of the
rules and regulations made in pursuance thereof, and every order
directing compliance therewith, shall be valid unless declared invalid
in a proceeding brought under the provisions of this chapter. Except as
otherwise provided in this chapter, no court shall have jurisdiction to
review or annul any such provision, rule, regulation or order or to
restrain or interfere with its enforcement.
2. Every such provision, rule, regulation or order shall in a
prosecution or action to impose a penalty for its violation be deemed
valid unless prior thereto such provision, rule, regulation or order has
been revoked or modified by the board or annulled by a court, or unless
a proceeding under this article is pending, in which case the
prosecution or action shall be stayed by the court pending the final
determination thereof. If any such prosecution or action is commenced
against a defendant who has not previously been served with an order to
comply with such provision, rule, regulation or order or who has been
served with such an order but has not had a reasonable opportunity to
comply therewith, and if within five days the defendant commences
proceedings under the provisions of this article, the prosecution or
action shall be stayed as if such proceeding were pending at the time it
was commenced. The provisions in this subdivision relating to court
stays shall be subject to any provision in any other section of this
chapter relating to stays of proceedings or actions.
Corporate instruments; inquiry by board. Whenever any corporate
instrument is submitted to the board for approval in accordance with the
requirements of any statute, the board shall make such inquiry as it may
deem advisable, and shall order a hearing, if necessary, in accordance
with such rules as it shall prescribe, to determine whether or not the
purposes of the proposed corporation are in all respects consistent with
public policy and the labor law, and whether the corporate name is in
all respects consistent with its purposes and activities or tends to be
misleading. Notice of the time and place of such hearing shall be given
to the applicant and to such other persons as the board may determine.
ARTICLE 4 Employment of Minors
Employment of minors under fourteen years of age. 1. No minor
under fourteen years of age shall be employed in or in connection with
any trade, business, or service, except as otherwise provided in this
section.
2. Exceptions: Nothing in this section shall be construed to prohibit
the employment of:
a. A minor under fourteen years of age as a child performer in
compliance with section 35.01 of the arts and cultural affairs law and
article four-A of this chapter.
b. A minor under fourteen years of age as a child model in compliance
with section 35.05 of the arts and cultural affairs law.
* c. A minor eleven years of age as a newspaper carrier in compliance
with section thirty-two hundred twenty-eight of the education law.
* NB Repealed May 9, 2027
d. A minor twelve or thirteen years of age by his parents or
guardians, either on the home farm or at other outdoor work not
connected with or for any trade, business, or service, when attendance
upon instruction is not required by the education law.
e. A minor over twelve years of age who presents a farm work permit,
in assisting in the hand work harvest of berries, fruits and vegetables,
for a period of four hours in any work day when attendance upon
instruction is not required by the education law between the hours of
nine o'clock in the forenoon and four o'clock in the afternoon between
the first day after Labor Day through and the twentieth day of June, and
seven o'clock in the forenoon and seven o'clock in the evening between
the twenty-first day of June and Labor day of the same calendar year,
and the minor is accompanied by a parent or has presented the written
consent of a parent or party with whom he or she resides to the
employer.
f. A minor pursuant to section seven hundred fifty-eight-a or 353.6 of
the family court act.
g. A minor twelve or thirteen years of age who assists a parent, aunt,
uncle, grandparent or guardian in the sale of produce of a farm that is
owned or leased by the minor's parent, aunt, uncle, grandparent or
guardian, at a farm stand or farmer's market stand that is owned or
leased by the minor's parent, aunt, uncle, grandparent or guardian, at
times when school is not in session and the minor is accompanied by the
parent or guardian or has presented the written consent of the parent or
guardian.
h. A minor twelve or thirteen years of age as a bridge caddie at a
bridge tournament when attendance upon instruction is not required by
the education law.
* § 131. Employment of minors fourteen or fifteen years of age. 1. No
minor fourteen or fifteen years of age shall be employed in or in
connection with any trade, business, or service when attendance upon
instruction is required by the education law.
2. When attendance upon instruction is not required by the education
law, a minor fourteen or fifteen years of age may be employed if he
presents an employment certificate or permit issued in accordance with
the education law; provided, however, that no minor fourteen or fifteen
years of age shall be employed in or in connection with a factory.
3. Exceptions:
a. When attendance upon instruction is not required by the education
law, a minor fourteen or fifteen years of age may be employed without an
employment certificate or permit in the following occupations:
(1) Caddy service on a golf course;
(2) Service as a baby sitter staying with and at the home of a younger
child or children with or without the presence at such home of such
child's or children's parents or guardians;
(3) Casual employment consisting of yard work and household chores in
and about a residence or the premises of a non-profit, non-commercial
organization, not involving the use of power-driven machinery;
(4) Assisting a parent, aunt, uncle, grandparent or guardian in the
sale of produce of a farm that is owned or leased by the minor's parent,
aunt, uncle, grandparent or guardian, at a farm stand or farmer's market
stand that is owned or leased by the minor's parent, aunt, uncle,
grandparent or guardian, at times when school in not in session and the
minor is accompanied by the parent or guardian or has presented the
written consent of the parent or guardian.
(5) Caddie service at a bridge tournament;
(6) Work for his parents or guardians either on the home farm or at
other outdoor work not connected with or for any trade, business, or
service.
b. Nothing in this section shall be construed to prohibit the
employment of a minor fourteen or fifteen years of age as a child
performer in compliance with section 35.01 of the arts and cultural
affairs law and article four-A of this chapter.
c. Nothing in this section shall be construed to apply to the
employment of a minor fourteen or fifteen years of age as a child model
in compliance with section 35.05 of the arts and cultural affairs law.
d. Nothing in this section, or the hours of work requirements of this
chapter, shall apply to a newspaper carrier in compliance with section
thirty-two hundred twenty-eight of the education law. The picking up of
newspapers at a newspaper plant shall not be construed to be employment
in or in connection with a factory if there is provided a place for the
picking up of such newspapers, which place does not contain any
dangerous machinery or equipment and does not afford access to space in
which any such dangerous machinery or equipment is located.
e. Nothing in this section shall prohibit the employment of a minor
fifteen years old who is found to be incapable of profiting from further
instruction available and who presents a special employment certificate
issued in accordance with the education law. Such employment certificate
shall not be valid for work in or in connection with a factory.
f. A minor fourteen or fifteen years of age may be employed in farm
service, when attendance upon instruction is not required by the
education law, provided such minor presents a farm work permit issued in
accordance with the education law. Such permit shall be valid only when
signed by the employer and it shall not be valid for work in or in
connection with a factory.
g. Nothing in this section shall prohibit the employment of a minor
fourteen or fifteen years of age during the school lunch period in a
school cafeteria at the school which the minor attends if the minor
presents an employment certificate issued in accordance with the
education law.
4. Employment in delivery and clerical employments:
a. Nothing contained in this article shall be deemed to prohibit the
employment of a minor fourteen or fifteen years of age for whom a
student non-factory employment certificate has been issued in accordance
with the provisions of the education law, in delivery and clerical
employments:
(1) in an office of a factory, provided that such office is enclosed
and separate from the place where manufacturing is carried on, and
provided that the minor is not engaged in any manufacturing operation or
process; or
(2) in or in connection with dry cleaning stores, tailor shops, shoe
repair shops and similar service stores which clean, press, alter,
repair or dye articles or goods belonging to the ultimate consumer,
provided that such employment does not involve the use of dangerous
machinery or equipment, or chemical processes.
b. The commissioner may promulgate rules and regulations which he
deems necessary to carry out the provisions of this subdivision.
5. Nothing in this section shall be construed to permit the employment
of a minor fourteen or fifteen years of age in any occupation prohibited
by section one hundred thirty-three of this chapter.
6. Nothing in this section shall prevent the rendering of services for
the public good by a minor of fourteen or fifteen years pursuant to
section seven hundred fifty-eight-a or 353.6 of the family court act.
* NB Effective until May 9, 2027
* § 131. Employment of minors fourteen or fifteen years of age. 1. No
minor fourteen or fifteen years of age shall be employed in or in
connection with any trade, business, or service when attendance upon
instruction is required by the education law.
2. When attendance upon instruction is not required by the education
law, a minor fourteen or fifteen years of age may be employed if they
present an employment certificate or permit issued in accordance with
the education law; provided, however, that no minor fourteen or fifteen
years of age shall be employed in or in connection with a factory.
3. Exceptions:
a. When attendance upon instruction is not required by the education
law, a minor fourteen or fifteen years of age may be employed without an
employment certificate or permit in the following occupations:
(1) Caddy service on a golf course;
(2) Service as a baby sitter staying with and at the home of a younger
child or children with or without the presence at such home of such
child's or children's persons in parental relation;
(3) Casual employment consisting of yard work and household chores in
and about a residence or the premises of a non-profit, non-commercial
organization, not involving the use of power-driven machinery;
(4) Assisting a person in parental relation as defined in section
thirty-two hundred twelve of the education law, aunt, uncle, or
grandparent in the sale of produce of a farm that is owned or leased by
the minor's person in parental relation, aunt, uncle, or grandparent, at
a farm stand or farmer's market stand that is owned or leased by the
minor's person in parental relation, aunt, uncle, or grandparent, at
times when school is not in session and the minor is accompanied by the
person in parental relation or has presented the written consent of the
person in parental relation.
(5) Caddie service at a bridge tournament;
(6) Work for their person in parental relation either on the home farm
or at other outdoor work not connected with or for any trade, business,
or service.
b. Nothing in this section shall be construed to prohibit the
employment of a minor fourteen or fifteen years of age as a child
performer in compliance with section 35.01 of the arts and cultural
affairs law and article four-A of this chapter.
c. Nothing in this section shall be construed to apply to the
employment of a minor fourteen or fifteen years of age as a child model
in compliance with section 35.05 of the arts and cultural affairs law.
d. A minor fourteen or fifteen years of age may be employed in farm
service, when attendance upon instruction is not required by the
education law, provided such minor presents a farm work permit issued in
accordance with the education law. Such permit shall be valid only when
signed by the employer and it shall not be valid for work in or in
connection with a factory.
e. Nothing in this section shall prohibit the employment of a minor
fourteen or fifteen years of age during the school lunch period in a
school cafeteria at the school which the minor attends if the minor
presents an employment certificate issued in accordance with the
education law.
4. Employment in delivery and clerical employments:
a. Nothing contained in this article shall be deemed to prohibit the
employment of a minor fourteen or fifteen years of age for whom a
student non-factory employment certificate has been issued in accordance
with the provisions of the education law, in delivery and clerical
employments:
(1) in an office of a factory, provided that such office is enclosed
and separate from the place where manufacturing is carried on, and
provided that the minor is not engaged in any manufacturing operation or
process; or
(2) in or in connection with dry cleaning stores, tailor shops, shoe
repair shops and similar service stores which clean, press, alter,
repair or dye articles or goods belonging to the ultimate consumer,
provided that such employment does not involve the use of dangerous
machinery or equipment, or chemical processes.
b. The commissioner may promulgate rules and regulations which they
deem necessary to carry out the provisions of this subdivision.
5. Nothing in this section shall be construed to permit the employment
of a minor fourteen or fifteen years of age in any occupation prohibited
by section one hundred thirty-three of this chapter.
6. Nothing in this section shall prevent the rendering of services for
the public good by a minor of fourteen or fifteen years pursuant to
section seven hundred fifty-eight-a or 353.6 of the family court act.
* NB Effective May 9, 2027
Employment of minor sixteen or seventeen years of age. 1. No
minor sixteen or seventeen years of age shall be employed in or in
connection with any trade, business, or service when attendance upon
instruction is required by the education law or in violation of the
employment certificating provisions of the education law.
2. A minor sixteen or seventeen years of age may be employed if he
presents an employment certificate or permit issued in accordance with
the education law.
3. Exceptions:
a. When attendance upon instruction is not required by the education
law, a minor sixteen or seventeen years of age may be employed without
an employment certificate or permit in the following occupations:
(1) Work on a farm;
(2) Caddy service on a golf course;
(3) Service as a baby sitter staying with and at the home of a younger
child or children with or without the presence at such home of such
child's or children's parents or guardians;
(4) Casual employment consisting of yard work and household chores in
and about a residence or the premises of a non-profit, non-commercial
organization, not involving the use of power-driven machinery other than
power-driven machinery ordinarily used in such yard work or household
chores;
(5) Caddie service at a bridge tournament;
(6) Work for his parents or guardians at outdoor work not connected
with or for any trade, business, or service.
b. Nothing in this section, or the hours of work requirements of this
chapter, shall apply to a newspaper carrier in compliance with section
thirty-two hundred twenty-eight of the education law.
c. Nothing in this section shall prohibit the employment of a minor
sixteen or seventeen years of age during the school lunch period in a
school cafeteria at the school which the minor attends if the minor
presents an employment certificate issued in accordance with the
education law.
d. Nothing in this section shall be construed to apply to the
employment of a minor sixteen or seventeen years of age as a child model
in compliance with section 35.05 of the arts and cultural affairs law.
e. Notwithstanding any other provision of this chapter, an employment
certificate or permit shall not be required for a student sixteen years
of age or over who is in attendance at a recognized institution of
higher learning and who is employed by a non-profit college or
university or by a college or university fraternity, sorority, student
association or faculty association.
f. Nothing in this section shall be construed to prohibit the
employment of a minor seventeen years of age as an election inspector or
poll clerk pursuant to section 3-400 of the election law, or to require
an employment certificate or permit therefor.
4. Nothing in this section shall be construed to permit the employment
of a minor sixteen or seventeen years of age in any occupation
prohibited by section one hundred thirty-three of this chapter.
5. Nothing contained in this section shall prevent the rendering of
services for the public good by a minor of sixteen or seventeen years
pursuant to section seven hundred fifty-eight-a or 353.6 of the family
court act.
Prohibited employments of minors. 1. Minors under sixteen. No
minor under sixteen years of age shall be employed in or assist in:
a. painting or exterior cleaning in connection with the maintenance of
a building or structure;
b. any occupation in or in connection with a factory, except as
provided in subdivision four of section one hundred thirty-one of this
chapter;
c. the operation of washing, grinding, cutting, slicing, pressing or
mixing machinery;
d. any employment in institutions in the department of mental hygiene,
provided, however, that for the purposes of this paragraph,
participation in recreation and leisure activities, social skills
development, companionship and/or entertainment as part of an organized
volunteer program approved by the commissioner of mental hygiene, shall
not constitute employment or assistance in employment and may be
performed by youthful volunteers at least fourteen years of age. Nothing
contained in this paragraph shall be construed to permit services
prohibited in subdivisions one and two hereof.
2. Minors of any age. No minor of any age shall be employed in or
assist in:
a. the care or operation of a freight or passenger elevator, except
that a minor over sixteen may operate automatic push button control
elevators;
b. or in connection with the manufacturing, packaging, or storing of
explosives;
c. operating or using any emery, tripoli, rouge, corundum, stone,
silicon carbide, or any abrasive, or emery polishing or buffing wheel,
where articles of the baser metals or iridium are manufactured;
d. penal or correctional institutions, if such employment relates to
the custody or care of prisoners or incarcerated individuals;
e. adjusting belts to machinery or cleaning, oiling or wiping
machinery;
f. packing paints, dry colors, or red or white leads;
g. preparing any composition in which dangerous or poisonous acids are
used;
h. operating steam boilers subject to section two hundred four of this
chapter;
i. any occupation at construction work, including wrecking,
demolition, roofing or excavating operations and the painting or
exterior cleaning of a building structure from an elevated surface;
j. any occupation involving exposure to radioactive substances or
ionizing radiation, or exposure to silica or other harmful dust;
k. logging occupations and occupations in the operation of any
sawmill, lath mill, shingle mill or cooperage-stock mill;
l. any occupation in or in connection with a mine or quarry;
m. any occupation involved in the operation of power-driven
woodworking, metal-forming, metal-punching, metal-shearing, bakery, and
paper products machines;
n. any occupation involved in the operation of circular saws, bandsaws
and guillotine shears;
o. any occupation in or about a slaughter and meat-packing
establishment, or rendering plant;
p. any occupation involved in the operation of power-driven hoisting
apparatus;
q. any occupation involved in the manufacture of brick, tile and
kindred products;
r. as a helper on a motor vehicle;
s. as a dancer or performer in any portion of a facility open to the
public wherein performers appear and dance or otherwise perform
unclothed, under circumstances in which such employment would be harmful
to such person in the manner defined in subdivision six of section
235.20 of the penal law.
3. a. The provisions of subdivision two of this section shall not
apply to (1) an apprentice who is individually registered in an
apprenticeship program which is duly registered with the commissioner in
conformity with the provisions of article twenty-three of this chapter;
or
(2) a student-learner who is enrolled in a course of study and
training in a cooperative vocational training program under a recognized
state or local educational authority, or in a course of study in a
substantially similar program conducted by a private school; or
(3) a trainee in an on-the-job training program approved by the
commissioner; or
(4) a minor who is employed in the occupation in which he has
completed training as a student-learner as provided in subparagraph (2)
of this subdivision or as a trainee as provided in subparagraph (3) of
this subdivision; or
(5) a minor who is employed in the occupation in which he has
completed a work training program of a non-profit organization or a
training program which is publicly funded in whole or in part, and as
part of such program received safety instruction and training in the use
of machinery, provided that such safety program has been approved by the
commissioner. As used in this paragraph the term "non-profit
organization" means an organization operated exclusively for religious,
charitable, or educational purposes, no part of the net earnings of
which inures to the benefit of any private shareholder or individual.
b. An employment certificate required by subdivision two of section
one hundred thirty-two of this article shall for the purposes of section
fourteen-a of the workmen's compensation law be deemed to authorize
employment under subparagraphs (3), (4) and (5) of this subdivision.
4. In addition to the cases provided for in this section, the
commissioner, when it is found upon investigation that any particular
trade, process of manufacture, occupation, or method of carrying on the
same, is dangerous or injurious to the health of minors, may adopt rules
prohibiting or regulating the employment of such minors therein. In
addition to the adoption of such rules, the commissioner may also adopt
such other rules and regulations as are determined necessary to carry
out the purposes of this section.
5. In addition to the rulemaking authority set forth in subdivision
four of this section, when it is found upon investigation that
employment on a farm is dangerous or injurious to the health of minors,
the commissioner may adopt rules prohibiting or regulating the
employment of such minors therein, which rules shall be in accordance
with and consistent with those promulgated by the United States
secretary of labor in this regard.
* § 135. Duties of employers. 1. The employer of any minor required to
have an employment certificate:
a. Shall, before employment begins, file at the place of the minor's
employment such certificate so that it may be readily accessible to any
person authorized by law to examine such document;
b. Shall, upon the termination of the minor's employment, return the
employment certificate to the minor;
c. (i) Shall, if the employer is engaged in a business of assigning
employees for temporary services at another establishment, and the
employer compensates the employee for such services rendered, keep on
file in his or her office the employment certificate and shall cause to
be delivered to each establishment where the child will perform his or
her services a true copy of such employment certificate. Such delivery
shall be deemed compliance with this section and sections one hundred
thirty-one and one hundred thirty-two of this article. The owner of each
establishment to which the child is assigned shall keep on file in his
or her office such copy of the employment certificate, which shall be
deemed compliance with this section, and shall return such copy to the
employer at the conclusion of the child's assignment. Such employer
shall note on the original employment certificate the existence of each
copy.
(ii) As used in this subdivision, the term "establishment" includes a
factory, mercantile establishment, business office, restaurant, hotel,
and any other trade, business or service.
2. The employer of any person claiming to be between eighteen and
twenty-five years of age who does not present an employment certificate
duly issued for him or her must require from such person, and furnish
upon demand to the commissioner or his or her authorized representative,
proof of the age of such person in the form of a driver's license or
other documentation issued by the government of the United States or of
any state located therein, or a certificate of age issued to such person
by an employment certificating official. Such proof of age or a legible
photocopy thereof, or an employment certificate, previously issued for
such person and on file in the place of his or her employment, shall be
conclusive evidence that the person has reached the age certified to
therein.
* NB Effective until May 9, 2027
* § 135. Database for employment of minors; employee registration;
minor employment certificates. 1. Creation of database. The department,
in consultation with the department of education, shall create and
maintain a database for the employment of minors. Except as otherwise
provided in this section, all information pertaining to any employer or
minor that is submitted to the department under this section shall be
confidential and shall not be accessible to the public. Nothing herein
shall prevent the commissioner from sharing such information for civil
or criminal law enforcement purposes.
2. Employer registration and renewal process. Any employer required to
be registered under this section shall provide the department with the
information set forth in this section, as well as any additional
information that the department may require, in the form and manner
prescribed by the department.
3. Employer registration and information. Every employer that hires,
employs, or otherwise permits any minor under the age of eighteen to
work for the employer within the state shall register in the database
and shall provide, in the form and manner prescribed by the department,
the following information:
(a) the name of the employer;
(b) the email address of the employer;
(c) any location of the employer's business operations within the
state, including any location where a minor will be working;
(d) the number and names of minors who are hired, employed, or
otherwise permitted to work for the employer;
(e) a certified statement from the employer that the employer is
hiring, employing, or otherwise permitting minors to work only in
positions for the employer as permitted by law, rule, or regulation in
order to ensure their health, safety, and well-being; and
(f) any other information deemed appropriate by the commissioner.
4. Employer recordkeeping. An employer that is required to be
registered under this section shall, before employment begins, file at
the place of the minor's employment such employment certificate or
permit so that it may be readily accessible to any person authorized by
law to examine such document. An employer's electronic access to such
employment certificate or permit in the database shall meet the
requirements of this subdivision.
5. Minor registration. Any minor under the age of eighteen who plans
to work for an employer within the state shall complete a registration
in the database for any employment certificate or permit. All
information pertaining to the minor shall be confidential and shall not
be accessible by the public. When the minor receives a job offer from an
employer, they must update their certificate or permit in the database
to reflect that employer in order for the certificate or permit to be
valid. If the minor plans to work for a different employer, or for an
employer in addition to the employer for which the minor first
registered, the minor shall update the minor's registration. The minor
shall be required to submit documentation for registration in the form
and manner prescribed by the department.
6. Issuance and revocation of employment certificate or permit. (a)
Any employment certificate or permit issued pursuant to part one of
article sixty-five of the education law shall be issued by the
commissioner electronically within the database. Any application for an
employment certificate or permit that is made pursuant to part one of
article sixty-five of the education law shall be made by a minor on a
form prescribed by the department.
(b) The chancellor in the city school district of the city of New
York, and elsewhere the superintendent of schools or the district
superintendent of schools within their respective jurisdictions, or a
principal of a nonpublic secondary school, may request that the
commissioner revoke a minor's employment certificate or permit. The
requestor shall use the database to file this request and electronically
upload, disclose, or otherwise provide additional information as
necessary. Additional information may relate to: (i) an evaluation of
the student's overall academic performance and past academic record;
(ii) an examination of the student's attendance record; (iii) the
willingness of the student to participate in a cooperative education
program, work study program, school to work program or any other
structured program which provides a student with an opportunity to earn
income while earning academic credit; (iv) such other factors as the
aforementioned officials identify; and (v) any material submitted by the
student. Upon review of information provided by schools or gathered on
their own, the commissioner may revoke the minor's employment
certificate or permit.
7. Records. The commissioner, in consultation with the commissioner of
education, shall provide a method by which authorized school employees
acting on behalf of a school district, board of cooperative educational
services, or nonpublic school may access the database for the purpose of
compliance with part one of article sixty-five of the education law. The
commissioner may share information with such authorized school employees
about registered minors and request information from such school
authorized employees about registered minors or minors applying for a
certificate or permit. Notwithstanding any law, rule, or regulation to
the contrary, a school district, board of cooperative educational
services, nonpublic secondary school and the education department shall
provide the commissioner with such records and information as requested
to fulfill the requirements of this section, provided that, as applied
to student educational records, such entity shall provide all
protections afforded to parents and persons in parental relationships,
or students where applicable, required under the family educational
rights and privacy act, 20 U.S.C. section 1232g, where applicable the
individuals with disabilities education act, sections fourteen hundred,
et seq. of title twenty of the United States code, and the federal
regulations implementing such statutes.
8. Regulations. The commissioner may prescribe regulations necessary
to carry out the provisions of this section.
* NB Effective May 9, 2027
Employment of minors fourteen to eighteen years of age under
physical disability. No employer shall employ a child whose employment
certificate or permit states that the occupation in which the child may
engage is limited because of his physical disability, for more than six
months from the date of issuance of said certificate or permit, nor in
any other occupation than that to which the employment of the child is
limited by the terms of the certificate or permit.
* § 137. Duty of commissioner to transmit information. The
commissioner shall transmit to the local superintendent of schools, on
or before the tenth day of each month, on blanks furnished by the state
education department, the names and home addresses of all children under
eighteen years of age found illegally employed during the preceding
month in the district subject to such superintendent.
* NB Repealed May 9, 2027
Employment of persons apparently under eighteen years of age.
1. If any person apparently under eighteen years of age is employed
without the certificate on file as required by law, in or in connection
with any employment to which the provisions of this article apply, the
commissioner may require the employer to cease employing the person or
file, within ten days after demand, evidence in the form required by the
education law for the issuance of such certificate that the person is
over the age for which the certificate is required.
2. If the employer fails to furnish such evidence within ten days
after demand, and thereafter employs the person, proof of the service of
the demand and of the failure to furnish such evidence shall be prima
facie evidence in any prosecution brought for a violation of this
article that such person is under the age for which such certificate is
required and is unlawfully employed.
* § 139. Physical examination of employed minors; cancellation of
employment certificate. 1. A medical inspector of the department of
labor shall require any minor sixteen or seventeen years of age employed
in or in connection with any trade, business, or service, to submit to a
physical examination by him if in his judgment such minor is physically
unfit for the work at which he is employed. The result shall be recorded
on a form filed with the commissioner.
2. If such minor fails to submit to such examination or if on
examination the inspector finds the minor physically unfit to be so
employed, he shall so report to the commissioner with his reasons
therefor and the commissioner, if he approves the report, shall then
cause the employment certificate issued in accordance with the education
law to be taken from the office of the employer and shall return the
same to the superintendent of schools recommending its cancellation.
* NB Repealed May 9, 2027
* § 140. Enforcement of violations relating to child performers, child
models, street trades, and newspaper carriers. The commissioner is
hereby authorized and empowered to prosecute violations of section 35.01
of the arts and cultural affairs law, relating to child performers,
section 35.05 of the arts and cultural affairs law, relating to child
models, section thirty-two hundred twenty-seven of the education law,
relating to street trades, and section thirty-two hundred twenty-eight
of the education law, relating to newspaper carriers.
* NB Effective until May 9, 2027
* § 140. Enforcement of violations relating to child performers and
child models. The commissioner is hereby authorized and empowered to
prosecute violations of section 35.01 of the arts and cultural affairs
law, relating to child performers, and section 35.05 of the arts and
cultural affairs law, relating to child models.
* NB Effective May 9, 2027
Civil penalties. 1. If the commissioner finds that an employer
has violated any provision of this article or of a rule or regulation
promulgated thereunder, the commissioner may by an order which shall
describe particularly the nature of the violation, assess the employer a
civil penalty of not more than ten thousand dollars for the first such
violation, at least two thousand but not more than twenty-five thousand
dollars for a second violation, and at least ten thousand but not more
than fifty-five thousand dollars for a third or subsequent violation.
Such penalty shall be paid to the commissioner for deposit in the
treasury of the state. In assessing the amount of the penalty, the
commissioner shall give due consideration to the size of the employer's
business, the good faith of the employer to believe that its conduct was
in compliance with the law, the gravity of the violation, the history of
previous violations and the failure to comply with record-keeping or
other requirements, provided, however, that where such violation
involves illegal employment during which a minor is seriously injured or
dies, such penalty shall be at least three thousand dollars but not more
than thirty thousand dollars for the first such violation, at least six
thousand but not more than seventy-five thousand dollars for the second
violation, and at least thirty thousand dollars but not more than one
hundred seventy-five thousand dollars for the third or subsequent
violation. For the purposes of this subdivision, a minor shall be deemed
to be seriously injured if such injury results in a permanent partial or
permanent total disability as determined by the workers' compensation
board.
2. Any order issued under subdivision one of this section shall be
deemed a final order of the commissioner and not subject to review by
any court or agency unless the employer files a petition with the
industrial board of appeals for a review of the order, pursuant to
section one hundred one of this chapter.
3. Provided that no proceeding for administrative or judicial review
as provided in this chapter shall then be pending and the time for
initiation of such proceeding shall have expired, the commissioner may
file with the county clerk of the county where the employer resides or
has a place of business the order of the commissioner or the decision of
the industrial board of appeals containing the amount of the civil
penalty. The filing of such order or decision shall have the full force
and effect of a judgment duly docketed in the office of such clerk. The
order or decision may be enforced by and in the name of the commissioner
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.
4. The civil penalty provided for in this section shall be in addition
to and may be imposed concurrently with any other remedy or penalty
provided for in this chapter.
Hours of work for minors fourteen and fifteen years of age. 1.
When school is in session. When school is in session, no minor fourteen
or fifteen years of age shall be employed:
a. More than three hours on any school day;
b. More than eight hours on any day when school is not in session;
c. More than eighteen hours a week;
d. More than six days a week; or
e. After seven o'clock in the evening or before seven o'clock in the
morning.
2. When school is not in session. When school is not in session, no
minor fourteen or fifteen years of age shall be employed:
a. More than eight hours a day;
b. More than six days a week;
c. More than forty hours a week; or
d. After seven o'clock in the evening or before seven o'clock in the
morning, except (i) between the twenty-first day of June and Labor day
of the same calendar year, when no such minor shall be employed after
nine o'clock in the evening or before seven o'clock in the morning; or
(ii) where such minor is employed as a junior counselor or
counselor-in-training at a camp for children during the months of June,
July and August.
3. Notwithstanding the provisions of subdivision one of this section,
a minor fourteen or fifteen years of age, who is enrolled when school is
in session in a supervised work study program approved by the
commissioner of education, when such program is in session, may not be
employed:
a. More than three hours on any school day;
b. More than eight hours on any day when school is not in session;
c. More than twenty-three hours a week;
d. More than six days a week; or
e. After seven o'clock in the evening or before seven o'clock in the
morning.
4. This section shall not apply to a newspaper carrier as defined in
section thirty-two hundred twenty-eight of the education law whose hours
of work are governed by such section, a farm laborer, a child performer
whose employment is governed by section 35.01 of the arts and cultural
affairs law and article four-A of this chapter, a child model whose
employment is governed by section 35.05 of the arts and cultural affairs
law, a bridge caddie at a bridge tournament or a baby sitter as defined
in section one hundred thirty-one of this chapter.
Posting of hours. 1. The employer shall make a schedule for
all minors employed by the employer, setting forth the hours of
beginning and stopping and the time allowed for meals, which shall be
kept conspicuously posted in each establishment where such persons are
employed.
A change in the schedule of hours worked by minors pursuant to the
provisions of this chapter shall be allowed provided that the posted
schedule reflects the change. Nothing herein shall be construed so as
to affect the limitations on hours worked by such minors as set forth
elsewhere in this chapter.
2. The presence of any person subject to this article at any hours
other than those stated in the above notice, or the failure to post such
notice, shall constitute prima facie evidence of a violation of this
article.
3. Where a person is employed in two or more establishments on the
same day or week, the total time of employment shall not exceed that
allowed per day or week in a single establishment.
4. Exception. If the commissioner finds that because of the nature of
the work in a factory it is practically impossible to fix the hours of
work weekly in advance, he may upon an application stating facts showing
the necessity therefor, grant a permit dispensing with the poster
required by this section. In every factory operating under such a
permit, a time book shall be kept in a form approved by the commissioner
showing the name and addresses of all employees subject to this
subdivision and the hours worked by each of them on each day. No person
shall knowingly make or suffer to be made a false entry in any such time
book. Such time book shall be kept for a period of six years and shall
be available upon request of the commissioner at the place of
employment. The permit shall be posted conspicuously in the factory, and
the commissioner may revoke the permit for failure to comply with the
provisions of this subdivision.
Criminal penalties. Any person who knowingly violates any
provision of this article and any officer or agent of a corporation who
knowingly permits the corporation to violate any such provisions shall
be guilty of a misdemeanor, and upon conviction therefor shall be
punished by a fine of not more than five hundred dollars or imprisonment
for not more than sixty days or by both such fine and imprisonment for a
first offense, or by a fine of not more than five thousand dollars or
imprisonment for not more than one year, or by both such fine and
imprisonment for a second or subsequent offense.
ARTICLE 4-A Employment and Education of Child Performers
Definitions. For the purpose of this article:
1. "Artistic or creative services" shall include, but are not limited
to, services as an actor, actress, dancer, musician, comedian, singer,
stunt-person, voice-over artist, runway or print model, or other
performer or entertainer, or as a songwriter, musical producer or
arranger, writer, director, producer, production executive,
choreographer, composer, conductor, or designer.
2. "Child performer" shall mean any child under the age of eighteen
who (a) resides in the state of New York and who agrees to render
artistic or creative services; or
(b) agrees to render artistic or creative services in the state of New
York.
3. "Child performer's employer" shall mean a person or entity which
employs a child performer to furnish artistic or creative services for a
fee either directly or through a third-party provider (loan-out company)
or an agency or service that provides artistic or creative services
(casting agency).
4. "Child performer trust account" shall mean an account established
for the benefit of a child performer in accordance with part seven of
article seven of the estates, powers and trusts law.
5. "Gross earnings" shall mean the total compensation prior to taxes,
deductions, or commissions payable to a child performer pursuant to a
contract or in the case of a third-party individual or personal services
corporation (loan-out company), the total compensation paid to the
third-party for the services of the child performer. However, where the
child performer is employed as a musician, singer, songwriter, musical
producer, or arranger it means the total compensation under the contract
including advances but excluding deductions to offset those advances or
other expenses incurred by the employer pursuant to the contract.
6. "Permit" shall refer to the documentation issued by the department
to a child performer pursuant to this article.
7. "Certificate of eligibility" shall refer to the documentation
issued by the department to an employer of a child performer pursuant to
this article.
8. "Employment schedule" shall mean the time that a child performer is
required to be present at the actual place of employment, excluding
travel.
Employment requirements. 1. (a) Notwithstanding the provisions
of section 35.01 of the arts and cultural affairs law, a child performer
may be employed, used or exhibited in any of the exhibitions, rehearsals
or performances set forth in subdivision one of section 35.01 of the
arts and cultural affairs law if a child performer permit has been
issued in accordance with the provisions of this section.
(b) A child performer shall be required to have an employment permit.
Employment permits for child performers shall be valid for one year from
the date of issuance.
(c) An application for a child performer permit shall be made on a
form prescribed by the department and shall contain such matters as the
department may deem to be necessary, including the following:
(i) the true and stage name and the age of the child, and the name and
address of his parent or guardian;
(ii) the written consent of the parent or guardian;
(iii) the evidence provided by the child performer each semester to
the department demonstrating that such child is maintaining satisfactory
academic performance as determined by the child performer's school of
enrollment pursuant to state law.
(d) At the time a child performer applies for an employment permit,
the commissioner shall inform the child performer of the child performer
trust requirements. The commissioner shall provide a notice in bold
twelve point type to read as follows: "NEW YORK STATE LAW REQUIRES
FIFTEEN PERCENT OF A CHILD PERFORMER'S EARNINGS TO BE PLACED IN TRUST IN
ACCORDANCE WITH PART 7 OF ARTICLE 7 OF THE ESTATES, POWERS AND TRUSTS
LAW. THE CHILD PERFORMER'S PARENTS OR GUARDIAN MUST ESTABLISH THE CHILD
PERFORMER TRUST ACCOUNT TO COMPLY WITH THIS REQUIREMENT. THE CHILD'S
PARENTS OR GUARDIAN MUST PROVIDE THE CHILD PERFORMER'S EMPLOYER WITH THE
INFORMATION NECESSARY TO TRANSFER THESE MONIES TO THE ACCOUNT. FAILURE
TO COMPLY WITH THIS REQUIREMENT WILL PREVENT THE DEPARTMENT OF LABOR
FROM RENEWING THE CHILD'S PERMIT TO WORK AS A CHILD PERFORMER."
(e) No permit shall allow a child to participate in an exhibition,
rehearsal or performance which is harmful to the welfare, development or
proper education of such child. A permit may be revoked by the
department for good cause.
2. Prior to employment of a child performer, every person, or agent or
officer of any entity employing a child performer shall receive a
certificate of eligibility to employ a child performer from the
department. Each application for initial registration shall be
accompanied by a fee determined by the commissioner in an amount
sufficient in the aggregate to defray the department's costs of
administering the registration program, provided, that such fee shall
not exceed three hundred fifty dollars for initial registration or two
hundred dollars for registration renewal. Companies that operate
theaters of four hundred ninety-nine seats or fewer shall pay no more
than two hundred dollars for an initial and renewal certificates. An
employers' certificate of eligibility shall be renewed every three
years.
3. Every person, or agent or officer, employing child performers,
either directly or indirectly through third persons, shall keep on file
all permits and certificates, either to work or to employ, issued under
this article or pursuant to the education law. The files shall be open
at all times to the inspection of the school attendance and probation
officers, the state board of education, and the department. No such
authority shall be denied entrance to such place of employment of child
performers. If such authority is denied entrance to such place of
employment, or if any violations of laws relating to the employment of
child performers are found to exist, such authority shall report the
violation to the department. Such report shall be made within
forty-eight hours and shall be in writing, setting forth the fact that
he or she has good cause to believe that such laws are being violated in
such place of employment and describing the nature of the violation.
4. (a) The work permit of a child performer in the entertainment
industry shall not be renewed, nor shall a subsequent work permit be
issued, unless the parent or guardian demonstrates to the department
that a child performer trust account in accordance with part seven of
article seven of the estates, powers and trusts law has been established
for the benefit of the child performer.
(b) The limitation set forth in paragraph (a) of this subdivision
shall not apply to the issuance of an employer's certificate of
eligibility or to a child performer covered by an employer's certificate
of eligibility who subsequently seeks to obtain an initial individual
permit to work.
5. Failure to produce any permit or certificate either to work or to
employ is prima facie evidence of the illegal employment of any child
performer whose permit or certificate is not produced. Proof that any
person was the manager or superintendent of any place of employment
subject to the provisions of this article at the time any child
performer is alleged to have been employed therein in violation thereof,
is prima facie evidence that the person employed or permitted the child
performer to work. The sworn statement of the commissioner, or his or
her deputy or agents, as to the age of any child performer affected by
this article is prima facie evidence of the age of such child.
Child performer advisory board to prevent eating disorders. 1.
The commissioner, in consultation with the commissioner of health and
the commissioner of mental health, shall establish a child performer
advisory board for the purpose of recommending guidelines for the
employment of child performers and models under the age of eighteen and
preventing eating disorders such as anorexia nervosa and bulimia nervosa
amongst such persons. The advisory board shall consist of at least
sixteen but no more than twenty members appointed by the commissioner,
and shall include: representatives of professional organizations or
unions representing child performers or models; employers representing
child performers or models; physicians, nutritionists and mental health
professionals with demonstrated expertise in treating patients with
eating disorders; at least one representative from each of the
comprehensive care centers for eating disorders established pursuant to
article thirty of the mental hygiene law; advocacy organizations working
to prevent and treat eating disorders; and other members deemed
necessary by the commissioner. In addition, the commissioner of health
and the commissioner of mental health, or their designees, shall serve
on the advisory board. The members of the advisory board shall receive
no compensation for their services but shall be reimbursed their actual
and necessary expenses incurred in the performance of their duties.
2. The advisory board is authorized to develop recommendations to the
commissioner establishing guidelines relating to the employment of child
performers and models under the age of eighteen for purposes of
preventing and accessing treatment for eating disorders such as anorexia
nervosa and bulimia nervosa amongst such child performers and models.
When developing such guidelines, the advisory board shall consider (a)
body mass index standards or weight and height standards, (b) employment
restrictions for persons diagnosed with or suspected of having an eating
disorder, (c) requiring medical or mental health screenings, by medical
or mental health professionals with demonstrated expertise in the
diagnosis and treatment of eating disorders, for persons suspected of
having an eating disorder, and (d) requiring referrals for treatment of
eating disorders.
3. The advisory board shall further develop recommendations for
educational and informational materials for such child performers and
models, their parents and/or guardians and their employers regarding
awareness and recognition of eating disorders, and referral and
treatment information of eating disorders such as anorexia nervosa and
bulimia nervosa.
4. The commissioner shall consider the recommendations developed by
the advisory board, which include employment guidelines and the
development of educational and informational materials pursuant to this
section, when adopting, promulgating, amending and rescinding the rules
and regulations necessary to carry out the provisions of this section.
The advisory board shall report to the commissioner regarding its
recommendations, including the guidelines, programs and findings
developed pursuant to this section.
Regulations. The commissioner shall promulgate such rules and
regulations as shall be necessary and proper to effectuate the purposes
and provisions of this article, including but not limited to the
promulgation of regulations determining the hours and conditions of work
necessary to safeguard the health, education, morals and general welfare
of child performers.
ARTICLE 5 Hours of Labor
TITLE 1 General
ARTICLE 6 Payment of Wages
Definitions. As used in this article:
1. "Wages" means the earnings of an employee for labor or services
rendered, regardless of whether the amount of earnings is determined on
a time, piece, commission or other basis. The term "wages" also includes
benefits or wage supplements as defined in section one hundred
ninety-eight-c of this article, except for the purposes of sections one
hundred ninety-one and one hundred ninety-two of this article.
2. "Employee" means any person employed for hire by an employer in any
employment, but with respect to the entirety of this article, except
sections one hundred ninety-three, one hundred ninety-six-b, one hundred
ninety-eight, and one hundred ninety-eight-b, shall not include any
person who has entered into a contract to play baseball at the minor
league level and who is compensated pursuant to the terms of a
collective bargaining agreement that expressly provides for the wages,
hours of work, and working conditions of employees.
3. "Employer" includes any person, corporation, limited liability
company, or association employing any individual in any occupation,
industry, trade, business or service. The term "employer" shall not
include a governmental agency.
4. "Manual worker" means a mechanic, workingman or laborer, but shall
not include any person who has entered into a contract to play baseball
at the minor league level and who is compensated pursuant to the terms
of a collective bargaining agreement that expressly provides for the
wages, hours of work, and working conditions of employees.
5. "Railroad worker" means any person employed by an employer who
operates a steam, electric or diesel surface railroad or is engaged in
the sleeping car business. The term "railroad worker" shall not include
a person employed in an executive capacity.
6. "Commission salesman" means any employee whose principal activity
is the selling of any goods, wares, merchandise, services, real estate,
securities, insurance or any article or thing and whose earnings are
based in whole or in part on commissions. The term "commission salesman"
does not include an employee whose principal activity is of a
supervisory, managerial, executive or administrative nature.
7. "Clerical and other worker" includes all employees not included in
subdivisions four, five and six of this section, except any person
employed in a bona fide executive, administrative or professional
capacity whose earnings are in excess of one thousand three hundred
dollars a week.
8. "Week" means a calendar week or a regularly established payroll
week. "Month" means a calendar month or a regularly established fiscal
month.
9. "Non-profitmaking organization" means a corporation, unincorporated
association, community chest, fund or foundation organized and operated
exclusively for religious, charitable or educational purposes, no part
of the net earnings of which inure to the benefit of any private
shareholder or individual.
Frequency of payments. 1. Every employer shall pay wages in
accordance with the following provisions:
a. Manual worker.--- (i) A manual worker shall be paid weekly and not
later than seven calendar days after the end of the week in which the
wages are earned; provided however that a manual worker employed by an
employer authorized by the commissioner pursuant to subparagraph (ii) of
this paragraph or by a non-profitmaking organization shall be paid in
accordance with the agreed terms of employment, but not less frequently
than semi-monthly.
(ii) The commissioner may authorize an employer which has in the three
years preceding the application employed an average of one thousand or
more persons in this state or has for one year preceding the application
employed an average of one thousand or more persons in this state and
has for three years preceding the application employed an average of
three thousand or more persons outside the state to pay less frequently
than weekly but not less frequently than semi-monthly if the employer
furnishes satisfactory proof to the commissioner of its continuing
ability to meet its payroll responsibilities. In making this
determination the commissioner shall consider the following: (A) the
employer's history meeting its payroll responsibilities in New York
state or if no such history in New York state is available, other
financial information, as requested by the commissioner, which will
assist the commissioner in determining the likelihood of the employer's
continuing ability to meet payroll responsibilities; (B) proof of the
employer's coverage for workers' compensation and disability; (C) proof
that there are no outstanding warrants of the department of taxation and
finance or the department of labor against the employer for failure to
remit state personal income tax withholdings or unemployment insurance
contributions; and (D) proof that the employer has a computerized record
keeping system for payroll which, at a minimum, specifies hours worked,
rate of pay, gross wages, deductions and date of pay for each employee.
If the employers' manual workers are represented by a labor
organization, the commissioner shall not grant an employer's application
for authorization under this subparagraph unless that labor organization
consents thereto.
Upon notice to the employer and an opportunity to be heard, the
commissioner may rescind such authorization whenever the commissioner
has determined, based upon the factors enumerated above, that the
employer is no longer able to meet its payroll responsibilities as
previously authorized.
b. Railroad worker.--- A railroad worker shall be paid on or before
Thursday of each week the wages earned during the seven-day period
ending on Tuesday of the preceding week; and provided further that at
the written request and notification of address by any employee, every
railroad corporation, with the exception of those commuter railroads
under the jurisdiction of the metropolitan transportation authority,
shall mail every check for wages of such employee via the United States
postal service, first class mail.
c. Commission salespersons.--A commission salesperson shall be paid
the wages, salary, drawing account, commissions and all other monies
earned or payable in accordance with the agreed terms of employment, but
not less frequently than once in each month and not later than the last
day of the month following the month in which they are earned; provided,
however, that if monthly or more frequent payment of wages, salary,
drawing accounts or commissions are substantial, then additional
compensation earned, including but not limited to extra or incentive
earnings, bonuses and special payments, may be paid less frequently than
once in each month, but in no event later than the time provided in the
employment agreement or compensation plan. The employer shall furnish a
commission salesperson, upon written request, a statement of earnings
paid or due and unpaid. The agreed terms of employment shall be reduced
to writing, signed by both the employer and the commission salesperson,
kept on file by the employer for a period not less than three years and
made available to the commissioner upon request. Such writing shall
include a description of how wages, salary, drawing account, commissions
and all other monies earned and payable shall be calculated. Where the
writing provides for a recoverable draw, the frequency of reconciliation
shall be included. Such writing shall also provide details pertinent to
payment of wages, salary, drawing account, commissions and all other
monies earned and payable in the case of termination of employment by
either party. The failure of an employer to produce such written terms
of employment, upon request of the commissioner, shall give rise to a
presumption that the terms of employment that the commissioned
salesperson has presented are the agreed terms of employment.
d. Clerical and other worker.--- A clerical and other worker shall be
paid the wages earned in accordance with the agreed terms of employment,
but not less frequently than semi-monthly, on regular pay days
designated in advance by the employer.
2. No employee shall be required as a condition of employment to
accept wages at periods other than as provided in this section.
3. If employment is terminated, the employer shall pay the wages not
later than the regular pay day for the pay period during which the
termination occurred, as established in accordance with the provisions
of this section. If requested by the employee, such wages shall be paid
by mail.
Definitions. For purposes of this article the term:
(a) "Commission" means compensation accruing to a sales representative
for payment by a principal, the rate of which is expressed as a
percentage of the dollar amount of wholesale orders or sales.
(b) "Earned commission" means a commission due for services or
merchandise which is due according to the terms of an applicable
contract or, when there is no applicable contractual provision, a
commission due for merchandise which has actually been delivered to,
accepted by, and paid for by the customer, notwithstanding that the
sales representative's services may have terminated.
(c) "Principal" means a person or company engaged in the business of
manufacturing, and who:
(1) Manufactures, produces, imports, or distributes a product for
wholesale;
(2) Contracts with a sales representative to solicit orders for the
product; and
(3) Compensates the sales representative in whole or in part by
commissions.
(d) "Sales representative" means a person or entity who solicits
orders in New York state and is not covered by subdivision six of
section one hundred ninety and paragraph (c) of subdivision one of
section one hundred ninety-one of this article because he or she is an
independent contractor, but does not include one who places orders for
his own account for resale.
Contracts with sales representatives. 1. When a principal
contracts with a sales representative to solicit wholesale orders within
this state, the contract shall be in writing and shall set forth the
method by which the commission is to be computed and paid.
2. The principal shall provide each sales representative with a signed
copy of the contract. The principal shall obtain a signed receipt for
the contract from each sales representative.
3. A sales representative during the course of the contract, shall be
paid the earned commission and all other monies earned or payable in
accordance with the agreed terms of the contract, but not later than
five business days after the commission has become earned.
Payment of sales commission. 1. When a contract between a
principal and a sales representative is terminated, all earned
commissions shall be paid within five business days after termination or
within five business days after they become due in the case of earned
commissions not due when the contract is terminated.
2. The earned commission shall be paid to the sales representative at
the usual place of payment unless the sales representative requests that
the commission be sent to him or her through the mails. If the
commissions are sent to the sales representative by mail, the earned
commissions shall be deemed to have been paid as of the date of their
postmark for purposes of this section.
3. A principal who fails to comply with the provisions of this section
concerning timely payment of all earned commissions shall be liable to
the sales representative in a civil action for double damages. The
prevailing party in any such action shall be entitled to an award of
reasonable attorney's fees, court costs, and disbursements.
Cash payment of wages. 1. No employer shall without the advance
written consent of any employee directly pay or deposit the net wage or
salary of such employee in a bank or other financial institution.
2. This section shall not apply to any person employed in a bona fide
executive, administrative, or professional capacity whose earnings are
in excess of one thousand three hundred dollars a week, nor to employees
working on a farm not connected with a factory.
Deductions from wages. * 1. No employer shall make any
deduction from the wages of an employee, except deductions which:
a. are made in accordance with the provisions of any law or any rule
or regulation issued by any governmental agency including regulations
promulgated under paragraph c and paragraph d of this subdivision; or
b. are expressly authorized in writing by the employee and are for the
benefit of the employee, provided that such authorization is voluntary
and only given following receipt by the employee of written notice of
all terms and conditions of the payment and/or its benefits and the
details of the manner in which deductions will be made. Whenever there
is a substantial change in the terms or conditions of the payment,
including but not limited to, any change in the amount of the deduction,
or a substantial change in the benefits of the deduction or the details
in the manner in which deductions shall be made, the employer shall, as
soon as practicable, but in each case before any increased deduction is
made on the employee's behalf, notify the employee prior to the
implementation of the change. Such authorization shall be kept on file
on the employer's premises for the period during which the employee is
employed by the employer and for six years after such employment ends.
Notwithstanding the foregoing, employee authorization for deductions
under this section may also be provided to the employer pursuant to the
terms of a collective bargaining agreement. Such authorized deductions
shall be limited to payments for:
(i) insurance premiums and prepaid legal plans;
(ii) pension or health and welfare benefits;
(iii) contributions to a bona fide charitable organization;
(iv) purchases made at events sponsored by a bona fide charitable
organization affiliated with the employer where at least twenty percent
of the profits from such event are being contributed to a bona fide
charitable organization;
(v) United States bonds;
(vi) dues or assessments to a labor organization;
(vii) discounted parking or discounted passes, tokens, fare cards,
vouchers, or other items that entitle the employee to use mass transit;
(viii) fitness center, health club, and/or gym membership dues;
(ix) cafeteria and vending machine purchases made at the employer's
place of business and purchases made at gift shops operated by the
employer, where the employer is a hospital, college, or university;
(x) pharmacy purchases made at the employer's place of business;
(xi) tuition, room, board, and fees for pre-school, nursery, primary,
secondary, and/or post-secondary educational institutions;
(xii) day care, before-school and after-school care expenses;
(xiii) payments for housing provided at no more than market rates by
non-profit hospitals or affiliates thereof; and
(xiv) similar payments for the benefit of the employee.
c. are related to recovery of an overpayment of wages where such
overpayment is due to a mathematical or other clerical error by the
employer. In making such recoveries, the employer shall comply with
regulations promulgated by the commissioner for this purpose, which
regulations shall include, but not be limited to, provisions governing:
the size of overpayments that may be covered by this section; the
timing, frequency, duration, and method of such recovery; limitations on
the periodic amount of such recovery; a requirement that notice be
provided to the employee prior to the commencement of such recovery; a
requirement that the employer implement a procedure for disputing the
amount of such overpayment or seeking to delay commencement of such
recovery; the terms and content of such a procedure and a requirement
that notice of the procedure for disputing the overpayment or seeking to
delay commencement of such recovery be provided to the employee prior to
the commencement of such recovery.
d. repayment of advances of salary or wages made by the employer to
the employee. Deductions to cover such repayments shall be made in
accordance with regulations promulgated by the commissioner for this
purpose, which regulations shall include, but not be limited to,
provisions governing: the timing, frequency, duration, and method of
such repayment; limitations on the periodic amount of such repayment; a
requirement that notice be provided to the employee prior to the
commencement of such repayment; a requirement that the employer
implement a procedure for disputing the amount of such repayment or
seeking to delay commencement of such repayment; the terms and content
of such a procedure and a requirement that notice of the procedure for
disputing the repayment or seeking to delay commencement of such
repayment be provided to the employee at the time the loan is made.
* NB Effective until November 6, 2028
* 1. No employer shall make any deduction from the wages of an
employee, except deductions which:
a. are made in accordance with the provisions of any law or any rule
or regulation issued by any governmental agency; or
b. are expressly authorized in writing by the employee and are for the
benefit of the employee; provided that such authorization is kept on
file on the employer's premises. Such authorized deductions shall be
limited to payments for insurance premiums, pension or health and
welfare benefits, contributions to charitable organizations, payments
for United States bonds, payments for dues or assessments to a labor
organization, and similar payments for the benefit of the employee.
* NB Effective November 6, 2028
* 2. Deductions made in conjunction with an employer sponsored pre-tax
contribution plan approved by the IRS or other local taxing authority,
including those falling within one or more of the categories set forth
in paragraph b of subdivision one of this section, shall be considered
to have been made in accordance with paragraph a of subdivision one of
this section.
* NB Effective until November 6, 2028
* 2. No employer shall make any charge against wages, or require an
employee to make any payment by separate transaction unless such charge
or payment is permitted as a deduction from wages under the provisions
of subdivision one of this section.
* NB Effective November 6, 2028
* 3. a. No employer shall make any charge against wages, or require an
employee to make any payment by separate transaction unless such charge
or payment is permitted as a deduction from wages under the provisions
of subdivision one of this section or is permitted or required under any
provision of a current collective bargaining agreement.
b. Notwithstanding the existence of employee authorization to make
deductions in accordance with subparagraphs (iv), (ix), and (x) of
paragraph b of subdivision one of this section and deductions determined
by the commissioner to be similar to such deductions in accordance with
subparagraph (xiv) of paragraph b of subdivision one of this section,
the total aggregate amount of such deductions for each pay period shall
be subject to the following limitations: (i) such aggregate amount shall
not exceed a maximum aggregate limit established by the employer for
each pay period; (ii) such aggregate amount shall not exceed a maximum
aggregate limit established by the employee, which limit may be for any
amount (in ten dollar increments) up to the maximum amount established
by the employer under subparagraph (i) of this paragraph; (iii) the
employer shall not permit any purchases within these categories of
deduction by the employee that exceed the aggregate limit established by
the employee or, if no limit has been set by the employee, the limit set
by the employer; (iv) the employee shall have access within the
workplace to current account information detailing individual
expenditures within these categories of deduction and a running total of
the amount that will be deducted from the employee's pay during the next
applicable pay period. Information shall be available in printed form or
capable of being printed should the employee wish to obtain a listing.
No employee may be charged any fee, directly or indirectly, for access
to, or printing of, such account information.
c. With the exception of wage deductions required or authorized in a
current existing collective bargaining agreement, an employee's
authorization for any and all wage deductions may be revoked in writing
at any time. The employer must cease the wage deduction for which the
employee has revoked authorization as soon as practicable, and, in no
event more than four pay periods or eight weeks after the authorization
has been withdrawn, whichever is sooner.
* NB Effective until November 6, 2028
* 3. Nothing in this section shall justify noncompliance with article
three-A of the personal property law relating to assignment of earnings,
nor with any other law applicable to deductions from wages.
* NB Effective November 6, 2028
* 4. Nothing in this section shall justify noncompliance with article
three-A of the personal property law relating to assignment of earnings,
with section two hundred twenty-one of this chapter relating to company
stores or with any other law applicable to deductions from wages.
* NB Effective until November 6, 2028
5. There is no exception to liability under this section for the
unauthorized failure to pay wages, benefits or wage supplements.
Differential in rate of pay because of protected class status
prohibited. 1. No employee with status within one or more protected
class or classes shall be paid a wage at a rate less than the rate at
which an employee without status within the same protected class or
classes in the same establishment is paid for: (a) equal work on a job
the performance of which requires equal skill, effort and
responsibility, and which is performed under similar working conditions,
or (b) substantially similar work, when viewed as a composite of skill,
effort, and responsibility, and performed under similar working
conditions; except where payment is made pursuant to a differential
based on:
(i) a seniority system;
(ii) a merit system;
(iii) a system which measures earnings by quantity or quality of
production; or
(iv) a bona fide factor other than status within one or more protected
class or classes, such as education, training, or experience. Such
factor: (A) shall not be based upon or derived from a differential in
compensation based on status within one or more protected class or
classes and (B) shall be job-related with respect to the position in
question and shall be consistent with business necessity. Such exception
under this paragraph shall not apply when the employee demonstrates (1)
that an employer uses a particular employment practice that causes a
disparate impact on the basis of status within one or more protected
class or classes, (2) that an alternative employment practice exists
that would serve the same business purpose and not produce such
differential, and (3) that the employer has refused to adopt such
alternative practice.
2. For the purpose of subdivision one of this section: (a) "business
necessity" shall be defined as a factor that bears a manifest
relationship to the employment in question, and (b) "protected class"
shall include age, race, creed, color, national origin, sexual
orientation, gender identity or expression, military status, sex,
disability, predisposing genetic characteristics, familial status,
marital status, or domestic violence victim status, and any employee
protected from discrimination pursuant to paragraphs (a), (b), and (c)
of subdivision one of section two hundred ninety-six and any intern
protected from discrimination pursuant to section two hundred
ninety-six-c of the executive law.
3. For the purposes of subdivision one of this section, employees
shall be deemed to work in the same establishment if the employees work
for the same employer at workplaces located in the same geographical
region, no larger than a county, taking into account population
distribution, economic activity, and/or the presence of municipalities.
4. (a) No employer shall prohibit an employee from inquiring about,
discussing, or disclosing the wages of such employee or another
employee.
(b) An employer may, in a written policy provided to all employees,
establish reasonable workplace and workday limitations on the time,
place and manner for inquires about, discussion of, or the disclosure of
wages. Such limitations shall be consistent with standards promulgated
by the commissioner and shall be consistent with all other state and
federal laws. Such limitations may include prohibiting an employee from
discussing or disclosing the wages of another employee without such
employee's prior permission.
(c) Nothing in this subdivision shall require an employee to disclose
his or her wages. The failure of an employee to adhere to such
reasonable limitations in such written policy shall be an affirmative
defense to any claims made against an employer under this subdivision,
provided that any adverse employment action taken by the employer was
for failure to adhere to such reasonable limitations and not for mere
inquiry, discussion or disclosure of wages in accordance with such
reasonable limitations in such written policy.
(d) This prohibition shall not apply to instances in which an employee
who has access to the wage information of other employees as a part of
such employee's essential job functions discloses the wages of such
other employees to individuals who do not otherwise have access to such
information, unless such disclosure is in response to a complaint or
charge, or in furtherance of an investigation, proceeding, hearing, or
action under this chapter, including an investigation conducted by the
employer.
(e) Nothing in this section shall be construed to limit the rights of
an employee provided under any other provision of law or collective
bargaining agreement.
Wage or salary history inquiries prohibited. 1. No employer
shall:
a. rely on the wage or salary history of an applicant in determining
whether to offer employment to such individual or in determining the
wages or salary for such individual.
b. orally or in writing seek, request, or require the wage or salary
history from an applicant or current employee as a condition to be
interviewed, or as a condition of continuing to be considered for an
offer of employment, or as a condition of employment or promotion.
c. orally or in writing seek, request, or require the wage or salary
history of an applicant or current employee from a current or former
employer, current or former employee, or agent of the applicant or
current employee's current or former employer, except as provided in
subdivision three of this section.
d. refuse to interview, hire, promote, otherwise employ, or otherwise
retaliate against an applicant or current employee based upon prior wage
or salary history.
e. refuse to interview, hire, promote, otherwise employ, or otherwise
retaliate against an applicant or current employee because such
applicant or current employee did not provide wage or salary history in
accordance with this section.
f. refuse to interview, hire, promote, otherwise employ, or otherwise
retaliate against an applicant or current or former employee because the
applicant or current or former employee filed a complaint with the
department alleging a violation of this section.
2. Nothing in this section shall prevent an applicant or current
employee from voluntarily, and without prompting, disclosing or
verifying wage or salary history, including but not limited to for the
purposes of negotiating wages or salary.
3. An employer may confirm wage or salary history only if at the time
an offer of employment with compensation is made, the applicant or
current employee responds to the offer by providing prior wage or salary
information to support a wage or salary higher than offered by the
employer.
4. For the purposes of this section, "employer" shall include but not
be limited to any person, corporation, limited liability company,
association, labor organization, or entity employing any individual in
any occupation, industry, trade, business or service, or any agent
thereof. For the purposes of this section, the term "employer" shall
also include the state, any political subdivision thereof, any public
authority or any other governmental entity or instrumentality thereof,
and any person, corporation, limited liability company, association or
entity acting as an employment agent, recruiter, or otherwise connecting
applicants with employers.
5. An applicant or current or former employee aggrieved by a violation
of this section may bring a civil action for compensation for any
damages sustained as a result of such violation on behalf of such
applicant, employee, or other persons similarly situated in any court of
competent jurisdiction. The court may award injunctive relief as well as
reasonable attorneys' fees to a plaintiff who prevails in a civil action
brought under this paragraph.
6. Nothing in this section shall be deemed to diminish the rights,
privileges, or remedies of any applicant or current or former employee
under any other law or regulation or under any collective bargaining
agreement or employment contract.
7. This section shall not supersede any federal, state or local law
enacted prior to the effective date of this section that requires the
disclosure or verification of salary history information to determine an
employee's compensation.
8. The department shall conduct a public awareness outreach campaign,
which shall include making information available on its website, and
otherwise informing employers of the provisions of this section.
Mandatory disclosure of compensation or range of
compensation. 1. a. No employer, employment agency, employee, or agent
thereof shall advertise a job, promotion, or transfer opportunity that
will physically be performed, at least in part, in the state of New
York, including a job, promotion, or transfer opportunity that will
physically be performed outside of New York but reports to a supervisor,
office, or other work site in New York without disclosing the following:
(i) the compensation or a range of compensation for such job,
promotion, or transfer opportunity; and
(ii) the job description for such job, promotion, or transfer
opportunity, if such description exists.
b. An employer, employment agency, employee, or agent thereof
advertising for a job, promotion, or transfer opportunity paid solely on
commission shall maintain compliance with subparagraph (i) of paragraph
a of this subdivision by disclosing a general statement that
compensation shall be based on commission.
2. No employer shall refuse to interview, hire, promote, employ or
otherwise retaliate against an applicant or current employee for
exercising any rights under this section.
3. The commissioner shall promulgate rules and regulations to
effectuate the provisions of this section.
4. The department shall conduct a public awareness outreach campaign,
which shall include making information available on its website and
otherwise informing employers of the provisions of this section.
5. a. Any person claiming to be aggrieved by a violation of this
section may file with the commissioner a complaint regarding such
alleged violation for an investigation of such complaint and statement
setting the appropriate remedy, if any, pursuant to the provisions of
section one hundred ninety-six-a of this article.
b. An employer who fails to comply with any requirement of this
section or any regulation published thereunder shall be deemed in
violation of this section and shall be subject to a civil penalty in
accordance with section two hundred eighteen of this chapter.
6. For the purposes of this section the following terms shall have the
following meanings:
a. "range of compensation" shall mean the minimum and maximum annual
salary or hourly range of compensation for a job, promotion, or transfer
opportunity that the employer in good faith believes to be accurate at
the time of the posting of an advertisement for such opportunity.
b. "employer" shall mean:
(i) any person, corporation, limited liability company, association,
labor organization or entity employing four or more employees in any
occupation, industry, trade, business or service, or any agent thereof;
and
(ii) any person, corporation, limited liability company, association
or entity acting as an employment agent or recruiter, or otherwise
connecting applicants with employers, provided that "employer" shall not
include a temporary help firm as such term is defined by subdivision
five of section nine hundred sixteen of this chapter.
c. "advertise" shall mean to make available to a pool of potential
applicants for internal or public viewing, including electronically, a
written description of an employment opportunity.
7. The provisions of this section shall not be construed or
interpreted to supersede or preempt any provisions of local law, rules,
or regulations.
Notice and record-keeping requirements. Every employer shall:
1. (a) provide his or her employees, in writing in English and in the
language identified by each employee as the primary language of such
employee, at the time of hiring, a notice containing the following
information: the rate or rates of pay and basis thereof, whether paid by
the hour, shift, day, week, salary, piece, commission, or other;
allowances, if any, claimed as part of the minimum wage, including tip,
meal, or lodging allowances; the benefit portion of the minimum rate of
home care aide total compensation as defined in section thirty-six
hundred fourteen-c of the public health law ("home care aide benefits"),
if applicable; prevailing wage supplements, if any, claimed as part of
any prevailing wage or similar requirement pursuant to article eight of
this chapter; the regular pay day designated by the employer in
accordance with section one hundred ninety-one of this article; the name
of the employer; any "doing business as" names used by the employer; the
physical address of the employer's main office or principal place of
business, and a mailing address if different; the telephone number of
the employer; plus such other information as the commissioner deems
material and necessary. Where such prevailing wage supplements are
claimed, or such home care aide benefits are provided, the notice shall
identify, for each type of supplement claimed or each type of home care
aide benefits provided: (i) the hourly rate claimed; (ii) the type of
supplement or type of home care aide benefits, including when
applicable, but not limited to, pension or healthcare; (iii) the names
and addresses of the person or entity providing such supplement or such
home care aide benefits; and (iv) the agreement, if any, requiring or
providing for such supplement or such home care aide benefits, together
with information on how copies of such agreements or summaries thereof
may be obtained by an employee. Each time the employer provides such
notice to an employee, the employer shall obtain from the employee a
signed and dated written acknowledgement, in English and in the primary
language of the employee, of receipt of this notice, which the employer
shall preserve and maintain for six years. Such acknowledgement shall
include an affirmation by the employee that the employee accurately
identified his or her primary language to the employer, and that the
notice provided by the employer to such employee pursuant to this
subdivision was in the language so identified or otherwise complied with
paragraph (c) of this subdivision, and shall conform to any additional
requirements established by the commissioner with regard to content and
form. For all employees who are not exempt from overtime compensation as
established in the commissioner's minimum wage orders or otherwise
provided by New York state law or regulation, the notice must state the
regular hourly rate and overtime rate of pay;
(b) The commissioner shall prepare templates that comply with the
requirements of paragraph (a) of this subdivision. Each such template
shall be dual-language, including English and one additional language.
The commissioner 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 commissioner shall deem relevant. All such templates shall be
made available to employers in such manner as determined by the
commissioner;
(c) When an employee identifies as his or her primary language a
language for which a template is not available from the commissioner,
the employer shall comply with this subdivision by providing that
employee an English-language notice or acknowledgment;
(d) An employer shall not be penalized for errors or omissions in the
non-English portions of any notice provided by the commissioner;
(e) The commissioner shall have discretion to waive or alter
requirements of paragraph (a) of this subdivision for temporary help
firms as defined in section nine hundred sixteen of this chapter.
2. notify his or her employees in writing of any changes to the
information set forth in subdivision one of this section, at least seven
calendar days prior to the time of such changes, unless such changes are
reflected on the wage statement furnished in accordance with subdivision
three of this section;
3. furnish each employee with a statement with every payment of wages,
listing the following: the dates of work covered by that payment of
wages; name of employee; name of employer; address and phone number of
employer; rate or rates of pay and basis thereof, whether paid by the
hour, shift, day, week, salary, piece, commission, or other; gross
wages; deductions; allowances, if any, claimed as part of the minimum
wage; the benefit portion of the minimum rate of home care aide total
compensation as defined in section thirty-six hundred fourteen-c of the
public health law ("home care aide benefits"), if applicable; prevailing
wage supplements, if any, claimed as part of any prevailing wage or
similar requirement pursuant to article eight of this chapter; and net
wages. Where such prevailing wage supplements are claimed, or such home
care aide benefits are provided, the statement shall either: (i)
identify the type of each supplement claimed, or the type of each home
care aide benefits provided, and the hourly rate for each; or (ii) be
accompanied by a copy of the applicable notice required under
subdivisions one and two of this section. For all employees who are not
exempt from overtime compensation as established in the commissioner's
minimum wage orders or otherwise provided by New York state law or
regulation, the statement shall include the regular hourly rate or rates
of pay; the overtime rate or rates of pay; the number of regular hours
worked, and the number of overtime hours worked. For all employees paid
a piece rate, the statement shall include the applicable piece rate or
rates of pay and number of pieces completed at each piece rate. Upon the
request of an employee, an employer shall furnish an explanation in
writing of how such wages were computed;
3-a. in addition, every railroad corporation shall furnish each
employee with a statement with every payment of wages listing accrued
total earnings and taxes to date and further furnish said employee at
the same time with a separate listing of his daily wages and how they
were computed;
4. establish, maintain and preserve for not less than six years
contemporaneous, true, and accurate payroll records showing for each
week worked the hours worked; the rate or rates of pay and basis
thereof, whether paid by the hour, shift, day, week, salary, piece,
commission, or other; gross wages; deductions; allowances, if any,
claimed as part of the minimum wage; amount of sick leave provided to
each employee; the benefit portion of the minimum rate of home care aide
total compensation as defined in section thirty-six hundred fourteen-c
of the public health law ("home care aide benefits"), if applicable;
prevailing wage supplements, if any, claimed as part of any prevailing
wage or similar requirement pursuant to article eight of this chapter;
and net wages for each employee. Where such prevailing wage supplements
are claimed, or such home care aide benefits are provided, the payroll
records shall include copies of all notices required by subdivisions one
and two of this section. For all employees who are not exempt from
overtime compensation as established in the commissioner's minimum wage
orders or otherwise provided by New York state law or regulation, the
payroll records shall include the regular hourly rate or rates of pay,
the overtime rate or rates of pay, the number of regular hours worked,
and the number of overtime hours worked. For all employees paid a piece
rate, the payroll records shall include the applicable piece rate or
rates of pay and number of pieces completed at each piece rate;
5. notify his employees in writing or by publicly posting the
employer's policy on sick leave, vacation, personal leave, holidays and
hours.
6. notify any employee terminated from employment, in writing, of the
exact date of such termination as well as the exact date of cancellation
of employee benefits connected with such termination. In no case shall
notice of such termination be provided more than five working days after
the date of such termination. Failure to notify an employee of
cancellation of accident or health insurance subjects an employer to an
additional penalty pursuant to section two hundred seventeen of this
chapter.
Powers of commissioner. 1. In addition to the powers of the
commissioner specified in other sections of this chapter, the
commissioner shall have the following duties, powers and authority:
a. He or she shall investigate and attempt to adjust equitably
controversies between employers and employees relating to this article,
or article five, seven, nineteen or nineteen-A of this chapter.
b. He or she may take assignments of claims for wages under this
chapter from employees or third parties in trust for such employees or
for the benefit of various funds for such employees. All such
assignments shall run to the commissioner and his or her successor in
office. The commissioner may sue employers on wage claims thus assigned,
with the benefits and subject to the provisions of existing law applying
to actions by employees for collection of wages. He or she may join in a
single action any number of wage claims against the same employer.
c. He or she may institute proceedings on account of any criminal
violation of any provision of this article, or article five, seven,
nineteen or nineteen-A of this chapter.
d. If it shall appear to him or her that any employer has been
convicted of a violation of any provision of this article or article
nineteen or nineteen-A of this chapter or that any order to comply
issued against an employer under this chapter remains unsatisfied for a
period of ten days after the time to appeal therefrom has expired, and
that no appeal therefrom is then pending, the commissioner may require
such employer to deposit with him or her a bond in such sum as he or she
may deem sufficient and adequate in the circumstances, together with two
or more sureties or a duly authorized surety company, to be approved by
the commissioner. The bond shall be payable to the commissioner and
shall be conditioned that the employer will, for a definite future
period, not exceeding two years, pay his or her employees in accordance
with the provisions of this article or article nineteen or nineteen-A of
this chapter, and shall be further conditioned upon the payment by the
employer of any amounts due pursuant to an order to comply or judgment
against such employer pursuant to the provisions of this article or
article nineteen or nineteen-A of this chapter.
If within ten days after demand for such bond, which demand may be
made by certified or registered mail, such employer shall fail to
deposit the same, the commissioner may bring an action in the name and
on behalf of the people of the state of New York against such employer
in the supreme court to compel such employer to furnish such a bond or
to cease doing business until he or she has done so. The employer shall
have the burden of proving that either such a bond is unnecessary or
that the amount demanded is excessive. If the court finds that there is
just cause for requiring the bond and that same is reasonably necessary
or proper to secure prompt payment of the wages of the employees of such
employer and his or her compliance with the provisions of this article
or article nineteen or nineteen-A of this chapter, the court may enjoin
such employer and such other person or persons as may have been or may
be concerned with or in any way participating in the failure to pay the
wages resulting in the conviction or order to comply as aforesaid, from
doing business until the requirement is met and make other and further
orders appropriate to compel compliance with the requirement.
If any order to comply issued against an employer under this article
or article nineteen or nineteen-A of this chapter remains unsatisfied
for a period of ten days after the time to appeal therefrom has expired,
and that no appeal therefrom is then pending, the commissioner may
require the employer to provide an accounting of assets of the employer,
including but not limited to, a list of all bank accounts, accounts
receivable, personal property, real property, automobiles or other
vehicles, and any other assets, in a form and manner as prescribed by
the commissioner. An employer shall provide such amended accountings of
assets as the commissioner shall order. If within ten days after demand
for such an accounting of assets, which demand may be made by certified
or registered mail, such employer shall fail to provide same, or if the
employer fails to provide an amended accounting as required under this
section, the commissioner may bring an action in the name and on behalf
of the people of the state of New York against such employer in the
supreme court to compel such employer to furnish the accounting and pay
a civil penalty of no more than ten thousand dollars.
e. He or she is hereby authorized and empowered to enter into
reciprocal agreements with the labor department or corresponding agency
of any other state or with the person, board, officer, or commission
authorized to act on behalf of such department or agency, for the
collection in such other states of claims and judgments for wages based
upon claims assigned to the commissioner.
The commissioner may, to the extent provided for by any reciprocal
agreement entered into by law or with any agency of another state as
herein provided, maintain actions in the courts of such other state for
the collection of claims and judgments for wages and may assign such
claims and judgments to the labor department or agency of such other
state for collection to the extent that such an assignment may be
permitted or provided for by the law of such state or by reciprocal
agreement.
The commissioner may, upon the written consent of the labor department
or other corresponding agency of any other state or of any person,
board, officer or commission of such state authorized to act on behalf
of such labor department or corresponding agency, maintain actions in
the courts of this state upon assigned claims and judgments for wages
arising in such other state in the same manner and to the same extent
that such actions by the commissioner are authorized when arising in
this state. However, such actions may be maintained only in cases where
such other state by law or reciprocal agreement extends a like comity to
cases arising in this state.
2. Nothing in this section shall be construed as requiring the
commissioner in every instance to investigate and attempt to adjust
controversies, or to take assignments of wage claims, or to institute
criminal prosecutions for any violation under this article or article
five, seven, nineteen or nineteen-A of this chapter, but he or she shall
be deemed vested with discretion in such matters.
Complaints by employees to commissioner. (a) Any employee;
person or organization acting on the employee's behalf; or the
recognized and certified collective bargaining agent acting on the
employee's behalf, may file with the commissioner a complaint regarding
a violation of this article, article five, seven, nineteen, or
nineteen-A of this chapter for an investigation of such complaint and
statement setting the appropriate remedy, if any. The commissioner shall
keep the names of employees that are the subject of an investigation
confidential until such time that disclosure is necessary for resolution
of an investigation or a complaint. Failure of an employer to keep
adequate records or provide statements of wages to employees as required
under this chapter, in addition to exposing such employer to penalties
authorized under subdivision one of section two hundred eighteen of this
chapter, shall not operate as a bar to filing of a complaint by an
employee. In such a case the employer in violation shall bear the burden
of proving that the complaining employee was paid wages, benefits and
wage supplements.
(b) Any employee, or the recognized and certified collective
bargaining agent acting on the employee's behalf, contractor, or the
recognized and certified labor organization with which the contractor
has executed a collective bargaining agreement covering wages, benefits
and supplements, may file with the commissioner a complaint regarding an
alleged violation of this article or article nineteen of this chapter
occasioned by another person, corporation, employer or entities in
violation of article thirty-five-E of the general business law for an
investigation of such complaint and statement setting the appropriate
remedy, if any.
Sick leave requirements. 1. Every employer shall be required
to provide its employees with sick leave as follows:
a. For employers with four or fewer employees in any calendar year,
each employee shall be provided with up to forty hours of unpaid sick
leave in each calendar year; provided, however, an employer that employs
four or fewer employees in any calendar year and that has a net income
of greater than one million dollars in the previous tax year shall
provide each employee with up to forty hours of paid sick leave pursuant
to this section;
b. For employers with between five and ninety-nine employees in any
calendar year, each employee shall be provided with up to forty hours of
paid sick leave in each calendar year; and
c. For employers with one hundred or more employees in any calendar
year, each employee shall be provided with up to fifty-six hours of paid
sick leave each calendar year.
For purposes of determining the number of employees pursuant to this
subdivision, a calendar year shall mean the twelve-month period from
January first through December thirty-first. For all other purposes, a
calendar year shall either mean the twelve-month period from January
first through December thirty-first, or a regular and consecutive
twelve-month period, as determined by an employer.
2. Nothing in this section shall be construed to prohibit or prevent
an employer from providing an amount of sick leave, paid or unpaid, or
paid prenatal personal leave which is in excess of the requirements set
forth in subdivision one and subdivision four-a of this section, or from
adopting a paid leave policy that provides additional benefits to
employees. An employer may elect to provide its employees with the total
amount of sick leave required to fulfill its obligations pursuant to
subdivision one of this section at the beginning of the calendar year,
provided, however that no employer shall be permitted to reduce or
revoke any such sick leave based on the number of hours actually worked
by an employee during the calendar year if such employer elects pursuant
to this subdivision.
3. Employees shall accrue sick leave at a rate of not less than one
hour per every thirty hours worked, beginning at the commencement of
employment or the effective date of this section, whichever is later,
subject to the use and accrual limitations set forth in this section.
4. a. On and after January first, two thousand twenty-one and upon the
oral or written request of an employee, an employer shall provide
accrued sick leave for the following purposes:
(i) for a mental or physical illness, injury, or health condition of
such employee or such employee's family member, regardless of whether
such illness, injury, or health condition has been diagnosed or requires
medical care at the time that such employee requests such leave;
(ii) for the diagnosis, care, or treatment of a mental or physical
illness, injury or health condition of, or need for medical diagnosis
of, or preventive care for, such employee or such employee's family
member; or
(iii) for an absence from work due to any of the following reasons
when the employee or employee's family member has been the victim of
domestic violence pursuant to subdivision thirty-four of section two
hundred ninety-two of the executive law, a family offense, sexual
offense, stalking, or human trafficking:
(a) to obtain services from a domestic violence shelter, rape crisis
center, or other services program;
(b) to participate in safety planning, temporarily or permanently
relocate, or take other actions to increase the safety of the employee
or employee's family members;
(c) to meet with an attorney or other social services provider to
obtain information and advice on, and prepare for or participate in any
criminal or civil proceeding;
(d) to file a complaint or domestic incident report with law
enforcement;
(e) to meet with a district attorney's office;
(f) to enroll children in a new school; or
(g) to take any other actions necessary to ensure the health or safety
of the employee or the employee's family member or to protect those who
associate or work with the employee.
For purposes of this subdivision, the reasons outlined above in
subparagraph (a) through (g) must be related to the domestic violence,
family offense, sexual offense, stalking, or human trafficking. Provided
further that a person who has committed such domestic violence, family
offense, sexual offense, stalking, or human trafficking shall not be
eligible for leave under this subdivision for situations in which the
person committed such offense and was not a victim, notwithstanding any
family relationship.
b. For purposes of this section, "family member" shall mean an
employee's child, spouse, domestic partner, parent, sibling, grandchild
or grandparent; and the child or parent of an employee's spouse or
domestic partner. "Parent" shall mean a biological, foster, step- or
adoptive parent, or a legal guardian of an employee, or a person who
stood in loco parentis when the employee was a minor child. "Child"
shall mean a biological, adopted or foster child, a legal ward, or a
child of an employee standing in loco parentis.
4-a. In addition to the sick leave provided for in this section, on
and after January first, two thousand twenty-five, every employer shall
be required to provide to its employees twenty hours of paid prenatal
personal leave during any fifty-two week calendar period. Paid prenatal
personal leave shall mean leave taken for the health care services
received by an employee during their pregnancy or related to such
pregnancy, including physical examinations, medical procedures,
monitoring and testing, and discussions with a health care provider
related to the pregnancy. Paid prenatal personal leave may be taken in
hourly increments. Benefits for paid prenatal personal leave shall be
paid in hourly installments. Employees shall receive compensation at the
employee's regular rate of pay, or the applicable minimum wage
established pursuant to section six hundred fifty-two of this chapter,
whichever is greater, for the use of paid prenatal personal leave.
Nothing in this section shall be construed to require an employer to pay
an employee for unused paid prenatal leave upon such employee's
termination, resignation, retirement, or other separation from
employment.
5. a. An employer may not require the disclosure of confidential
information relating to a mental or physical illness, injury, or health
condition of such employee or such employee's family member, or
information relating to absence from work due to domestic violence, a
sexual offense, stalking, or human trafficking, as a condition of
providing sick leave or paid prenatal personal leave pursuant to this
section.
b. An employer may set a reasonable minimum increment for the use of
sick leave which shall not exceed four hours. Employees shall receive
compensation at his or her regular rate of pay, or the applicable
minimum wage established pursuant to section six hundred fifty-two of
this chapter, whichever is greater, for the use of paid sick leave.
6. An employee's unused sick leave shall be carried over to the
following calendar year, provided, however, that: (i) an employer with
fewer than one hundred employees may limit the use of sick leave to
forty hours per calendar year; and (ii) an employer with one hundred or
more employees may limit the use of sick leave to fifty-six hours per
calendar year. Nothing in this section shall be construed to require an
employer to pay an employee for unused sick leave upon such employee's
termination, resignation, retirement, or other separation from
employment.
7. No employer or their agent, or the officer or agent of any
corporation, partnership, or limited liability company, or any other
person, shall discharge, threaten, penalize, or in any other manner
discriminate or retaliate against any employee because such employee has
exercised their rights afforded under this section, including, but not
limited to, requesting sick leave or paid prenatal leave and using sick
leave or paid prenatal leave, consistent with the provisions of section
two hundred fifteen of this chapter.
8. An employer shall not be required to provide any additional sick
leave pursuant to this section if the employer has adopted a sick leave
policy or time off policy that provides employees with an amount of
leave which meets or exceeds the requirements set forth in subdivision
one of this section and satisfies the accrual, carryover, and use
requirements of this section.
9. Nothing in this section shall be construed to: a. prohibit a
collective bargaining agreement entered into, on or after the effective
date of this section from, in lieu of the leave provided for in this
section, providing a comparable benefit for the employees covered by
such agreement in the form of paid days off; such paid days off shall be
in the form of leave, compensation, other employee benefits, or some
combination thereof; or
b. impede, infringe, or diminish the ability of a certified collective
bargaining agent to negotiate the terms and conditions of sick leave
different from the provisions of this section.
Provided, however, that in the case of either paragraph a or b of this
subdivision, the agreement must specifically acknowledge the provisions
of this section.
10. Upon return to work following any sick leave or paid prenatal
leave taken pursuant to this section, an employee shall be restored by
their employer to the position of employment held by such employee prior
to any sick leave or paid prenatal leave taken pursuant to this section
with the same pay and other terms and conditions of employment.
11. Upon the oral or written request of an employee, an employer shall
provide a summary of the amounts of sick leave accrued and used by such
employee in the current calendar year and/or any previous calendar year.
The employer shall provide such information to the employee within three
business days of such request.
12. Nothing in this section shall be construed to prevent a city with
a population of one million or more from enacting and enforcing local
laws or ordinances which meet or exceed the standard or requirements for
minimum hour and use set forth in this section, as determined by the
commissioner. Any paid sick leave benefits provided by a sick leave
program enforced by a municipal corporation in effect as of the
effective date of this section shall not be diminished or limited as a
result of the enactment of this section.
13. The commissioner shall have authority to adopt regulations and
issue guidance to effectuate any of the provisions of this section.
Employers shall comply with regulations and guidance promulgated by the
commissioner for this purpose which may include but are not limited to
standards for the accrual, use, payment, and employee eligibility of
sick leave.
14. The department shall conduct a public awareness outreach campaign
which shall include making information available on its website and
otherwise informing employers and employees of the provisions of this
section.
Gratuities. No employer or his agent or an officer or agent
of any corporation, or any other person shall demand or accept, directly
or indirectly, any part of the gratuities, received by an employee, or
retain any part of a gratuity or of any charge purported to be a
gratuity for an employee. This provision shall not apply to the checking
of hats, coats or other apparel. Nothing in this subdivision shall be
construed as affecting the allowances from the minimum wage for
gratuities in the amount determined in accordance with the provisions of
article nineteen of this chapter nor as affecting practices in
connection with banquets and other special functions where a fixed
percentage of the patron's bill is added for gratuities which are
distributed to employees, nor to the sharing of tips by a waiter with a
busboy or similar employee.
* § 196-e. Construction industry reporting pay provisions. 1.
Notwithstanding any law, rule or regulation to the contrary, an employee
engaged in construction, as defined in subdivision one of section eight
hundred sixty-one-b of this chapter, who by request or permission of an
employer reports for work on any day shall be paid for at least four
hours, or the number of hours in the regularly scheduled shift,
whichever is less, at the employee's promised hourly wage.
2. Notwithstanding any law, rule or regulation to the contrary, an
employee engaged in construction, as defined in subdivision one of
section eight hundred sixty-one-b of this chapter, who by request or
permission of an employer is scheduled to report for work on any day
shall be paid for two hours at the employee's promised hourly wage when
such scheduled shift is cancelled on less than twelve hours' notice to
the employee. Payments owed to an employee pursuant to this section
shall be deemed wages as defined in this article.
* NB Effective December 8, 2026
Civil penalty. Any employer who fails to pay the wages of his
employees or shall differentiate in rate of pay because of protected
class status, as provided in this article, shall forfeit to the people
of the state the sum of five hundred dollars for each such failure, to
be recovered by the commissioner in any legal action necessary,
including administrative action or a civil action.
Costs, remedies. 1. In any action instituted upon a wage claim
by an employee or the commissioner in which the employee prevails, the
court may allow such employee in addition to ordinary costs, a
reasonable sum, not exceeding fifty dollars for expenses which may be
taxed as costs. No assignee of a wage claim, except the commissioner,
shall be benefited by this provision.
1-a. On behalf of any employee paid less than the wage to which they
are entitled under the provisions of this article, the commissioner may
bring any legal action necessary, including administrative action, to
collect such claim and as part of such legal action, in addition to any
other remedies and penalties otherwise available under this article, the
commissioner shall assess against the employer the full amount of any
such underpayment, and an additional amount as liquidated damages,
unless the employer proves a good faith basis for believing that its
underpayment of wages was in compliance with the law. Liquidated damages
shall be calculated by the commissioner as no more than one hundred
percent of the total amount of wages found to be due, except such
liquidated damages may be up to three hundred percent of the total
amount of the wages found to be due for a willful violation of section
one hundred ninety-four of this article. In any action instituted in the
courts upon a wage claim by an employee or the commissioner in which the
employee prevails, the court shall allow such employee to recover the
full amount of any underpayment, all reasonable attorney's fees,
prejudgment interest as required under the civil practice law and rules,
and, unless the employer proves a good faith basis to believe that its
underpayment of wages was in compliance with the law, an additional
amount as liquidated damages equal to one hundred percent of the total
amount of the wages found to be due, except such liquidated damages may
be up to three hundred percent of the total amount of the wages found to
be due for a willful violation of section one hundred ninety-four of
this article. Notwithstanding the provisions of this subdivision,
liquidated damages shall not be applicable to violations of paragraph a
of subdivision one of section one hundred ninety-one of this article
where the employer paid the employee wages on a regular payday, no less
frequently than semi-monthly. Such violations shall be subject to
damages as follows:
(i) no more than one hundred percent of the lost interest found to be
due for the delayed payment of wages calculated using a daily interest
rate for each day payment is late based on the annual rate of interest
then in effect, as prescribed by the superintendent of financial
services pursuant to section fourteen-a of the banking law for the
employer's first violation; or
(ii) for conduct occurring after the effective date of this paragraph,
liquidated damages equal to one hundred percent of the total amount of
wages found to be due in violation of paragraph a of subdivision one of
section one hundred ninety-one of this article for any employer who,
after the effective date of this paragraph, has been subject to one or
more previous findings and orders for violations of paragraph a of
subdivision one of section one hundred ninety-one of this article for
which no proceeding for administrative or judicial review as provided in
this chapter is pending and the time for initiation of such proceeding
shall have expired and relating to employees performing the same work.
For purposes of this subdivision, an order shall mean a single final
order or determination made by the commissioner or a court of competent
jurisdiction, regardless of the number of employees or the time period
that was subject to such order.
1-b. If any employee is not provided within ten business days of his
or her first day of employment a notice as required by subdivision one
of section one hundred ninety-five of this article, he or she may
recover in a civil action damages of fifty dollars for each work day
that the violations occurred or continue to occur, but not to exceed a
total of five thousand dollars, together with costs and reasonable
attorney's fees. The court may also award other relief, including
injunctive and declaratory relief, that the court in its discretion
deems necessary or appropriate.
On behalf of any employee not provided a notice as required by
subdivision one of section one hundred ninety-five of this article, the
commissioner may bring any legal action necessary, including
administrative action, to collect such claim, and as part of such legal
action, in addition to any other remedies and penalties otherwise
available under this article, the commissioner may assess against the
employer damages of fifty dollars for each work day that the violations
occurred or continue to occur, but not to exceed a total of five
thousand dollars. In any action or administrative proceeding to recover
damages for violation of paragraph (a) of subdivision one of section one
hundred ninety-five of this article, it shall be an affirmative defense
that (i) the employer made complete and timely payment of all wages due
pursuant to this article or article nineteen or article nineteen-A of
this chapter to the employee who was not provided notice as required by
subdivision one of section one hundred ninety-five of this article or
(ii) the employer reasonably believed in good faith that it was not
required to provide the employee with notice pursuant to subdivision one
of section one hundred ninety-five of this article.
1-d. If any employee is not provided a statement or statements as
required by subdivision three of section one hundred ninety-five of this
article, he or she shall recover in a civil action damages of two
hundred fifty dollars for each work day that the violations occurred or
continue to occur, but not to exceed a total of five thousand dollars,
together with costs and reasonable attorney's fees. The court may also
award other relief, including injunctive and declaratory relief, that
the court in its discretion deems necessary or appropriate.
On behalf of any employee not provided a statement as required by
subdivision three of section one hundred ninety-five of this article,
the commissioner may bring any legal action necessary, including
administrative action, to collect such claim, and as part of such legal
action, in addition to any other remedies and penalties otherwise
available under this article, the commissioner may assess against the
employer damages of two hundred fifty dollars for each work day that the
violations occurred or continue to occur, but not to exceed a total of
five thousand dollars. In any action or administrative proceeding to
recover damages for violation of subdivision three of section one
hundred ninety-five of this article, it shall be an affirmative defense
that (i) the employer made complete and timely payment of all wages due
pursuant to this article or articles nineteen or nineteen-A of this
chapter to the employee who was not provided statements as required by
subdivision three of section one hundred ninety-five of this article or
(ii) the employer reasonably believed in good faith that it was not
required to provide the employee with statements pursuant to paragraph
(e) of subdivision one of section one hundred ninety-five of this
article.
2. The remedies provided by this article may be enforced
simultaneously or consecutively so far as not inconsistent with each
other.
3. Notwithstanding any other provision of law, an action to recover
upon a liability imposed by this article must be commenced within six
years. The statute of limitations shall be tolled from the date an
employee files a complaint with the commissioner or the commissioner
commences an investigation, whichever is earlier, until an order to
comply issued by the commissioner becomes final, or where the
commissioner does not issue an order, until the date on which the
commissioner notifies the complainant that the investigation has
concluded. Investigation by the commissioner shall not be a prerequisite
to nor a bar against a person bringing a civil action under this
section. All employees shall have the right to recover full wages,
benefits and wage supplements and liquidated damages accrued during the
six years previous to the commencing of such action, whether such action
is instituted by the employee or by the commissioner. There is no
exception to liability under this section for the unauthorized failure
to pay wages, benefits or wage supplements.
4. In any civil action by an employee or by the commissioner, the
employee or commissioner shall have the right to collect attorney's fees
and costs incurred in enforcing any court judgment. Any judgment or
court order awarding remedies under this section shall provide that if
any amounts remain unpaid upon the expiration of ninety days following
issuance of judgment, or ninety days after expiration of the time to
appeal and no appeal is then pending, whichever is later, the total
amount of judgment shall automatically increase by fifteen percent.
Criminal penalties. 1. Every employer who does not pay the
wages of all of his employees in accordance with the provisions of this
chapter, and the officers and agents of any corporation, partnership, or
limited liability company who knowingly permit the corporation,
partnership, or limited liability company to violate this chapter by
failing to pay the wages of any of its employees in accordance with the
provisions thereof, shall be guilty of a misdemeanor for the first
offense and upon conviction therefor shall be fined not less than five
hundred nor more than twenty thousand dollars or imprisoned for not more
than one year, and, in the event that any second or subsequent offense
occurs within six years of the date of conviction for a prior offense,
shall be guilty of a felony for the second or subsequent offense, and
upon conviction therefor, shall be fined not less than five hundred nor
more than twenty thousand dollars or imprisoned for not more than one
year plus one day, or punished by both such fine and imprisonment, for
each such offense. An indictment of a person or corporation operating a
steam surface railroad for an offense specified in this section may be
found and tried in any county within the state in which such railroad
ran at the time of such offense.
2. Every employer who violates or fails to comply with the
requirements of subdivision four of section one hundred ninety-five of
this article, and the officers and agents of any corporation,
partnership, or limited liability company who knowingly permit the
corporation, partnership, or limited liability company to violate or
fail to comply therewith, shall be guilty of a misdemeanor and upon
conviction therefor shall be fined not less than five hundred nor more
than five thousand dollars or imprisoned for not more than one year.
3. Every employer who knowingly violates or fails to comply with the
requirements of subdivision four of section one hundred ninety-five of
this article, and the officers and agents of any corporation,
partnership, or limited liability company who knowingly permit the
corporation, partnership, or limited liability company to violate or
fail to comply therewith, shall be guilty of a felony where such
employer, officer or agent has been convicted of a violation of such
subdivision within the previous six years, and upon conviction therefor
shall be fined not less than five hundred nor more than twenty thousand
dollars or imprisoned for not more than one year plus one day, or
punished by both such fine and imprisonment, for each such offense. In
determining the penalty, the court shall consider the severity of the
violation, the size of the employer, and the employer's good faith
effort to comply with the requirements of subdivision four of section
one hundred ninety-five of this article.
"Kick-back" of wages prohibited. 1. As used in this section,
the term "person" shall include any firm, partnership, association,
corporation or group of persons.
2. Whenever any employee who is engaged to perform labor shall be
promised an agreed rate of wages for his or her services, be such
promise in writing or oral, or shall be entitled to be paid or provided
prevailing wages or supplements pursuant to article eight or nine of
this chapter, it shall be unlawful for any person, either for that
person or any other person, to request, demand, or receive, either
before or after such employee is engaged, a return, donation or
contribution of any part or all of said employee's wages, salary,
supplements, or other thing of value, upon the statement,
representation, or understanding that failure to comply with such
request or demand will prevent such employee from procuring or retaining
employment. Further, any person who directly or indirectly aids,
requests or authorizes any other person to violate any of the provisions
of this section shall be guilty of a violation of the provisions of this
section.
3. Whenever an agreement between a bona fide labor organization and an
employer or an association of employers requires that employees shall be
paid an agreed wage or rate of wages for their services, it shall be
unlawful for any person, either for that person or any other person, to
request, demand or receive, either before or after such employee is
engaged, that such employee pay back, return, donate, contribute or give
any part or all of said employee's wages, salary, supplements or thing
of value, to any person, upon the statement, representation or
understanding that failure to comply with such requests or demand will
prevent such employee from procuring or retaining employment, and any
person who directly or indirectly aids, requests or authorizes any other
person to violate any of the provisions of this section shall be guilty
of a violation of the provisions of this section.
4. The provisions of this section shall not apply to any agent or
representative of a duly constituted labor organization acting in the
collection of dues or assessments of such organization.
5. A violation of the provisions of this section shall constitute a
misdemeanor.
Benefits or wage supplements. 1. In addition to any other
penalty or punishment otherwise prescribed by law, any employer who is
party to an agreement to pay or provide benefits or wage supplements to
employees or to a third party or fund for the benefit of employees and
who fails, neglects or refuses to pay the amount or amounts necessary to
provide such benefits or furnish such supplements within thirty days
after such payments are required to be made, shall be guilty of a
misdemeanor, and upon conviction shall be punished as provided in
section one hundred ninety-eight-a of this article. Where such employer
is a corporation, the president, secretary, treasurer or officers
exercising corresponding functions shall each be guilty of a
misdemeanor.
2. As used in this section, the term "benefits or wage supplements"
includes, but is not limited to, reimbursement for expenses; health,
welfare and retirement benefits; and vacation, separation or holiday
pay.
3. This section shall not apply to any person in a bona fide
executive, administrative, or professional capacity whose earnings are
in excess of one thousand three hundred dollars a week.
Posting regulations on illegal wage deductions. Every
employer engaged in the sale or service of food or beverages shall post
in his establishment, in a place accessible to his employees and in a
visually conspicuous manner, a copy of sections one hundred ninety-three
and one hundred ninety-six-d of this chapter and any regulations
promulgated pursuant thereto relating to illegal deductions from wages
and tips by employers.
Construction industry wage theft. 1. A contractor making or
taking a construction contract shall be liable for any debt resulting
from an action under section one hundred ninety-eight of this article,
owed to an employee or third party on the employee's behalf, incurred by
a subcontractor at any tier acting under, by, or for the contractor or
its subcontractors for the employee's performance of labor. The
provisions of this section shall not be deemed to limit the liability of
a subcontractor under section one hundred ninety-eight of this article.
2. No agreement or release by an employee or subcontractor to waive
liability of a contractor under this section shall be valid except as
otherwise provided herein. The provisions of this section shall not be
deemed to impair the rights of a contractor to maintain an action
against a subcontractor for amounts for owed wages that are paid by a
contractor pursuant to this section.
3. Notwithstanding any other provision of law, the remedies available
for a claim pursuant to subdivision one of this section shall only be
civil and administrative actions.
4. In the case of a private civil action by an employee, such employee
may designate any person, organization or collective bargaining agent
authorized to file a complaint with the commissioner pursuant to section
one hundred ninety-six-a of this article, to make a claim pursuant to
this section on his or her behalf.
5. In the case of an action against a subcontractor, the contractor
shall be considered jointly and severally liable for any unpaid wages,
benefits, wage supplements, and any other remedies available pursuant to
the requirements of section one hundred ninety-eight of this article.
6. Nothing herein shall preclude the attorney general from bringing a
civil action to collect unpaid wages and penalties on behalf of
employees pursuant to this section.
7. A contractor or any other person shall not evade, or commit any act
that negates, the requirements of this section, provided, however, that
this section shall not be deemed to prohibit a contractor or
subcontractor from establishing by contract or enforcing any other
lawful remedies against a subcontractor it hires for liability created
by violation of this section, provided that such contract or arrangement
does not diminish the right of employees to bring an action under the
provisions of this section.
8. As used in this section:
a. "Construction contract" means a written or oral agreement for the
construction, reconstruction, alteration, maintenance, moving or
demolition of any building, structure or improvement, or relating to the
excavation of or other development or improvement to land. For purposes
of this section, a construction contract shall not include: any contract
which is subject to article eight of this chapter; a home improvement
contract for the performance of a home improvement between a home
improvement contractor and the owner of an owner-occupied dwelling; and
a home construction contract for one- or two-family dwelling units
except where such contract or contracts results in the construction of
more than ten one- or two-family owner-occupied dwellings at one project
site annually.
b. "Contractor" means any person, firm, partnership, corporation,
association, company, organization or other entity, including a
construction manager, general or prime contractor, joint venture, or any
combination thereof, which enters into a construction contract with an
owner.
c. "Owner" means any person, firm, partnership, corporation, company,
association or other organization or other entity, or a combination of
any thereof, (with an ownership interest, whether the interest or estate
is in fee, as vendee under a contract to purchase, as lessee or another
interest or estate less than fee) that causes a building, structure or
improvement, new or existing, to be constructed, altered, repaired,
maintained, moved or demolished or that causes land to be excavated or
otherwise developed or improved.
d. "Subcontractor" means any person, firm, partnership, corporation,
company, association, organization or other entity, or any combination
thereof, which is a party to a contract with a contractor, and/or party
to a contract with the contractor's subcontractors at any tier to
perform any portion of work within the scope of the contractor's
construction contract with the owner, including where the subcontractor
has no direct privity of contract with the contractor.
9. A contractor's liability pursuant to the provisions of this section
shall be applicable only for claims occurring no earlier than three
years prior to the initiation of such claim in a court of competent
jurisdiction or the commencement of a civil action brought forth by the
attorney general or department. Before bringing a civil action pursuant
to this section, an employee, or third party on such employee's behalf,
must give the contractor notice of the alleged violation. The notice
need only describe the general nature of the claim and shall not limit
the liability of the contractor or preclude subsequent amendments of an
action to encompass additional employees employed by the subcontractor.
An employee, or third party on such employee's behalf, may not bring a
civil action until ten business days after giving the contractor notice
of the alleged violation and may not bring a civil action if the
contractor corrects the alleged violation. An employee, or third party
on such employee's behalf, is not required to give notice to a
contractor pursuant to this subdivision before bringing a civil action
pursuant to this section if any employee, or third party on any
employee's behalf, previously has given notice to such contractor of the
same alleged violation or a prior alleged violation by the same
subcontractor. The provisions of this section shall not be deemed to
diminish, impair, or otherwise infringe on any other rights of an
employee provided pursuant to this chapter, including the right of an
employee to bring an action against any employer under the provisions of
section one hundred ninety-eight of this article.
10. Nothing in this section shall be deemed to diminish the rights,
privileges, or remedies of any employee under any collective bargaining
agreement. On behalf of an employee subject to a collective bargaining
agreement, the provisions of this section may be waived by a collective
bargaining agreement with a bona fide building and construction trade
labor organization which has established itself, and/or its affiliates,
as the collective bargaining representative for persons performing work
on a project, provided that for such waiver to be valid, it shall
explicitly reference this section. Provided, however, that such waiver
shall not diminish or impair the rights of an employee provided under
any other section of this chapter.
Rules and regulations. The commissioner may issue such rules
and regulations as he determines necessary for the purposes of carrying
out the provisions of this article.
Notification of process. 1. Each employee who files a
complaint regarding a violation of a provision of this article (payment
of wages), article nineteen (minimum wage act), or article nineteen-A
(minimum wage standards and protective labor practices for farm
workers), section one hundred sixty-one, section one hundred sixty-two,
section two hundred twelve-a, section two hundred twelve-b, or section
two hundred fifteen of this chapter, or a rule or regulation promulgated
thereunder, shall be provided with a written description of the
anticipated processing of the complaint, including investigation, case
conference, potential civil and criminal penalties, and collection
procedures.
2. Each employee and his or her authorized representative shall be
notified in writing of any case conference before it is held and given
the opportunity to attend.
3. Each employee and his or her authorized representative shall be
notified in writing of any award and collection of back wages and civil
penalties, and of any intent to seek criminal penalties. In the event
that criminal penalties are sought the employee and his or her
authorized representative shall be notified of the outcome of
prosecution.
ARTICLE 7 General Provisions
General duty to protect health and safety of employees;
enforcement. 1. All places to which this chapter applies shall be so
constructed, equipped, arranged, operated and conducted as to provide
reasonable and adequate protection to the lives, health and safety of
all persons employed therein or lawfully frequenting such places. All
machinery, equipment, and devices in such places shall be so placed,
operated, guarded, and lighted as to provide reasonable and adequate
protection to all such persons. The board may make rules to carry into
effect the provisions of this section.
2. If the commissioner finds that any machinery, equipment, or device
in any place to which this chapter applies is in a dangerous condition,
or finds that any area to which this chapter applies is in a dangerous
condition, he may attach a notice to such machinery, equipment, or
device, or post a notice in such area warning all persons of the danger.
Such notice shall prohibit the use of such machinery, equipment, or
device or prohibit further work in or occupancy of such area until the
dangerous condition is corrected and the notice is removed by the
commissioner. Upon receipt of a written notification from the employer
that the dangerous condition has been corrected, the commissioner shall
make a reinspection within ten working days, and if the commissioner
finds that the dangerous condition has been corrected, he shall remove
the notice. The filing with the board of a petition for a review of the
validity and reasonableness of the commissioner's order pursuant to
section one hundred one of this chapter, shall not stay further
proceedings; provided, however, that the board, in its discretion, may
upon application of the petitioner stay further proceedings. The board
shall grant or deny such application for a stay within seventy-two hours
after the filing of the application.
3. Whenever a notice is attached or posted as provided in subdivision
two of this section, the attorney general may institute a proceeding to
enjoin the use of such machinery, equipment, or device or to enjoin
further work in or occupancy of such area. Such proceeding shall not be
stayed by the filing with the board of a petition for a review of the
validity or reasonableness of a commissioner's order pursuant to section
one hundred one of this chapter.
4. In the exercise of his powers to protect the health and safety of
employees the commissioner shall, in municipalities which have accepted
the applicability of the state building construction code, enforce the
provisions of such code in factories, mercantile establishments and
places of public assembly with respect to: (a) sanitation and health
facilities; (b) guarding against and minimizing fire and industrial
radiation hazards; (c) safety of vertical transportation; and (d)
adequacy of exits.
Laws to be posted at airports. An airport, as defined in
section two hundred forty of the general business law, shall permanently
and prominently post signs indicating the increased penalties for
interference with security personnel under 49 USC 46503. Such signs
shall state an individual in an area within a commercial service airport
in the United States who, by assaulting or intimidating a federal,
airport, or air carrier employee who has security duties within the
airport, interferes with the performance of the duties of the employee
or lessens the ability of the employee to perform those duties, shall be
fined under title 18 of the United States code, imprisoned for not more
than ten years, or both. If the individual used a dangerous weapon in
committing the assault, intimidation, or interference, the individual
may be imprisoned for any term of years or life imprisonment. Signage
shall include the telephone numbers of local law enforcement and the
Transportation Security Administration for the purpose of reporting a
violation.
Laws and orders to be posted. Wherever persons are employed who
are affected by the provisions of this chapter or of the industrial
code, the commissioner shall furnish to the employer copies or abstracts
of such provisions, rules and orders as he may deem necessary affecting
such persons. The copies or abstracts shall be in such language as the
commissioner may require and shall be kept posted by the employer in a
conspicuous place on each floor of the premises. Digital versions of
such copies and abstracts shall also be made available through the
employer's website or by email. Employers shall provide notice that
documents required for physical posting are also available
electronically. All other documents required to be physically posted at
a worksite pursuant to state or federal law or regulation shall also be
made electronically available in the manner described pursuant to this
section.
Fingerprinting of employees prohibited. Except as otherwise
provided by law, no person, as a condition of securing employment or of
continuing employment, shall be required to be fingerprinted. This
provision shall not apply to employees of the state or any municipal
subdivisions or departments thereof, or to the employees of legally
incorporated hospitals, supported in whole or in part by public funds or
private endowment, or to the employees of medical colleges affiliated
with such hospitals or to employees of private proprietary hospitals.
Fees for medical examination. 1. It shall be unlawful for any
employer to require any applicant for employment to pay the cost of a
medical examination required by the employer as a condition of original
employment.
2. It shall be unlawful for any employer to require an employee, as a
condition of continuation of employment, to pay the cost of any medical
examination or the cost of furnishing any health certificate relating
thereto where:
a. such employee is not covered by health insurance or the employee's
health insurance does not cover such examination or certificate or the
employer does not provide qualified medical personnel to conduct such
examination without cost to the employee; and
b. such examination or certificate is not required pursuant to a state
or federal statute or municipal ordinance or local law.
3. The term "employer" as used in this section shall mean and include
an individual, a partnership, an association, a corporation, a legal
representative, trustee, receiver, trustee in bankruptcy, and any common
carrier by rail, motor, water, air or express company doing business in
or operating within the state.
4. Nothing contained herein shall prohibit the parties to a collective
bargaining agreement from inserting therein a provision requiring:
a. an applicant for employment to pay, in the first instance, the cost
of such medical examination provided that such collective bargaining
agreement also provides for the repayment of such cost by the employer
to the applicant after a reasonable period of employment; and
b. an employee who is otherwise protected by the provisions of
subdivision two of this section, to pay in the first instance the cost
of such medical examination or of furnishing the health certificate
provided that such collective bargaining agreement also provides for the
repayment of such cost by the employer to the employee within a
reasonable time.
5. Any employer who violates the provisions of this section shall be
liable to a penalty of not more than fifty dollars for each violation.
It shall be the duty of the department of labor to enforce this section.
Discrimination in child-care leave prohibited. 1. Whenever an
employer or governmental agency permits an employee to take a leave of
absence upon the birth of such employee's child, an adoptive parent,
following the commencement of the parent-child relationship, shall be
entitled to the same leave and upon the same terms; provided, however,
that the adoptive parent shall not be entitled to such equal child care
leave, or any portion thereof, at any time after the adoptive child
reaches the minimum age set forth in subdivision one of section three
thousand two hundred two of the education law for attendance in public
school without the payment of tuition. With respect to the adoption of a
hard-to-place or handicapped child as defined in section four hundred
fifty-one of the social services law who is under the age of eighteen,
an adoptive parent, following commencement of the parent-child
relationship, shall be entitled to such leave of absence.
2. For purposes of this section, "commencement of the parent-child
relationship" shall mean:
a. When the adoption occurs under sponsorship of an authorized agency,
as defined in subdivision ten of section three hundred seventy-one of
the social services law, the date the child is placed by the authorized
agency in the home of the adoptive parents pursuant to section three
hundred eighty-four of the social services law.
b. When the adoption occurs without the sponsorship of an authorized
agency, the date a petition for the adoption of a child residing with
the adoptive parents is filed in a court.
3. In addition to any other penalties or actions otherwise applicable
pursuant to this chapter, whenever an employer or governmental agency
has refused to extend available child-care leave to an adoptive parent
in violation of this section, an aggrieved individual may commence an
action for equitable relief and damages. In all actions brought pursuant
to this section, reasonable attorney's fees, as determined by the
court, shall be awarded to the prevailing plaintiff.
Discrimination against the engagement in certain activities.
1. Definitions. As used in this section:
a. "Political activities" shall mean (i) running for public office,
(ii) campaigning for a candidate for public office, or (iii)
participating in fund-raising activities for the benefit of a candidate,
political party or political advocacy group;
b. "Recreational activities" shall mean any lawful, leisure-time
activity, for which the employee receives no compensation and which is
generally engaged in for recreational purposes, including but not
limited to sports, games, hobbies, exercise, reading and the viewing of
television, movies and similar material;
c. "Work hours" shall mean, for purposes of this section, all time,
including paid and unpaid breaks and meal periods, that the employee is
suffered, permitted or expected to be engaged in work, and all time the
employee is actually engaged in work. This definition shall not be
referred to in determining hours worked for which an employee is
entitled to compensation under any law including article nineteen of
this chapter;
d. "Political matters" shall mean matters relating to elections for
political office, political parties, legislation, regulation and the
decision to join or support any political party or political, civic,
community, fraternal or labor organization;
e. "Religious matters" shall mean matters relating to religious
affiliation and practice and the decision to join or support any
religious organization or association.
2. Unless otherwise provided by law, it shall be unlawful for any
employer or employment agency to refuse to hire, employ or license, or
to discharge from employment or otherwise discriminate against an
individual in compensation, promotion or terms, conditions or privileges
of employment because of:
a. an individual's political activities outside of working hours, off
of the employer's premises and without use of the employer's equipment
or other property, if such activities are legal, provided, however, that
this paragraph shall not apply to persons whose employment is defined in
paragraph six of subdivision (a) of section seventy-nine-h of the civil
rights law, and provided further that this paragraph shall not apply to
persons who would otherwise be prohibited from engaging in political
activity pursuant to chapter 15 of title 5 and subchapter III of chapter
73 of title 5 of the USCA;
b. an individual's legal use of consumable products, including
cannabis in accordance with state law, prior to the beginning or after
the conclusion of the employee's work hours, and off of the employer's
premises and without use of the employer's equipment or other property;
c. an individual's legal recreational activities, including cannabis
in accordance with state law, outside work hours, off of the employer's
premises and without use of the employer's equipment or other property;
d. an individual's membership in a union or any exercise of rights
granted under Title 29, USCA, Chapter 7 or under article fourteen of the
civil service law; or
e. an individual's refusal to: (i) attend an employer-sponsored
meeting with the employer or its agent, representative or designee, the
primary purpose of which is to communicate the employer's opinion
concerning religious or political matters; or (ii) listen to speech or
view communications, the primary purpose of which is to communicate the
employer's opinion concerning religious or political matters.
3. The provisions of subdivision two of this section shall not be
deemed to protect activity which:
a. creates a material conflict of interest related to the employer's
trade secrets, proprietary information or other proprietary or business
interest;
b. with respect to employees of a state agency as defined in sections
seventy-three and seventy-four of the public officers law respectively,
is in knowing violation of subdivision two, three, four, five, seven,
eight or twelve of section seventy-three or of section seventy-four of
the public officers law, or of any executive order, policy, directive,
or other rule which has been issued by the attorney general regulating
outside employment or activities that could conflict with employees'
performance of their official duties;
c. with respect to employees of any employer as defined in section
twenty-seven-a of this chapter, is in knowing violation of a provision
of a collective bargaining agreement concerning ethics, conflicts of
interest, potential conflicts of interest, or the proper discharge of
official duties;
d. with respect to employees of any employer as defined in section
twenty-seven-a of this chapter who are not subject to section
seventy-three or seventy-four of the public officers law, is in knowing
violation of article eighteen of the general municipal law or any local
law, administrative code provision, charter provision or rule or
directive of the mayor or any agency head of a city having a population
of one million or more, where such law, code provision, charter
provision, rule or directive concerns ethics, conflicts of interest,
potential conflicts of interest, or the proper discharge of official
duties and otherwise covers such employees; and
e. with respect to employees other than those of any employer as
defined in section twenty-seven-a of this chapter, violates a collective
bargaining agreement or a certified or licensed professional's
contractual obligation to devote his or her entire compensated working
hours to a single employer, provided however that the provisions of this
paragraph shall apply only to professionals whose compensation is at
least fifty thousand dollars for the year nineteen hundred ninety-two
and in subsequent years is an equivalent amount adjusted by the same
percentage as the annual increase or decrease in the consumer price
index.
4. Notwithstanding the provisions of subdivision three of this
section, an employer shall not be in violation of this section where the
employer takes action based on the belief either that: (i) the
employer's actions were required by statute, regulation, ordinance or
other governmental mandate, (ii) the employer's actions were permissible
pursuant to an established substance abuse or alcohol program or
workplace policy, professional contract or collective bargaining
agreement, or (iii) the individual's actions were deemed by an employer
or previous employer to be illegal or to constitute habitually poor
performance, incompetency or misconduct.
4-a. Notwithstanding the provisions of subdivision three or four of
this section, an employer shall not be in violation of this section
where the employer takes action related to the use of cannabis based on
the following:
(i) the employer's actions were required by state or federal statute,
regulation, ordinance, or other state or federal governmental mandate;
(ii) the employee is impaired by the use of cannabis, meaning the
employee manifests specific articulable symptoms while working that
decrease or lessen the employee's performance of the duties or tasks of
the employee's job position, or such specific articulable symptoms
interfere with an employer's obligation to provide a safe and healthy
work place, free from recognized hazards, as required by state and
federal occupational safety and health law; or
(iii) the employer's actions would require such employer to commit any
act that would cause the employer to be in violation of federal law or
would result in the loss of a federal contract or federal funding.
5. Nothing in this section shall apply to persons who, on an
individual basis, have a professional service contract with an employer
and the unique nature of the services provided is such that the employer
shall be permitted, as part of such professional service contract, to
limit the off-duty activities which may be engaged in by such
individual.
6. Nothing in this section shall prohibit an organization or employer
from offering, imposing or having in effect a health, disability or life
insurance policy that makes distinctions between employees for the type
of coverage or the price of coverage based upon the employees'
recreational activities or use of consumable products, provided that
differential premium rates charged employees reflect a differential cost
to the employer and that employers provide employees with a statement
delineating the differential rates used by the carriers providing
insurance for the employer, and provided further that such distinctions
in type or price of coverage shall not be utilized to expand, limit or
curtail the rights or liabilities of any party with regard to a civil
cause of action.
7. a. Where a violation of this section is alleged to have occurred,
the attorney general may apply in the name of the people of the state of
New York for an order enjoining or restraining the commission or
continuance of the alleged unlawful acts. In any such proceeding, the
court may impose a civil penalty in the amount of three hundred dollars
for the first violation and five hundred dollars for each subsequent
violation.
b. In addition to any other penalties or actions otherwise applicable
pursuant to this chapter, where a violation of this section is alleged
to have occurred, an aggrieved individual may commence an action for
equitable relief and damages.
8. Nothing in this section shall prohibit: (i) an employer or its
agent, representative or designee from communicating to its employees
any information that the employer is required by law to communicate, but
only to the extent of such legal requirement; (ii) an employer or its
agent, representative or designee from communicating to its employees
any information that is necessary for such employees to perform their
job duties; (iii) an institution of higher education, or any agent,
representative or designee of such institution, from meeting with or
participating in any communications with its employees that are part of
coursework, any symposia or an academic program at such institution;
(iv) casual conversations between employees or between an employee and
an agent, representative or designee of an employer, provided
participation in such conversations is not required; or (v) a
requirement limited to the employer's managerial and supervisory
employees.
9. The provisions of this section shall not apply to a religious
corporation, entity, association, educational institution or society
that is exempt from the requirements of Title VII of the Civil Rights
Act of 1964 pursuant to 42 USC 2000e-1(a) with respect to speech on
religious matters to employees who perform work connected with the
activities undertaken by such religious corporation, entity,
association, educational institution or society.
10. Every employer shall post a sign in every workplace at the
location or locations where notices to employees are normally posted, to
inform employees of their rights pursuant to this section.
Maintenance of employee-patient records at occupational
health service centers. No person charged with the custody and care of
the health records of employees treated at an on-site employer sponsored
occupational health service facility shall release or disclose any
employee-patient record to an employer, except upon the express
authorization of the employee-patient, or as otherwise authorized by
law.
Posting regulations on employment of persons previously
convicted of one or more crimes. Every employer shall post in his or her
establishment, in a place accessible to his or her employees and in a
visually conspicuous manner, a copy of article twenty-three-A of the
correction law and any regulations promulgated pursuant thereto relating
to the licensure and employment of persons previously convicted of one
or more criminal offenses.
Prevention of sexual harassment. 1. The department shall
consult with the division of human rights to create and publish a model
sexual harassment prevention guidance document and sexual harassment
prevention policy that employers may utilize in their adoption of a
sexual harassment prevention policy required by this section.
a. Such model sexual harassment prevention policy shall: (i) prohibit
sexual harassment consistent with guidance issued by the department in
consultation with the division of human rights and provide examples of
prohibited conduct that would constitute unlawful sexual harassment;
(ii) include but not be limited to information concerning the federal
and state statutory provisions concerning sexual harassment and remedies
available to victims of sexual harassment and a statement that there may
be applicable local laws; (iii) include a standard complaint form; (iv)
include a procedure for the timely and confidential investigation of
complaints and ensure due process for all parties; (v) inform employees
of their rights of redress and all available forums for adjudicating
sexual harassment complaints administratively and judicially; (vi)
clearly state that sexual harassment is considered a form of employee
misconduct and that sanctions will be enforced against individuals
engaging in sexual harassment and against supervisory and managerial
personnel who knowingly allow such behavior to continue; and (vii)
clearly state that retaliation against individuals who complain of
sexual harassment or who testify or assist in any proceeding under the
law is unlawful.
b. Every employer shall adopt the model sexual harassment prevention
policy promulgated pursuant to this subdivision or establish a sexual
harassment prevention policy to prevent sexual harassment that equals or
exceeds the minimum standards provided by such model sexual harassment
prevention policy. Such sexual harassment prevention policy shall be
provided to all employees in writing as required by subdivision two-a of
this section. Such model sexual harassment prevention policy shall be
publicly available and posted on the websites of both the department and
the division of human rights.
2. The department shall consult with the division of human rights and
produce a model sexual harassment prevention training program to prevent
sexual harassment in the workplace.
a. Such model sexual harassment prevention training program shall be
interactive and include: (i) an explanation of sexual harassment
consistent with guidance issued by the department in consultation with
the division of human rights; (ii) examples of conduct that would
constitute unlawful sexual harassment; (iii) information concerning the
federal and state statutory provisions concerning sexual harassment and
remedies available to victims of sexual harassment; and (iv) information
concerning employees' rights of redress and all available forums for
adjudicating complaints.
b. The department shall include information in such model sexual
harassment prevention training program addressing conduct by supervisors
and any additional responsibilities for such supervisors.
c. Every employer shall utilize the model sexual harassment prevention
training program pursuant to this subdivision or establish a training
program for employees to prevent sexual harassment that equals or
exceeds the minimum standards provided by such model training. Such
sexual harassment prevention training shall be provided to all employees
on an annual basis.
2-a. a. Every employer shall provide his or her employees, in writing
in English and in the language identified by each employee as the
primary language of such employee, at the time of hiring and at every
annual sexual harassment prevention training provided pursuant to
subdivision two of this section, a notice containing such employer's
sexual harassment prevention policy and the information presented at
such employer's sexual harassment prevention training program.
b. The commissioner shall prepare templates of the model sexual
harassment prevention policy created and published pursuant to
subdivision one of this section and the model sexual harassment
prevention training program produced pursuant to subdivision two of this
section. The commissioner 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 commissioner shall deem relevant. All such templates
shall be made available to employers in such manner as determined by the
commissioner.
c. When an employee identifies as his or her primary language a
language for which a template is not available from the commissioner,
the employer shall comply with this subdivision by providing that
employee an English-language notice.
d. An employer shall not be penalized for errors or omissions in the
non-English portions of any notice provided by the commissioner.
3. The commissioner may promulgate regulations as he or she deems
necessary for the purposes of carrying out the provisions of this
section.
4. Beginning in the year two thousand twenty-two, and every succeeding
four years thereafter, the department in consultation with the division
of human rights shall evaluate, using the criteria within this section,
the impact of the current model sexual harassment prevention guidance
document and sexual harassment prevention policy. Upon the completion of
each evaluation the department shall update the model sexual harassment
prevention guidance document and sexual harassment prevention policy as
needed.
Posting of veterans' benefits and services. 1. The department
shall consult with the division of veterans' services to create and
distribute a veterans' benefits and services poster.
2. Such poster shall, at a minimum, include information regarding the
following services available to veterans:
a. contact and website information for the division of veterans'
services and the department's veterans' program;
b. substance abuse and mental health treatment;
c. educational, workforce, and training resources;
d. tax benefits;
e. New York state veteran drivers' licenses and non-driver
identification cards;
f. eligibility for unemployment insurance benefits under state and/or
federal law;
g. legal services; and
h. contact information for the U.S. Department of Veterans Affairs
Veterans Crisis Line.
3. Every employer in the state with more than fifty full-time
equivalent employees shall display the poster created pursuant to this
section in a conspicuous place accessible to employees in the workplace.
Request for access to personal accounts prohibited. 1. For
purposes of this section, the following words shall have the following
meanings:
(a) "Applicant" means an applicant for employment.
(b) "Electronic communications device" means any device that uses
electronic signals to create, transmit, and receive information,
including, but not limited to computers, telephones, personal digital
assistants and other similar devices.
(c) "Employer" means (i) a person or entity engaged in a business,
industry, profession, trade or other enterprise in the state; (ii) the
state of New York; (iii) a county, city, town, village or any other
political subdivision or civil division of the state; (iv) a school
district or any government entity operating a public school, college, or
university; (v) a public improvement or special district; (vi) a public
authority, commission or public benefit corporation; or (vii) any other
public corporation, agency, instrumentality or unit of government which
exercises governmental power under the laws of the state; and (viii)
shall include an agent, representative or designee of the employer.
(d) "Personal account" means an account or profile on an electronic
medium where users may create, share, and view user-generated content,
including uploading or downloading videos or still photographs, blogs,
video blogs, podcasts, instant messages, or internet website profiles or
locations that is used by an employee or an applicant exclusively for
personal purposes.
2. (a) Except as provided in paragraph (b) of this subdivision, it
shall be unlawful for any employer to request, require or coerce any
employee or applicant for employment to:
(i) disclose any user name and password, password, or other
authentication information for accessing a personal account through an
electronic communications device;
(ii) access the employee's or applicant's personal account in the
presence of the employer; or
(iii) reproduce in any manner photographs, video, or other information
contained within a personal account obtained by the means prohibited in
this paragraph.
(b) An employer may require an employee to disclose any user name,
password or other means for accessing nonpersonal accounts that provide
access to the employer's internal computer or information systems.
(c) For the purposes of this section, "access" shall not include an
employee or applicant voluntarily adding an employer, agent of the
employer, or employment agency to their list of contacts associated with
a personal internet account.
3. An employer may not:
(a) Discharge, discipline, or otherwise penalize or threaten to
discharge, discipline, or otherwise penalize an employee for an
employee's refusal to disclose any information specified in paragraph
(a) of subdivision two of this section; or
(b) Fail or refuse to hire any applicant as a result of the
applicant's refusal to disclose any information specified in paragraph
(a) of subdivision two of this section.
4. It shall be an affirmative defense to an action under this section
that the employer acted to comply with requirements of a federal, state
or local law.
5. (a) Nothing in this section shall prohibit an employer from:
(i) requesting or requiring an employee to disclose access information
to an account provided by the employer where such account is used for
business purposes and the employee was provided prior notice of the
employer's right to request or require such access information;
(ii) requesting or requiring an employee to disclose access
information to an account known to an employer to be used for business
purposes;
(iii) accessing an electronic communications device paid for in whole
or in part by the employer where the provision of or payment for such
electronic communications device was conditioned on the employer's right
to access such device and the employee was provided prior notice of and
explicitly agreed to such conditions. However, nothing in this
subparagraph shall permit an employer to access any personal accounts on
such device;
(iv) complying with a court order in obtaining or providing
information from, or access to, an employee's accounts as such court
order may require;
(v) restricting or prohibiting an employee's access to certain
websites while using an employer's network or while using an electronic
communications device paid for in whole or part by the employer where
the provision of or payment for such electronic communications device
was conditioned on the employer's right to restrict such access and the
employee was provided prior notice of and explicitly agreed to such
conditions.
(b) This section does not prohibit or restrict an employer from
complying with a duty to screen employees or applicants prior to hiring
or to monitor or retain employee communications that is established
under federal law or by a self regulatory organization, as defined in
section 3(a)(26) of the securities and exchange act of 1934, 15 USC
§78c(a)(26).
(c) This section does not prohibit or restrict an employer from
viewing, accessing, or utilizing information about an employee or
applicant that can be obtained without any required access information,
that is available in the public domain, or for the purposes of obtaining
reports of misconduct or investigating misconduct, photographs, video,
messages, or other information that is voluntarily shared by an
employee, client, or other third party that the employee subject to such
report or investigation has voluntarily given access to contained within
such employee's personal account.
6. The provisions of this section shall not apply to any law
enforcement agency, a fire department or a department of corrections and
community supervision.
Protection of the public and of persons engaged at window
cleaning and cleaning of exterior surfaces of buildings. The owner,
lessee, agent and manager of every public building and every contractor
involved shall provide such safe means for the cleaning of the windows
and of exterior surfaces of such building as may be required and
approved by the board of standards and appeals. The owner, lessee,
agent, manager or superintendent of any such public building and every
contractor involved shall not require, permit, suffer or allow any
window or exterior surface of such building to be cleaned unless such
means are provided to enable such work to be done in a safe manner for
the prevention of accidents and for the protection of the public and of
persons engaged in such work in conformity with the requirements of this
chapter and the rules of the board of standards and appeals. A person
engaged at cleaning windows or exterior surfaces of a public building
shall use the safety devices provided for his protection. Every employer
and contractor involved shall comply with this section and the rules of
the board and shall require his employee, while engaged in cleaning any
window or exterior surface of a public building, to use the equipment
and safety devices required by this chapter and rules of the board of
standards and appeals.
The provisions of this section shall not apply to (1) multiple
dwellings six stories or less in height located anywhere in this state;
nor to (2) any building three stories or less in height in cities, towns
or villages having a population of less than forty thousand; nor to (3)
the windows or exterior surfaces of any building which may be exempted
under any rule adopted by the board of standards and appeals.
The board of standards and appeals may grant variations pursuant to
the provisions of section thirty of this chapter. All existing
variations heretofore made by the board relating to the cleaning of
windows are hereby validated and continued in full force and effect
until amended or terminated by the board.
The board of standards and appeals may make rules to effectuate the
purposes of this section.
Notwithstanding any other law or regulation, local or general, the
provisions of this section and the rules issued thereunder shall be
applicable exclusively throughout the state and the commissioner shall
have exclusive authority to enforce this section and the rules issued
thereunder.
Leave of absence for bone marrow donations. 1. For the
purposes of this section, the following terms shall have the following
meanings:
(a) "Employee" means a person who performs services for hire for an
employer, for an average of twenty or more hours per week, and includes
all individuals employed at any site owned or operated by an employer
but shall not include an independent contractor.
(b) "Employer" means a person or entity that employs twenty or more
employees at at least one site and includes an individual, corporation,
partnership, association, nonprofit organization, group of persons,
county, town, city, school district, public authority or other
governmental subdivision of any kind.
2. An employer must grant leaves of absence to an employee who seeks
to undergo a medical procedure to donate bone marrow. The combined
length of the leaves shall be determined by the physician, but may not
exceed twenty-four work hours, unless agreed to by the employer. The
employer may require verification by a physician for the purpose and
length of each leave requested by the employee to donate bone marrow.
3. An employer shall not retaliate against an employee for requesting
or obtaining a leave of absence as provided by this section for the
purpose of undergoing a medical procedure to donate bone marrow.
4. The provisions of this section shall not prevent an employer from
providing leave for bone marrow donations in addition to leave allowed
under any other provision of law. The provisions of this section shall
not affect an employee's rights with respect to any other employee
benefit otherwise provided by law.
Leave for organ or bone marrow donation granted to state
employees. 1. Any employee of the state of New York shall be allowed up
to seven days paid leave to undergo a medical procedure to donate bone
marrow and up to thirty days paid leave to serve as an organ donor,
provided, however, that an employee of the state of New York shall
provide his or her employer with not less than fourteen days prior
written notice of an intention to utilize such leave, unless there
exists a medical emergency, attested to by a physician, which would
require the employee to participate in the medical procedure or organ
donation for which the leave is sought within the fourteen day
notification period. Such leave shall be in addition to any other sick
or annual leave allowed. The employer may require verification by a
physician for the purpose and length of each leave requested by the
employee to donate bone marrow.
2. An employer shall not retaliate against an employee for requesting
or obtaining a leave of absence as provided by this section for the
purpose of undergoing a medical procedure to donate bone marrow or serve
as an organ donor.
3. The provisions of this section shall not prevent an employer from
providing leave for bone marrow or organ donations in addition to leave
allowed under any other provision of law. The provisions of this section
shall not affect an employee's rights with respect to any other employee
benefit otherwise provided by law.
Prevention of personal injuries in the use of ski tows, other
passenger tramways and downhill ski areas. The commissioner may make
rules, consistent with article eighteen of the general obligations law,
guarding against personal injuries to employees and the public in the
use and operation of ski tows, other passenger tramways and downhill ski
areas.
Coin-operated machines performing a manufacturing process.
The commissioner may make such rules governing the construction,
maintenance, use, and operation of coin-operated machines which perform
any manufacturing process that he or she finds necessary for the
protection of the lives, health, and safety of employees and of persons
lawfully using such machines. The term "manufacturing" as used in this
section shall include the processes described in subdivision nine of
section two of this chapter.
Protection of persons employed on/in vehicular bridges and/or
tunnels. The board of standards and appeals may make such rules as may
be necessary for the protection of the lives, health and safety of
persons employed on/in vehicular bridges and/or tunnels by bridge and
tunnel authorities subject to the public authorities law of this state.
Protection of hotel and motel employees against fire hazards
in employee housing facilities. Notwithstanding any other provision of
law, the board of standards and appeals shall issue a temporary rule
governing fire hazards in housing facilities for hotel and motel
employees, to become effective on the first day of June, nineteen
hundred seventy-three. Such temporary rule shall contain such national
consensus standards or standards of any governmental agency in the state
relating to housing facilities as the board deems necessary for the
protection of the lives, health and safety of hotel and motel employees.
Notice of the adoption of such temporary rule shall be published in ten
newspapers throughout the state and such temporary rule shall be filed
with the secretary of state. Such temporary rule shall remain in effect
until superseded by a safety and health standard promulgated in
accordance with the procedure prescribed in article twelve of this
chapter or until the first day of June, nineteen hundred seventy-four,
whichever occurs first, provided however, that nothing in this section
shall prevent any other agency of the state or subdivision thereof from
enforcing a public health and safety standard promulgated pursuant to
section two hundred twenty-five of the public health law.
Display of fuel-connected appliances in wholesale or retail
store. No gas, gasoline or liquefied petroleum gas fueled appliances
shall be displayed in a wholesale or retail store when attached to a
live fuel source. This section shall not prevent a live demonstration
of such appliances under the immediate supervision, and in the presence
of, a responsible adult.
High-voltage proximity. 1. This section may be known as the
"high-voltage proximity act".
2. Definitions. For the purpose of this section:
(a) "High-voltage lines" means electrical conductors installed above
ground and having a voltage differential in excess of six hundred volts
between any pair of conductors or between any conductor and ground. In
the case of alternating current, the voltage shall be measured in R.M.S.
value. This definition shall not include approved armored cable used to
supply power to portable equipment and insulated power cables enclosed
in approved metallic raceways.
(b) "Dangerous proximity" means a distance within ten feet of
high-voltage lines, or within such greater distances as are set forth in
the current editions and any subsequent revisions of the regulations of
the United States Occupational Safety and Health Administration (29 CFR
parts 1910 and 1926), the New York industrial code (12 NYCRR part 23)
and the national electrical safety code.
3. Prohibited activity. (a) No employer or supervising agent of an
employer shall require or permit an employee to, and no self-employed
individual, independent contractor having no employees or homeowner
shall, participate in the operation, erection, transportation, handling,
or storage of any tools, machinery, equipment, supplies, materials or
apparatus, or the moving of any building, if in the course of such
operation, erection, transportation, handling, storage or moving it is
possible for such tools, machinery, equipment, supplies, materials,
apparatus or building, to come within dangerous proximity of a
high-voltage line; or participate in any activity which would cause the
employee, self-employed individual, independent contractor or homeowner
to come within dangerous proximity of a high-voltage line; unless
precautionary action has been taken to protect against the danger from
contact with such high-voltage line, either by de-energizing such
high-voltage line and grounding it where necessary, or other effective
methods or devices which have been approved in advance by the owner or
person in charge of such high-voltage lines for the particular case and
for the particular location.
(b) Employers whose employees operate, erect, transport, handle or
store any tools, machinery, equipment, supplies, materials or apparatus,
or move any building, which in the course of such operation, erection,
transportation, handling, storing or moving might come within dangerous
proximity of a high-voltage line, shall advise such employees of the
dangers inherent in such work, highlight precautions which are to be
taken under such circumstances and encourage employees to communicate
with and advise employers or their supervising agents of conditions
which would require precautionary action by the employer as required by
paragraph (a) of this subdivision.
(c) In no case shall the required clearance be provided by moving or
displacing any conductor, except where the same is temporarily relocated
pursuant to arrangements made with the owner or person in charge of the
high-voltage line, and such actions are performed by such owner or
person in charge.
(d) All high-voltage lines shall be considered as energized
high-voltage lines until assurance has been given that they are
otherwise by qualified representatives of the owners or persons in
charge of such lines.
4. Warning sign required. (a) The owner, agent, lessee, bailee, user,
or employer responsible for the operations of equipment capable of
coming within dangerous proximity of a high-voltage line in the course
of its operation, shall post and maintain in plain view of the operator
on each piece of such equipment, an approved durable warning sign
legible at a distance of twelve feet reading "Danger Unlawful To Operate
Any Part Of This Equipment Within 10 Feet of High-Voltage Lines".
Additional warning signs shall be placed on various parts of the
equipment providing similar warnings to others in the vicinity of the
high-voltage lines.
Notwithstanding the foregoing, all such posted warnings shall specify
the actual distance by which the term "dangerous proximity" is defined
by paragraph (b) of subdivision two of this section. The owner, agent,
lessee, bailee, user, or employer responsible for the operations of
equipment shall provide such other warning signs on equipment or at the
work site as may be required by regulations promulgated hereunder. The
requirement that warning signs be posted shall not apply to railway
equipment operating on railway right-of-way in relation to high-voltage
conductors of such railway system under conditions for which exemption
is granted under subdivision eight of this section.
(b) If for any reason and for any time period, the operator of the
equipment is unable to assess visually the clearance of the equipment
from overhead high-voltage lines, a second person shall be designated to
observe the clearance and provide timely warning to the equipment
operator.
5. Notification to power company and responsibility for safeguards.
Whenever any activity is to be performed requiring precautionary action
under this section, the employer, contractor or other person responsible
for the activity shall promptly notify the owner or person in charge of
the high-voltage line of the intended activity, such notification to be
submitted at least five normal work days before the activity is to be
performed. The owner or person responsible for the high-voltage line
shall perform all necessary precautionary actions, and the employer,
contractor or other person responsible for the activity shall be
responsible for all costs of such precautionary actions. Under no
circumstances shall activities requiring precautionary actions be
undertaken before such precautionary actions have been completed.
6. Enforcement. The commissioner shall administer and enforce the
provisions of this section and is hereby empowered to prescribe and
promulgate rules and regulations consistent herewith. Such regulations
shall include a requirement that clearances greater than the dangerous
proximity distance must be maintained where, in the judgment of the
board, safety so requires.
7. Civil penalty. (a) Any person violating any of the provisions of
this section shall be liable for a penalty of not less than one hundred
dollars nor more than one thousand dollars to be collected in a civil
action by a summary proceeding. Any violation of this section by an
officer, agent or employee shall be a violation by the employer if such
employer had knowledge of and actual control over the cause of such
violation. Where the violation is of a continuing nature, each day
during which it continues shall constitute an additional, separate and
distinct offense.
(b) The commissioner is hereby authorized and empowered to compromise
and settle any claim for a penalty under this section in such amount in
the discretion of the commissioner as may appear appropriate and
equitable under the circumstances.
8. Exceptions. (a) This section shall not be construed as applying to,
shall not apply to, and is not intended to apply to, the construction,
reconstruction, operations, and maintenance of overhead electrical
conductors and their supporting structures and associated equipment by
authorized and qualified electrical workers; nor to the authorized and
qualified employees of any person engaged in the construction,
reconstruction, operation, and maintenance of overhead electrical
circuits or conductors and their supporting structures and associated
equipment of rail transportation systems, or electrical generating,
transmission, distribution, and communication systems. This exception
when applied to railway systems shall be construed as permitting
operation of standard rail equipment, which is normally used in the
transportation of freight or passengers or both and the operation of
relief trains, or other equipment in emergencies, or in maintenance of
way service, within dangerous proximity of and high-voltage conductor of
such railway system; but this section shall be construed as prohibiting
normal repair or construction operations within dangerous proximity of
any high-voltage conductor by other than properly qualified and
authorized persons or employees under the direct supervision of an
authorized person who is familiar with the hazards involved, unless
there has been compliance with the safety provisions hereof.
(b) This section shall not be construed as applying to motor vehicle
transportation across or along a public road or highway where the
combined vehicle and load shall not be in excess of thirteen and
one-half feet high and thirteen feet wide. Nevertheless, this section
shall apply to motor vehicle transportation across or along a public
road or highway during such time as the combined vehicle and load shall
for any reason and for any period of time be in excess of thirteen and
one-half feet high and thirteen feet wide.
9. Severability. In case any provisions of this section shall be
adjudged unconstitutional or void for any reason, such adjudication
shall not affect any of the other provisions of this section.
Leave of absence for military spouses. 1. For the purposes of
this section, the following terms shall have the following meanings:
(a) "Employee" means a person who performs service for hire for an
employer, for an average of twenty or more hours per week, and includes
all individuals employed at any site owned or operated by an employer
but shall not include an independent contractor.
(b) "Employer" means a person or entity that employs twenty or more
employees at at least one site and includes an individual, corporation,
the state, county, town, city, school district, public authority or
other governmental subdivision of any kind.
(c) "Period of military conflict" means a period of war declared by
the United States Congress, or in which a member of a reserve component
of the armed forces is ordered to active duty pursuant to sections 12301
and 12302 of title 10 of the United States Code.
2. The spouse of a member of the armed forces of the United States,
national guard or reserves who has been deployed during a period of
military conflict, to a combat theater or combat zone of operations
shall be allowed up to ten days unpaid leave by their employer. Such
leave shall only be used when such person's spouse is on leave from the
armed forces of the United States, national guard or reserves while
deployed during a period of military conflict to a combat theater or
combat zone of operations.
3. An employer shall not retaliate against an employee for requesting
or obtaining a leave of absence as provided in this section.
4. The provisions of this section shall not affect or prevent an
employer from providing leave for military spouses in addition to leave
allowed under any other provision of law. The provisions of this section
shall not affect an employee's rights with respect to any other employee
benefit provided by law.
Leave of absence for blood donation granted to employees. 1.
For the purposes of this section, the following terms shall have the
following meanings:
(a) "Employee" means a person who performs services for hire for an
employer, for an average of twenty or more hours per week, and includes
all individuals employed at any site owned or operated by an employer
but shall not include an independent contractor.
(b) "Employer" means a person or entity that employs twenty or more
employees at at least one site and includes an individual, corporation,
partnership, association, nonprofit organization, group of persons,
state, county, town, city, school district, public authority or other
governmental subdivision of any kind.
2. An employer must either, at its option: (a) grant three hours of
leave of absence in any twelve month period to an employee who seeks to
donate blood; provided that the leave of absence may not exceed three
hours, unless otherwise agreed to by the employer, and must comply with
the requirements established by the commissioner under subdivision five
of this section; or (b) allow its employees without use of accumulated
leave time to donate blood during work hours at least two times per year
at a convenient time and place set by the employer, including allowing
an employee to participate in a blood drive at the employee's place of
employment.
3. An employer shall not retaliate against an employee for requesting
or obtaining a leave of absence under this section.
4. This section shall not prevent an employer from providing leave for
blood donation in addition to leave allowed under any other provision of
law. This section shall not affect an employee's rights with respect to
any other employee benefit otherwise provided by law.
5. The commissioner is hereby authorized and directed to establish any
necessary guidelines, including requirements for notice, request and
approval of leave, and documentation, for the timely implementation of
the program.
Protection of persons employed in the broadcast industry. 1.
For the purposes of this section:
(a) "Broadcasting industry employer" includes television stations or
networks, radio stations or networks, cable stations or networks,
internet or satellite-based services similar to a broadcast station or
network, any broadcast entities affiliated with any of the employers of
this paragraph, or any other entity that provides broadcasting services
such as news, weather, traffic, sports, or entertainment reports or
programming.
(b) "Broadcast employee" means any on-air employee or off-air employee
of a broadcasting industry employer, excluding management employees.
2. A broadcasting industry employer shall not require as a condition
of employment, whether in an employment contract or otherwise, that a
broadcast employee or prospective broadcast employee refrain from
obtaining employment:
(a) in any specified geographic area;
(b) for a specific period of time; or
(c) with any particular employer or in any particular industry; after
the conclusion of employment with such broadcasting industry employer.
This section shall not apply to preventing the enforcement of such a
covenant during the term of an employment contract.
3. Any person who violates this section shall be civilly liable to a
broadcast employee for damages, attorney's fees and costs.
Leave of absence for volunteer emergency responders. 1.
During the time that an emergency exists following a declaration of such
emergency pursuant to section twenty-four or twenty-eight of the
executive law, an employee may request and shall be granted a leave of
absence from his or her employer while engaged in the actual performance
of his or her duties as, (a) a volunteer firefighter, or (b) an enrolled
member of a volunteer ambulance service pursuant to article thirty of
the public health law unless the employer determines that the employee's
absence would impose an undue hardship on the conduct of the employer's
business as defined by paragraph (d) of subdivision ten of section two
hundred ninety-six of the executive law.
2. Subdivision one of this section shall apply only when:
(a) The employer has previously received written documentation from
the head of the employee's volunteer fire department or volunteer
ambulance service, as applicable, notifying the employer of the
employee's status as a volunteer firefighter or member of a volunteer
ambulance service; and
(b) The employee's duties as a volunteer firefighter or member of a
volunteer ambulance service are related to the declared emergency.
3. The entire period of the authorized leave of absence granted
pursuant to this section shall either be unpaid excused leave for
employees who are subject to the overtime provisions of this chapter,
the federal fair labor standards act and regulations promulgated
thereunder, or may otherwise be charged against any other leave to which
such employee is entitled, as determined by the employee.
4. Upon the employer's request, an employee who has been granted a
leave of absence in accordance with this section shall provide his or
her employer with a notarized statement from the head of the volunteer
fire department or volunteer ambulance service, as applicable,
certifying the period of time, or times, that said employee responded to
any emergency pursuant to this section.
5. Nothing set forth in this section shall be construed to impede,
infringe or diminish the rights and benefits which accrue to employees
through bona fide collective bargaining agreements, or otherwise
diminish the integrity of the existing collective bargaining
relationship.
6. As used in this section, employer does not include the state.
Nothing set forth in this section shall be construed as superseding,
limiting, or otherwise affecting the provisions of section eighty-two-a
of the civil service law, providing for authorized absences for public
officers and employees of the state.
Washrooms, washing facilities and waterclosets for elevator
employees. There shall be provided and maintained for the use of all
persons employed in operating freight or passenger elevators adequate
and convenient washrooms or washing facilities and a sufficient number
of suitable and convenient waterclosets. Where the elevator is used in
or in connection with a factory or mercantile establishment, the
provisions of sections two hundred and ninety-three and two hundred and
ninety-five shall apply to wash-rooms, washing facilities and
waterclosets for employees mentioned in this section; and where the
elevator is used in any other building or place, the provisions of such
sections three hundred and seventy-eight and three hundred and
eighty-one shall apply to washrooms, washing facilities and waterclosets
for employees engaged in the care, custody or operation of an elevator
in such building or place. For the purpose of so applying the sections
last referred to, the term "mercantile establishment" as therein used
shall be deemed to mean and include a building in which the elevator is
located or with which it connects.
Seats in certain passenger elevators or relief for the
operator. Every passenger elevator operated and maintained for use by
the public shall be equipped or furnished with a seat, collapsible or
otherwise, for the use of the operator when the elevator is not being
operated, provided the operator thereof is not allowed a continuous
recess period of at least fifteen minutes in every three hours in
addition to and apart from a lunch period of at least forty-five
minutes. Every passenger elevator operated in a building owned and
maintained by the state shall be equipped or furnished with such a seat
for the use of the operator when the elevator is not being operated,
notwithstanding the operator is allowed the recess and lunch period
herein specified. The provisions of this section shall not apply to
elevators in factory buildings or any other building having only one
passenger elevator.
Seats for female employees. A sufficient number of suitable
seats, with backs where practicable, shall be provided and maintained in
every factory, mercantile establishment, freight or passenger elevator,
hotel and restaurant for female employees who shall be allowed to use
the seats to such an extent as may be reasonable for the preservation of
their health. In factories, female employees shall be allowed to use
such seats whenever they are engaged in work which can be properly
performed in a sitting posture. In mercantile establishments, at least
one seat shall be provided for every three female employees and if the
duties of such employees are to be performed principally in front of a
counter, table, desk or fixture, such seats shall be placed in front
thereof, or if such duties are to be performed principally behind such
counter, table, desk or fixture they shall be placed behind the same.
Employee privacy protection. 1. No employer may cause a video
recording to be made of an employee in a restroom, locker room, or room
designated by an employer for employees to change their clothes, unless
authorized by court order.
2. No video recording made in violation of this section may be used by
an employer for any purpose.
3. In any civil action alleging a violation of this section, the court
may:
(a) award damages and reasonable attorneys' fees and costs to a
prevailing plaintiff; and
(b) afford injunctive relief against any employer that commits or
proposes to commit a violation of this section.
4. The rights and remedies provided herein shall be in addition to,
and not supersede, any other rights and remedies provided by statute or
common law.
5. The provisions of this section do not apply with respect to any law
enforcement personnel engaged in the conduct of his or her authorized
duties.
Employee personal identifying information. 1. An employer
shall not unless otherwise required by law:
(a) Publicly post or display an employee's social security number;
(b) Visibly print a social security number on any identification badge
or card, including any time card;
(c) Place a social security number in files with unrestricted access;
or
(d) Communicate an employee's personal identifying information to the
general public. For purposes of this section, "personal identifying
information" shall include social security number, home address or
telephone number, personal electronic mail address, Internet
identification name or password, parent's surname prior to marriage, or
drivers' license number.
2. A social security number shall not be used as an identification
number for purposes of any occupational licensing.
3. The commissioner may impose a civil penalty of up to five hundred
dollars on any employer for any knowing violation of this section. It
shall be presumptive evidence that a violation of this section was
knowing if the employer has not put in place any policies or procedures
to safeguard against such violation, including procedures to notify
relevant employees of these provisions.
Prohibition of discrimination based on an employee's or a
dependent's reproductive health decision making. 1. An employer shall be
prohibited from accessing an employee's personal information regarding
the employee's or the employee's dependent's reproductive health
decision making, including but not limited to, the decision to use or
access a particular drug, device or medical service without the
employee's prior informed affirmative written consent.
2. An employer shall not:
(a) discriminate nor take any retaliatory personnel action against an
employee with respect to compensation, terms, conditions, or privileges
of employment because of or on the basis of the employee's or
dependent's reproductive health decision making, including, but not
limited to, a decision to use or access a particular drug, device or
medical service; or
(b) require an employee to sign a waiver or other document which
purports to deny an employee the right to make their own reproductive
health care decisions, including use of a particular drug, device, or
medical service.
3. An employee may bring a civil action in any court of competent
jurisdiction against an employer alleged to have violated the provisions
of this section. In any civil action alleging a violation of this
section, the court may:
(a) award damages, including, but not limited to, back pay, benefits
and reasonable attorneys' fees and costs incurred to a prevailing
plaintiff;
(b) afford injunctive relief against any employer that commits or
proposes to commit a violation of the provisions of this section;
(c) order reinstatement; and/or
(d) award liquidated damages equal to one hundred percent of the award
for damages pursuant to paragraph (a) of this subdivision unless an
employer proves a good faith basis to believe that its actions in
violation of this section were in compliance with the law.
4. Nothing in this section shall be construed to limit any rights of
an employee provided through any other provision of law, common law or
collective bargaining unit.
5. Any act of retaliation for an employee exercising any rights
granted under this section shall subject an employer to separate civil
penalties under this section. For the purposes of this section,
retaliation or retaliatory personnel action shall mean discharging,
suspending, demoting, or otherwise penalizing an employee for:
(a) making or threatening to make, a complaint to an employer,
co-worker, or to a public body, that rights guaranteed under this
section have been violated;
(b) causing to be instituted any proceeding under or related to this
section; or
(c) providing information to, or testifying before, any public body
conducting an investigation, hearing, or inquiry into any such violation
of a law, rule, or regulation by such employer.
6. An employer that provides an employee handbook to its employees
must include in the handbook notice of employee rights and remedies
under this section.
7. If any word, phrase, clause, sentence, paragraph, subdivision, or
part of this section or the application thereof to any person or
circumstances shall, for any reason, be adjudged by any court of
competent jurisdiction to be invalid, such judgment shall not affect,
impair, or invalidate the remainder thereof, and the application thereof
to other persons or circumstances, but shall be confined in its
operation to the word, phrase, clause, sentence, paragraph, subdivision,
or part thereof directly involved in the controversy in which such
judgment shall have been rendered and to the person or circumstances
involved. It is hereby declared to be the intent of the legislature that
this section would have been enacted even if such invalid provisions had
not been included herein.
Inventions made by employees. 1. Any provision in an
employment agreement which provides that an employee shall assign, or
offer to assign, any of his or her rights in an invention to his or her
employer shall not apply to an invention that the employee developed
entirely on his or her own time without using the employer's equipment,
supplies, facilities, or trade secret information except for those
inventions that either:
(a) relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably
anticipated research or development of the employer; or
(b) result from any work performed by the employee for the employer.
2. To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision one of this section, such
provision is against the public policy of this state and shall be
unenforceable.
Inspection of boilers; enforcement; fees; identification;
exceptions. 1. Inspection. The commissioner shall cause to be inspected
at least once every two years all boilers as defined in this section,
except for high pressure power boilers, antique boilers and miniature
boilers, which the commissioner shall cause to be inspected at least
once each year, and except for boilers inspected and insured by a duly
authorized insurance company in accordance with the provisions of
subdivision eight of this section and with the rules of the
commissioner.
2. Enforcement. If upon inspection of a boiler the commissioner finds
a violation of the provisions of this section or of the rules of the
board or if the commissioner receives notice from a duly authorized
insurance company that the owner or lessee of a boiler has failed, after
notice from the insurance company, to comply with the provisions of this
section and rules of the board, the commissioner shall issue an order to
the owner or lessee directing compliance therewith. If in the judgment
of the commissioner the boiler is in an unsafe or dangerous condition
the commissioner shall order the use of the boiler discontinued until
such dangerous and unsafe condition has been remedied. Such order shall
be served upon the owner or lessee of the boiler, personally or by mail.
3. Fees. A fee of two hundred dollars shall be charged the owner or
lessee of each boiler internally inspected and seventy-five dollars for
each boiler externally inspected by the commissioner, provided however,
that the external inspection of multiple boilers connected to a common
header or of separate systems owned or leased by the same party and
located in the same building, with a combined input which is 300,000
BTU/hour or less, shall be charged a single inspection fee, and further
provided that, not more than two hundred seventy-five dollars shall be
charged for the inspection of any one boiler for any year; except that
no fee shall be charged for internal or external inspections by the
commissioner of an antique steam engine maintained as a hobby and
displayed at agricultural fairs and other gatherings or of a miniature
boiler.
4. Identification of boilers; unfired pressure vessels.
a. Owners and lessees of boilers shall attach to such boilers the
numbers assigned by the commissioner under a penalty of five dollars for
each day's failure so to do after such numbers have been assigned.
b. Owners and lessees of unfired pressure vessels shall ensure that
such vessels are constructed in accordance with regulations promulgated
by the commissioner.
5. Exceptions. The provisions of this section shall not apply:
a. to a boiler subject to inspection by inspectors of steam vessels
under the department of transportation;
b. to a boiler located on a farm and used solely for agricultural
purposes;
c. to a steam or vapor boiler operating at a gauge pressure of not
more than fifteen pounds per square inch, and which is located in a
dwelling occupied by less than six families;
d. to a hot water boiler which is located in a dwelling occupied by
less than six families;
e. to a boiler subject to inspection or control by a federal agency;
f. to the boiler of a miniature model locomotive, boat, tractor or
stationary engine constructed and maintained as a hobby and not for
commercial use, and having a volume of less than two cubic feet and a
grate area not in excess of two square feet; and
g. to any low pressure boiler with a capacity of one hundred thousand
British Thermal Units or less.
6. Definitions. a. For purposes of this section, the term "boiler"
shall mean a closed vessel in which water is heated, steam is generated,
steam is superheated, or any combination thereof, under pressure or
vacuum for use externally to itself by the application of heat from
combustible fuels, electricity, or any other source, but shall not
include a device or apparatus used solely to heat water for a hot water
supply system. The term "boiler" shall include the apparatus used by
which heat is generated, and all controls and devices related to such
apparatus or to the closed vessel. The term "boiler" also shall include
fired units for heating or vaporizing liquids other than water where
these units are separate from processing systems and are complete within
themselves.
b. The term "miniature boiler" shall mean a nonelectric fired pressure
vessel which does not exceed inside shell diameter of sixteen inches,
forty-two inches over-all length of outside to outside of heads at
center, water heating surface of twenty square feet, and maximum
allowable working pressure of one hundred pounds per square inch.
c. For the purposes of this section, the term "unfired pressure
vessel" shall include containers for the containment of internal or
external pressure which may be obtained from an external source or by
the application of heat from a direct or indirect source, or any
combination thereof, provided however, that the term "unfired pressure
vessel" shall not include:
(1) pressure vessels meeting the requirements of the United States
department of transportation for the shipment of liquids or gases under
pressure;
(2) air tanks used on vehicles used for carrying passengers or freight
or used directly in the operation of trains;
(3) pressure vessels having a volume of five cubic feet or less or
having an inside diameter not exceeding six inches;
(4) pressure vessels designed for pressures of less than fifteen
pounds per square inch;
(5) hot water supply storage tanks, provided none of the following
limitations is exceeded: (i) a heat input of two hundred thousand BTU's
per hour; (ii) a water temperature of two hundred ten degrees
fahrenheit; (iii) a nominal water containing capacity of one hundred
twenty gallons;
(6) pressure vessels under federal control or regulation;
(7) pressure vessels containing water under pressure, including those
containing air, the compression of which serves only as a cushion, when
none of the following limitations are exceeded: (i) a design pressure of
thirty pounds per square inch; (ii) a design temperature of two hundred
ten degrees fahrenheit; and
(8) pressure vessels used for agricultural purposes.
7. Cities. a. A city which qualifies under the provisions of this
subdivision shall enforce the provisions of this section and the rules
of the board promulgated hereunder and for such purpose shall have the
powers of the commissioner prescribed in subdivision two of this
section. In order to so qualify, a city shall have enacted a local law
or ordinance requiring an inspection of all boilers required to be
inspected by the provisions of this section located in such city, which
inspection shall be conducted with at least the same frequency as is
required by this section, but in no case more often than once a year.
Such boilers shall be inspected by competent inspectors employed by the
city except boilers inspected and insured by a duly authorized insurance
company in accordance with the provisions of subdivision eight of this
section and with the rules of the commissioner.
b. The fee schedule contained in subdivision three of this section
shall not apply within a city which qualifies under the provisions of
this subdivision. Such a city may, by local law or ordinance, impose
reasonable fees for the inspection of boilers by the inspecting agency
of such city.
8. Inspection by insurance companies. a. All boilers which are
inspected by a duly authorized insurance company shall be exempt from
inspection by the commissioner and by cities which qualify under the
provisions of subdivision seven of this section, under the following
conditions: (1) that inspections by the insurance company are made with
the same frequency as is required by this section except that, for all
such boilers located within a city which qualifies under the provisions
of subdivision seven of this section, inspections are made with the same
frequency as is required by such city; (2) that the insurance company
complies with the rules of the commissioner; (3) that the inspectors of
the insurance company hold certificates of competency; (4) that the
insurance company gives notice to the owner or lessee of each boiler
inspected listing all violations of any provision of the rules of the
commissioner; (5) that a certified copy of the report of each inspection
is filed with the commissioner or the inspecting agency of such city, as
the case may be, within twenty-one days of the inspection, on such forms
and in such manner as required by the commissioner or the inspecting
agency of such city, as the case may be. A copy filed with the
commissioner shall be accompanied by a non-refundable fee of one hundred
dollars paid for each boiler inspected. If insurance is refused,
cancelled or discontinued for the boiler inspected the report shall so
state, together with the reasons therefor; the report shall also list
any instances of the failure of an owner or lessee of the boiler to
comply with the rules of the commissioner.
b. In order to satisfy the inspection requirements of this section,
all inspections which are made by duly authorized insurance companies
shall be made by inspectors whose competency has been certified by the
commissioner in accordance with the rules of the board. The commissioner
may, after a hearing upon notice, suspend or revoke a certificate of
competency in accordance with the rules of the board. The commissioner
may require reasonable cooperation from a city which qualifies under the
provisions of subdivision seven of this section in the course of his or
her investigation into the competency of a certified inspector.
9. Members of boards. Any member of a boiler inspection examining
board or other board created pursuant to rules and regulations of the
commissioner to implement this section shall serve without salary or
other compensation.
Refunds. Whenever the commissioner determines that any moneys
received under the provisions of this chapter or the rules issued
thereunder, or any moneys received under the provisions of article
eleven of the general business law, are in excess of the amount required
by law, or were paid in error, or that other justifiable circumstances
exist, such moneys may, within three years from receipt thereof, be
refunded upon the audit of the state comptroller, without interest.
Prohibition against eating meals in certain workrooms. No
employee shall take or be permitted to take any food into a room of any
working place where lead, arsenic or other poisonous substances or
injurious or noxious fumes, dust or gases exist in harmful conditions or
are present in harmful quantities as an incident or result of the
business carried on in such working place. Notice to the foregoing
effect shall be posted in such room. No employee, unless his presence is
necessary for the proper conduct of the business, shall remain in any
such room during the time allowed for meals. The employer shall provide
a suitable place in such establishment in which the employees may eat.
Prevention of personal injuries to persons engaged in tree
trimming. The board of standards and appeals may make rules guarding
against personal injuries to persons engaged in cutting, trimming or
removing trees or brush for hire. Such rules shall not apply to persons
cutting, trimming or removing trees or brush on behalf of, or employed
by, a public service corporation subject to the jurisdiction of the
public service commission.
Physical examinations of females. Whenever an employer shall
require a physical examination of a female by a physician or a surgeon
she shall be entitled to have the examination made by one of her sex or
to have another female present if a male physician or surgeon makes the
examination. The employer requiring the examination shall post a notice
informing the party to be examined of her rights under this section.
Right of nursing employees to express breast milk. 1. An
employer shall provide paid break time for thirty minutes, and permit an
employee to use existing paid break time or meal time for time in excess
of thirty minutes, to allow an employee to express breast milk for such
employee's nursing child each time such employee has reasonable need to
express breast milk for up to three years following child birth. No
employer shall discriminate in any way against an employee who chooses
to express breast milk in the work place.
2. (a) Upon request of an employee who chooses to express breast milk
in the workplace, an employer shall designate a room or other location
which shall be made available for use by such employee to express breast
milk. Such room or other location shall be a place that is: (i) in close
proximity to the work area; (ii) well lit; (iii) shielded from view; and
(iv) free from intrusion from other persons in the workplace or the
public. Such room or other location shall provide, at minimum, a chair,
a working surface, nearby access to clean running water and, if the
workplace is supplied with electricity, an electrical outlet. The room
or location provided by the employer for this purpose shall not be a
restroom or toilet stall.
(b) If the sole purpose or function of such room or other location is
not dedicated for use by employees to express breast milk, such room or
other location shall be made available to such an employee when needed
and shall not be used for any other purpose or function while in use by
such employee. Employers shall provide notice to all employees as soon
as practicable when such room or other location has been designated for
use by employees to express breast milk.
(c) Where compliance with the requirements of paragraphs (a) or (b) of
this subdivision is impracticable because it would impose an undue
hardship on the employer by causing significant difficulty or expense
when considered in relation to the size, financial resources, nature, or
structure of the employer's business, such employer shall make
reasonable efforts to provide a room or other location, other than a
restroom or toilet stall, that is in close proximity to the work area
where an employee can express breast milk in privacy. Provided, however,
nothing in this subdivision shall otherwise exempt an employer from the
requirements of subdivision one of this section.
(d) If the workplace has access to refrigeration, the employer shall
extend such access to refrigeration for the purposes of storing the
expressed milk.
3. The commissioner shall develop and implement a written policy
regarding the rights of nursing employees to express breast milk in the
workplace pursuant to the provisions of this section. Employers shall
provide such written policy to each employee upon hire and annually
thereafter, and to employees upon returning to work following the birth
of a child. Such policy shall:
(a) Inform employees of their rights pursuant to this section;
(b) Specify the means by which a request may be submitted to the
employer for a room or other location for use by employees to express
breast milk; and
(c) Require the employer to respond to such request within a
reasonable timeframe, but not to exceed five business days.
4. No employer or their agent, or the officer or agent of any
corporation, partnership, or limited liability company, or any other
person, shall discharge, threaten, penalize, or in any other manner
discriminate or retaliate against any employee because such employee has
exercised their rights afforded under this section.
Protection of employees at switchboards. All buildings having
installed therein a switchboard of two hundred and twenty volts or over
shall have, on the floor or upon the platform or other standing place
where the switchboard is located or to which it is attached, a rubber
mat the length of the switchboard and of sufficient width to allow a
person to walk or stand thereon while working at the switchboard or
making tests.
Employee safety in work on energized high voltage lines. 1.
There shall be no change in the present industry work practices,
procedures and standards with regard to bare-hand, live-line techniques
or with insulated-glove techniques in the handling of energized
high-voltage lines and equipment having a voltage differential in excess
of 15 kv between any pair of conductors or grounds. Changes in industry
work practices, procedures and standards relative to the handling of
energized high-voltage lines and equipment having a voltage differential
in excess of 15 kv between any pair of conductors or grounds shall be
permitted where such changes require the utilization of "hot stick"
methods. Nothing contained herein shall prevent any change in industry
work practices, procedures and standards with regard to the handling of
energized voltage lines and equipment having a high-voltage differential
in excess of 100 kv between any pair of conductors or grounds.
2. For the purposes of this section the term "work" shall include, but
not be limited to the erection, maintenance, repair, construction or
installation of such energized conductors or associated equipment and
lines in both emergency and non-emergency situations.
3. No provision herein is to prevent or prohibit any appropriate
administrative or rule-making body from making and issuing appropriate
rules and regulations concerning employee or worker safety in the work
to be performed on energized or properly grounded high-voltage electric
transmission and distribution lines and equipment.
Labels, brands and marks used by labor organizations. 1. A bona
fide union or association of employees which has adopted a device in the
form of a label, brand, mark, name or other character for the purpose of
designating the products of the labor of its members may apply to the
commissioner for the registration of such device.
2. An application for such registration shall be made on a form
prescribed by the commissioner and shall be accompanied by a
non-refundable filing fee of ten dollars. Notice of the filing of such
application shall be given by the commissioner to interested persons and
unions in such manner as the commissioner shall by rule prescribe.
Within twenty days following the date of such notice of application, any
union or aggrieved person may submit to the commissioner a written
objection to the registration of the device. If no objection is
submitted, the commissioner may register the device and issue a
certificate of registration. Such certificate shall not be assignable.
3. If an objection to the registration is duly filed with the
commissioner, the commissioner shall promptly refer the objection to the
board of standards and appeals. Upon due notice the board shall conduct
a hearing to determine whether the registration should be granted or
denied. The board may deny registration on any of the following grounds:
a. That the union or association of employees filing the application
for registration is not a bona fide union;
b. That the union or association of employees filing the application
for registration is not the rightful owner thereof;
c. That the union or association of employees filing the application
for registration has made misrepresentations concerning the device; or
d. That the device sought to be registered by the union or association
of employees is so similar to a device previously registered by a union
or association of employees that it is calculated to deceive.
4. On petition of a union or aggrieved person, the registration of any
device may be revoked by the board if it determines that the
registration was granted improperly or was obtained fraudulently.
5. The determination of the board may be reviewed pursuant to the
provisions of article seventy-eight of the civil practice law and rules.
6. The commissioner and the board shall promulgate appropriate rules
and regulations to carry into effect the provisions of this section.
Illegal use of labels, brands and marks; injunction
proceedings. No person shall in any way use or display the label,
brand, mark, name or other character, adopted by any such union or
association as provided in section two hundred eight, without the
consent or authority of such union or association; or counterfeit or
imitate any such label, brand, mark, name or other character, or
knowingly sell, dispose of, keep or have in his possession with intent
to sell or dispose of any goods, wares, merchandise or other products of
labor, upon which any such counterfeit or imitation is attached,
affixed, printed, stamped or impressed, or knowingly sell, dispose of,
keep or have in his possession with intent to sell or dispose of any
goods, wares, merchandise or other products of labor contained in any
box, case, can or package, to which or on which any such counterfeit or
imitation is attached, affixed, printed, painted, stamped or impressed.
If such device has been registered as provided in section two hundred
eight, the union or association may maintain an action to enjoin the
manufacture, use, display or sale of counterfeit or colorable imitations
of such device, or of goods bearing the same, or the unauthorized use or
display of such device, or of goods bearing the same, and the court may
restrain such wrongful manufacture, use, display or sale, and every
unauthorized use or display by others of the genuine device so
registered and filed, if such use or display is not authorized by the
owner thereof, and may award to the plaintiff such damages resulting
from such wrongful manufacture, use, display or sale as may be proved,
together with the profits derived therefrom.
A union or association which has registered a device as provided in
section two hundred eight may maintain in an action in the supreme court
to enjoin the manufacture, use, display or sale of a device which is
calculated to deceive because of its similarity with a device filed by
such union or association of members. In such action if it shall appear
that the manufacture, use, display or sale of such device sought to be
enjoined has not been authorized by the union or association of
employees which has registered the device or that such device is so
similar to a device previously registered that it is calculated to
deceive, the court may restrain the manufacture, use, display or sale of
such device and may revoke and cancel the registration of such device.
A person violating any of the provisions of this section shall be
guilty of a misdemeanor punishable by a fine of not less than one
hundred dollars nor more than five hundred dollars or by imprisonment
for not less than three months nor more than one year or by both such
fine and imprisonment.
Fraudulent representation in labor organizations. Any person
who represents himself or herself to be a member of, or who claims to
represent a labor organization which does not exist within the state, at
the time of such representation, or who has in his or her possession a
credential, certificate or letter of introduction bearing a fraudulent
seal, or bearing the seal of a labor organization which has ceased to
exist, and does not exist at the time of such representation, and
attempts to gain admission by the use of said credential, certificate,
letter of introduction, as a member of any convention, or meeting of
representatives of labor organizations of the state, shall be guilty of
a misdemeanor and upon conviction thereof shall be punishable by a fine
of not less than twenty dollars nor more than fifty dollars, and
imprisonment for not less than ten days nor more than thirty days in the
jail of the county wherein such conviction is had, or by both such fine
and imprisonment.
Proceedings for nonenforcement. Any officer, agent or employee
of this state or of a municipal corporation therein having a duty to act
in the premises who violates, evades or knowingly permits the violation
of any of the provisions of this chapter shall be guilty of malfeasance
in office and shall be suspended or removed by the authority having
power to appoint or remove such officer, agent or employee; otherwise by
the governor. Any citizen of this state may maintain proceedings for
the suspension or removal of such officer, agent or employee who
knowingly permits the violation of any of the provisions of this
chapter.
Legal duty to employees. It shall be unlawful for any
employer to refuse to hire, employ or license, or to discharge from
employment, an employee in order to evade such employer's legal duty to
provide workers' compensation coverage for such employee. An employer in
violation of this section shall be guilty of a misdemeanor.
* § 210-b. Access to personnel records. 1. As used in this section,
the following terms shall, unless the context clearly requires
otherwise, have the following meanings:
(a) "Employee" means a person currently employed or formerly employed
by an employer.
(b) "Employer" means any individual, corporation, partnership, labor
organization, unincorporated association or any other legal business,
including any governmental entity or public employer as defined in
paragraph (a) of subdivision six of section two hundred one of the civil
service law, and any commercial entity, including agents of such
employer.
(c) "Personnel record" means a record kept by an employer that
identifies an employee, to the extent that the record is used or has
been used, or may affect or be used relative to that employee's
qualifications for employment, promotion, transfer, additional
compensation or disciplinary action. A personnel record shall include a
record in the possession of a person, corporation, partnership or other
association that has a contractual agreement with the employer to keep
or supply a personnel record as provided in this section. A personnel
record shall not include information of a personal nature about a person
other than the employee if disclosure of the information would
constitute a clearly unwarranted invasion of such other person's
privacy. Without limiting the applicability or generality of the
foregoing, all of the following written information or documents to the
extent prepared by an employer regarding an employee shall be included
in the personnel record for that employee: the name, address, date of
birth, job title and description; rate of pay and any other compensation
paid to the employee; starting date of employment; the job application
of the employee; resumes or other forms of employment inquiry submitted
to the employer in response to the employer's advertisement by the
employee; all employee performance evaluations, including but not
limited to, employee evaluation documents; written warnings of
substandard performance; lists of probationary periods; waivers signed
by the employee; copies of dated termination notices; any other
documents relating to disciplinary action regarding the employee. A
personnel record shall be maintained in typewritten or printed form or
may be handwritten in indelible ink.
2. An employer shall notify an employee within ten days of the
employer placing in the employee's personnel record any information to
the extent that the information is, has been used or may be used, to
negatively affect the employee's qualification for employment,
promotion, transfer, additional compensation or the possibility that the
employee will be subject to disciplinary action. An employer receiving a
written request from an employee to access such employee's personnel
record shall provide the employee with a copy of such personnel record,
at no cost to the employee, within five business days of submission of a
written request for such copy to the employer. An employer shall not be
required to allow an employee to review the employee's personnel record
on more than two separate occasions in a calendar year; provided,
however, that the notification and review caused by the placing of
negative information in the personnel record shall not be deemed to be
one of the two annually permitted reviews.
3. If there is a disagreement with any information contained in a
personnel record, removal or correction of such information may be
mutually agreed upon by the employer and the employee. If an agreement
is not reached, the employee may submit a written statement explaining
the employee's position which shall be contained and become a part of
such employee's personnel record. The statement shall be included when
said information is transmitted to a third party as long as the original
information is retained as part of the file. If an employer places any
information in a personnel record which such employer knew or should
have known to be false, the employee shall have remedy through the
collective bargaining agreement, other personnel procedures or judicial
process to have such information expunged. The provisions of this
section shall not prohibit the removal of information contained in a
personnel record upon mutual agreement of the employer and employee for
any reason.
4. An employer shall retain the complete personnel record of any
employee as required to be kept under this section without deletions or
expungement of information from the date of employment of such employee
to a date three years after the termination of employment of the
employee with such employer.
5. If an employer elects to have a written personnel policy regarding
the terms and conditions of employment, such personnel policy, as the
same may be amended from time to time, shall be continuously maintained
at the office of such employer where personnel matters are administered.
6. Nothing in this section shall be construed to supersede the terms
of a collective bargaining agreement, provided, however, that such
agreement provides at least substantially similar access by an employee
to their personnel records as that provided by this section.
7. Any violation of this section by an employer or any other person
shall be punished by a fine of not less than five hundred nor more than
twenty-five hundred dollars. This section shall be enforced by the
attorney general.
8. No employer or any other person shall discharge, threaten,
penalize, or in any other manner discriminate or retaliate against any
employee who exercises such employee's rights under this section. As
used in this section, to threaten, penalize, or in any other manner
discriminate or retaliate against an employee includes, but is not
limited to, threatening to contact or contacting United States
immigration authorities or otherwise reporting or threatening to report
an employee's suspected citizenship or immigration status or the
suspected citizenship or immigration status of an employee's family or
household member, as defined in subdivision two of section four hundred
fifty-nine-a of the social services law, to a federal, state or local
agency.
* NB Effective November 8, 2026
Protection of employees. The commissioner shall cooperate with
any employee in the enforcement of a just claim against his employer and
for his protection against frauds and other improper practices on the
part of any person public or private.
Prohibition against use of funds. 1. The legislature hereby
finds and declares that sound fiscal management requires vigilance to
ensure that funds appropriated by the legislature for the purchase of
goods and provision of needed services are ultimately expended solely
for the purpose for which they were appropriated. The legislature finds
and declares that when public funds are appropriated for the purchase of
specific goods and/or the provision of needed services, and those funds
are instead used to encourage or discourage union organization, the
proprietary interests of this state are adversely affected. As a result,
the legislature declares that the use of state funds and property to
encourage or discourage employees from union organization constitutes a
misuse of the public funds and a misapplication of scarce public
resources, which should be utilized solely for the public purpose for
which they were appropriated.
2. Notwithstanding any other provision of law, no monies appropriated
by the state for any purpose shall be used or made available to
employers to: (a) train managers, supervisors or other administrative
personnel regarding methods to encourage or discourage union
organization, or to encourage or discourage an employee from
participating in a union organizing drive; (b) hire or pay attorneys,
consultants or other contractors to encourage or discourage union
organization, or to encourage or discourage an employee from
participating in a union organizing drive; or (c) hire employees or pay
the salary and other compensation of employees whose principal job
duties are to encourage or discourage union organization, or to
encourage or discourage an employee from participating in a union
organizing drive.
3. Any employer that utilizes funds appropriated by the state and
engages in such activities shall maintain, for a period of not less than
three years from the date of such activities, financial records, audited
as to their validity and accuracy, sufficient to show that state funds
were not used to pay for such activities. An employer shall make such
financial records available to the state entity that provided such funds
and the attorney general within ten business days of receipt of a
request from such entity or the attorney general for such records.
4. The attorney general may apply in the name of the people of the
state of New York for an order enjoining or restraining the commission
or continuance of the alleged violation of this section. In any such
proceeding, the court may order the return to the state of the
unlawfully expended funds. Further, the court may impose a civil penalty
not to exceed one thousand dollars where it has been shown that an
employer engaged in a violation of subdivision two of this section;
provided, however, that a court may impose a civil penalty not to exceed
one thousand dollars or three times the amount of money unlawfully
expended, whichever is greater, where it is shown that the employer
knowingly engaged in a violation of subdivision two of this section or
where the employer previously had been found to have violated
subdivision two within the preceding two years. All monies collected
pursuant to this section shall be deposited in the state general fund.
5. The commissioner shall promulgate regulations describing the form
and content of the financial records required pursuant to this section,
and the commissioner shall provide advice and guidance to state entities
subject to the provisions of this section as to the implementation of
contractual and administrative measures to enforce the purposes of this
section.
Drinking water for farm laborers. Every grower or processor who
employs or uses paid farm or food processing workers, whether or not he
uses the services of a farm labor contractor, shall, at his own expense,
provide safe drinking water, which may be in a portable container
reasonably accessible to each and every site whereat laborers are
working.
Migrant registration law. 1. Definitions. As used in this
section:
a. "Farm labor contractor" includes:
(1) Any person who, for a fee, recruits, transports, supplies or hires
farm or food processing workers to work for, or under the direction,
supervision, or control of, a third person; or
(2) Any person who recruits, transports, supplies, or hires farm or
food processing workers and who, for a fee, directs, supervises, or
controls all or any part of the work of such workers.
The term "farm labor contractor" shall not include an employment
agency licensed in accordance with the provisions of article eleven of
the general business law. The term "farm labor contractor" shall not
include a person who is a grower or processor as defined herein who
recruits or hires workers for work on his farm or in his plant.
b. "Fee" includes any money or other valuable consideration paid or
promised to be paid to a farm labor contractor for the performance of
any of the services enumerated in paragraph a of this subdivision.
c. "Grower or processor" means any person who is the owner or lessee
of a farm or food processing plant.
d. "Person" includes any individual, firm, partnership, cooperative,
association, or corporation.
2. Farm labor contractor.
a. No person shall act as a farm labor contractor unless he holds a
valid certificate of registration issued by the commissioner.
b. The application for such certificate of registration shall be made
on a form prescribed by the commissioner, shall contain information on
wages, working conditions, housing and on such other matters as the
commissioner may prescribe. It shall be countersigned by each grower or
processor who utilizes the services of such farm labor contractor, as
provided in subdivision three of this section. Copies of the
application, or summaries thereof containing the above information,
shall be made available by the commissioner to the registrant, and the
registrant shall give a copy to each worker, preferably at the time of
recruitment, but in no event later than the time of arrival in this
state if the worker comes from outside of the state, or the time of
commencement of work if the worker does not come from outside of the
state. A copy shall also be kept posted at all times in a conspicuous
place in any camp in which such workers are housed. Each applicant shall
submit his or her fingerprints with his or her application for a
certificate of registration. Such fingerprints shall be submitted to the
division of criminal justice services for a state criminal history
record check, as defined in subdivision one of section three thousand
thirty-five of the education law, and may be submitted to the federal
bureau of investigation for a national criminal history record check.
c. Every farm labor contractor shall keep payroll records for each
worker of wage rates, wages earned, number of hours worked, or if the
worker is paid on a piecework basis the number of units produced, except
that in the case of employees in the twelve to fourteen year-old age
bracket, records of hours worked shall be kept, regardless of whether
employment be on hourly or piecework basis, all withholdings from wages,
and the net wages paid. Such payroll record shall be kept on a form and
in a manner prescribed by the commissioner and shall be available for
inspection by the commissioner or his duly authorized representative at
any reasonable time.
d. Every farm labor contractor shall give to each worker with every
payment of wages a written statement showing the employer's name and
address, the employee's name, the worker's wage rate, wages earned,
number of hours worked, or if the worker is paid on a piecework basis
the number of units produced, except that in the case of employees in
the twelve to fourteen year-old age bracket, the number of hours worked
shall be shown, regardless of whether employment be on hourly or
piecework basis, all withholdings and other deductions fully itemized
and explained from wages, and the net wages paid.
e. A farm labor contractor shall keep the certificate of registration
in his immediate personal possession and shall display it upon the
request of the commissioner or his duly authorized representative.
3. Grower or processor who utilizes the services of a farm labor
contractor.
a. No grower or processor shall utilize the services of a farm labor
contractor unless such grower or processor has a certificate issued by
the commissioner therefor, and the farm labor contractor is registered
in accordance with the provisions of this section. The commissioner
shall issue to such grower or processor a separate certificate of
registration.
b. Every grower or processor who utilizes the services of a farm labor
contractor shall countersign an application of the farm labor contractor
for registration under subdivision two of this section, and shall state
that the information contained in such application is true to the best
of his knowledge and belief.
c. If a farm labor contractor fails to comply with the provisions of
subdivision two of this section relating to the giving of copies of
information to workers, the posting of a copy of such information, the
keeping of payroll records, and the giving of wage statements to
workers, the commissioner shall notify the grower or processor who
utilizes the services of such farm labor contractor and responsibility
for compliance shall thereafter be imposed on such grower or processor
with the same force and effect as though the grower or processor were
primarily responsible for compliance.
d. Notwithstanding any other provision of this section, a grower or
processor may utilize the services of a registered farm labor contractor
for not more than five days, provided, he shall within twenty-four hours
after the beginning of such utilization, countersign the application of
such farm labor contractor as provided in paragraph b of this
subdivision, and immediately thereafter transmit the said application to
the commissioner.
4. Grower or processor who does not utilize the services of a farm
labor contractor.
a. Every grower or processor who, without utilizing the services of a
farm labor contractor, brings into the state or is responsible for
bringing into the state five or more out-of-state migrant farm or food
processing workers shall, in each instance, prior to the importation of
such workers, obtain a certificate of registration from the
commissioner.
b. The application for such registration shall be made on a form
prescribed by the commissioner, shall contain information on wages,
working conditions, housing, and on such other matters as the
commissioner may prescribe. Copies of the application, or summaries
thereof containing the above information, shall be made available by the
commissioner to the registrant, and the registrant shall give a copy to
each worker, preferably at the time of recruitment, but in no event
later than the time of arrival in this state. A copy shall also be kept
posted at all times in a conspicuous place in any camp in which such
workers are housed.
c. Every such grower or processor shall keep payroll records for each
worker of wage rates, wages earned, number of hours worked, or if the
worker is paid on a piecework basis the number of units produced, except
that in the case of employees in the twelve to fourteen year-old age
bracket, records of hours worked shall be kept, regardless of whether
employment be on hourly or piecework basis, all withholdings from wages,
and the net wages paid. Such payroll records shall be kept on a form and
in a manner prescribed by the commissioner and shall be available for
inspection by the commissioner or his duly authorized representative at
any reasonable time.
d. Every such grower or processor shall give to each worker with every
payment of wages, a written statement showing the worker's wage rate,
wages earned, number of hours worked, or if the worker is paid on a
piecework basis the number of units produced, except that in the case of
employees in the twelve to fourteen year-old age bracket, the number of
hours worked shall be shown, regardless of whether employment be on
hourly or piecework basis, all withholdings from wages, and the net
wages paid.
5. The commissioner may refuse to grant, or suspend, or revoke a
certificate of a farm labor contractor or of a grower or processor when
he finds that such person:
a. Has failed to comply with any of the provisions of this chapter, or
has been convicted of any crime or offense, except traffic infractions;
or
b. Has made any misrepresentations or false statements in his
application for a registration certificate; or
c. Has given false or misleading information concerning terms,
conditions, or existence of employment to workers who are recruited or
hired.
6. The commissioner shall not refuse, suspend, or revoke a certificate
of a farm labor contractor or of a grower or processor unless, upon due
notice, an opportunity to be heard has been given to such person;
provided, however, that pending the determination of such hearing, the
commissioner may temporarily suspend a certificate if, in his opinion,
its suspension for such period is necessary to effectuate the purposes
of this section.
7. A certificate issued under this section shall terminate on the
thirty-first day of March following issuance, unless sooner revoked by
the commissioner, and it may not be transferred or assigned to any other
person.
8. The commissioner shall submit to each person certified under this
section pertinent information concerning workmen's compensation
insurance and farmers' liability insurance with medical payments,
including the rates for such protection, at the time of certification.
9. The commissioner may promulgate rules and regulations necessary to
carry out the provisions of this section.
Farm labor camp commissaries; issuance of permit; renewal,
refusal, suspension, and revocation of permit; rules and regulations.
1. No person shall operate a farm labor camp commissary, or cause or
allow the operation of a farm labor camp commissary, without a permit
from the commissioner to do so, and unless such permit is in full force
and effect. Application for such permit shall be made on a form
prescribed by the commissioner.
2. A permit to operate a farm labor camp commissary must be
conspiciously posted in the commissary. The permit may not be
transferred or assigned, and shall run for a period not to exceed twelve
months, which period shall end on the thirty-first day of March, unless
sooner revoked by the commissioner. The permit may be renewed each year
upon the filing of an application for renewal on a form prescribed by
the commissioner.
3. A permit-holder shall post, and keep posted, in a conspicuous place
in the commissary, the current prices of all goods sold or leased, and
the prices charged shall not exceed the prices listed on the poster.
4. The commissioner may refuse, revoke, or suspend a permit when he
finds that:
(a) the applicant or permit-holder has violated any of the provisions
of this chapter or of the penal law, or has been convicted of any crime
or offense, except traffic violations, or is not a person of good
character or responsibility; or
(b) the applicant or permit-holder has made any misrepresentation or
false statements in his application for a permit.
5. The commissioner shall not refuse, revoke, or suspend a permit
unless the applicant or permit-holder, upon due notice, has been given
an opportunity to be heard; provided however, that pending the
determination of such hearing, the commissioner may temporarily suspend
a registration if, in his opinion, its suspension for such period is
necessary to effectuate the purposes of the section.
6. The commissioner may promulgate rules and regulations necessary to
carry out the provisions of this section.
Definitions. As used in section two hundred twelve-b: 1.
"Persons" includes any individual, firm, partnership, association, or
corporation.
2. "Farm labor camp commissary" means a place where goods are offered
for sale or lease and which is operated in or in connection with a farm
labor camp, including meals sold to workers. "Farm labor camp
commissary" includes a building, shed, or structure, or any part
thereof, occupied as a farm labor camp commissary.
3. "Farm labor camp" means a property consisting of a tract of land
and all tents, vehicles, buildings, or other structure pertaining
thereto, any part of which may be occupied by persons employed as
laborers in farm activities who are provided with sleeping facilities,
in whole or in part, by the owner, lessee, or operator thereof, with or
without stipulated agreement as to the duration of their stay, whether
or not they are supplied with meals but who are supplied with such
services or facilities as are necessary for their use of such property.
The term, "farm activities" shall include the following activities in
connection with vegetables and fruits and the plants, bushes, or trees
producing the vegetables or fruits: fitting, planting, cultivating,
harvesting, vining, sorting, grading, packing, storing, canning,
freezing, dehydrating, bottling and preserving or treating by any
method.
4. "Goods" includes all goods, wares, merchandise, food or any article
or thing.
Field sanitation for farm hand workers, farm field workers
and farm food processing workers. 1. Every grower or processor who
employs or uses paid farm hand workers, farm field workers or farm food
processing workers, whether or not he or she uses the services of a farm
labor contractor, shall, at his or her own expense, provide or make
available to such workers toilet and handwashing facilities, including
transportation to such facilities.
2. Where five or more paid farm handworkers, farm field workers or
farm food processing workers are employed in one location at the same
time, at least one toilet and handwashing facility shall be provided at
such location for every twenty workers or fraction thereof. Toilet and
handwashing units shall be located together. Such facilities shall be
located within a one-quarter mile walk of most hand-laborers or at the
closest point that may be accessible by motor vehicle.
3. Where more than twenty paid farm hand workers, farm field workers
or farm food processing workers are employed in one location at the same
time and fifty or more percent of such workers are women, one toilet
shall be designated with appropriate signs for men and one toilet
designated with appropriate signs for women. Toilet and handwashing
units shall be located together. Such facilities shall be located within
a one-quarter mile walk of most hand-laborers.
4. When compliance with the provisions of subdivisions one, two and
three of this section is not practicable because of physical or terrain
conditions, such toilet and handwashing facilities shall be located at
the closest point that may be accessible by motor vehicle.
5. Any violation of this section, shall be a misdemeanor punishable by
a fine of not less than five hundred dollars, nor more than one thousand
dollars, or up to thirty days imprisonment, or both such fine and
imprisonment. Any second or subsequent offense shall be a misdemeanor
punishable by a fine of not less than one thousand dollars, nor more
than three thousand dollars, or up to sixty days imprisonment, or both
such fine and imprisonment.
Violations of provisions of labor law; the rules, regulations
or orders of the industrial commissioner and the industrial board of
appeals. Any person who violates or does not comply with any provision
of the labor law, any rule, regulation or lawful order of the industrial
commissioner or the industrial board of appeals, and the officers and
agents of any corporation who knowingly permit the corporation to
violate such provisions, are guilty of a misdemeanor and upon conviction
shall be punished, except as in this chapter or in the penal law
otherwise provided, for a first offense by a fine of not more than one
hundred dollars, provided, however, that if the first offense is a
violation of a rule or provision for the protection of the safety or
health of employees or persons lawfully frequenting a place to which
this chapter applies, the punishment shall be a fine of not more than
one hundred dollars or by imprisonment for not more than fifteen days or
by both such fine and imprisonment; for a second offense by a fine of
not less than one hundred nor more than five hundred dollars, or by
imprisonment for not more than thirty days or by both such fine and
imprisonment; for a subsequent offense by a fine of not less than three
hundred dollars, or by imprisonment for not more than sixty days, or by
both such fine and imprisonment. This section shall not apply to any
person covered by section twenty-seven-a of this chapter.
Special provisions regarding the purchasing of apparel or
sports equipment by the state university of New York and the city
university of New York.
1. Notwithstanding any other provision of law, the various units of
the state university of New York, the city university of New York and
community colleges shall have the authority to:
a. Determine that a bidder on a contract for the purchase of apparel
or sports equipment is not a responsible bidder as defined in section
one hundred sixty-three of the state finance law based upon either of
the following considerations:
(i) the labor standards applicable to the manufacture of the apparel
or sports equipment, including but not limited to employee compensation,
working conditions, employee rights to form unions, and the use of child
labor, or
(ii) the bidder's failure to provide information sufficient for the
state agency or corporation to determine the labor conditions applicable
to the manufacture of the apparel or sports equipment.
b. Include in the internal policies and procedures governing
procurement of apparel or sports equipment, where such procurement is
not further required to be made pursuant to the competitive bidding
requirements of section one hundred sixty-three of the state finance
law, a prohibition against the purchase of apparel or sports equipment
from any vendor based upon either or both of the following
considerations:
(i) the labor standards applicable to the manufacture of the apparel
or sports equipment, including but not limited to employee compensation,
working conditions, employee rights to form unions, and the use of child
labor, or
(ii) the bidder's failure to provide sufficient information for said
state agencies to determine the labor standards applicable to the
manufacture of the apparel or sports equipment.
2. For the purposes of this section the term:
a. "apparel" shall mean goods, such as, but not limited to, sports
uniforms, including gym uniforms, required school uniforms, shoes,
including, but not limited to, athletic shoes or sneakers, sweatshirts,
caps, hats, and other clothing, whether or not imprinted with a school's
name or logo, academic regalia, lab coats and staff uniforms; and
b. "sports equipment" shall mean equipment, such as, but not limited
to, balls, bats and other goods intended for use by those participating
in sports and games.
Criminal prosecution. The attorney-general may prosecute every
person charged with the commission of a criminal offense in violation of
this chapter, or of any rule, regulation or order made thereunder, or in
violation of the laws of this state, applicable to or arising out of any
provision of this chapter or any rule, regulation or order made
thereunder.
Penalties and civil action; prohibited retaliation. 1. (a) No
employer or his or her agent, or the officer or agent of any
corporation, partnership, or limited liability company, or any other
person, shall discharge, threaten, penalize, or in any other manner
discriminate or retaliate against any employee (i) because such employee
has made a complaint to his or her employer, or to the commissioner or
his or her authorized representative, or to the attorney general or any
other person, that the employer has engaged in conduct that the
employee, reasonably and in good faith, believes violates any provision
of this chapter, or any order issued by the commissioner (ii) because
such employer or person believes that such employee has made a complaint
to his or her employer, or to the commissioner or his or her authorized
representative, or to the attorney general, or to any other person that
the employer has violated any provision of this chapter, or any order
issued by the commissioner (iii) because such employee has caused to be
instituted or is about to institute a proceeding under or related to
this chapter, or (iv) because such employee has provided information to
the commissioner or his or her authorized representative or the attorney
general, or (v) because such employee has testified or is about to
testify in an investigation or proceeding under this chapter, or (vi)
because such employee has otherwise exercised rights protected under
this chapter, or (vii) because the employer has received an adverse
determination from the commissioner involving the employee, or (viii)
because such employee has used any legally protected absence pursuant to
federal, local, or state law.
An employee complaint or other communication need not make explicit
reference to any section or provision of this chapter to trigger the
protections of this section.
As used in this section, to threaten, penalize, or in any other manner
discriminate or retaliate against any employee includes; threatening to
contact or contacting United States immigration authorities or otherwise
reporting or threatening to report an employee's suspected citizenship
or immigration status or the suspected citizenship or immigration status
of an employee's family or household member, as defined in subdivision
two of section four hundred fifty-nine-a of the social services law, to
a federal, state or local agency; or assessing any demerit, occurrence,
any other point, or deductions from an allotted bank of time, which
subjects or could subject an employee to disciplinary action, which may
include but not be limited to failure to receive a promotion or loss of
pay.
(b) If after investigation the commissioner finds that an employer or
person has violated any provision of this section, the commissioner may,
by an order which shall describe particularly the nature of the
violation, assess the employer or person a civil penalty of not less
than one thousand nor more than ten thousand dollars provided, however,
that if the commissioner finds that the employer has violated the
provisions of this section in the preceding six years, he or she may
assess a civil penalty of not less than one thousand nor more than
twenty thousand dollars. The commissioner may also order all appropriate
relief including enjoining the conduct of any person or employer;
ordering payment of liquidated damages to the employee by the person or
entity in violation; and, where the person or entity in violation is an
employer ordering rehiring or reinstatement of the employee to his or
her former position or an equivalent position, and an award of lost
compensation or an award of front pay in lieu of reinstatement and an
award of lost compensation. Liquidated damages shall be calculated as an
amount not more than twenty thousand dollars. The commissioner may
assess liquidated damages on behalf of every employee aggrieved under
this section, in addition to any other remedies permitted by this
section.
(c) This section shall not apply to employees of the state or any
municipal subdivisions or departments thereof.
2. (a) An employee may bring a civil action in a court of competent
jurisdiction against any employer or persons alleged to have violated
the provisions of this section. The court shall have jurisdiction to
restrain violations of this section, within two years after such
violation, regardless of the dates of employment of the employee, and to
order all appropriate relief, including enjoining the conduct of any
person or employer; ordering payment of liquidated damages, costs and
reasonable attorneys' fees to the employee by the person or entity in
violation; and, where the person or entity in violation is an employer,
ordering rehiring or reinstatement of the employee to his or her former
position with restoration of seniority or an award of front pay in lieu
of reinstatement, and an award of lost compensation and damages, costs
and reasonable attorneys' fees. Liquidated damages shall be calculated
as an amount not more than twenty thousand dollars. The court shall
award liquidated damages to every employee aggrieved under this section,
in addition to any other remedies permitted by this section. The statute
of limitations shall be tolled from the date an employee files a
complaint with the commissioner or the commissioner commences an
investigation, whichever is earlier, until an order to comply issued by
the commissioner becomes final, or where the commissioner does not issue
an order, until the date on which the commissioner notifies the
complainant that the investigation has concluded. Investigation by the
commissioner shall not be a prerequisite to nor a bar against a person
bringing a civil action under this section.
(b) At or before the commencement of any action under this section,
notice thereof shall be served upon the attorney general by the
employee.
3. Any employer or his or her agent, or the officer or agent of any
corporation, partnership, or limited liability company, or any other
person who violates subdivision one of this section shall be guilty of a
class B misdemeanor.
* § 215-a. Discrimination against employees for failure to meet
certain ticket quotas. 1. No employer or his or her duly authorized
agent shall transfer or in any other manner penalize or threaten,
expressly or impliedly, an employee as to his or her employment in a
manner, including, but not limited to, a reassignment, a scheduling
change, an adverse evaluation, a constructive dismissal, the denial of a
promotion, or the denial of overtime, based in whole or in part on such
employee's failure to meet a quota, established by his or her employer
or his or her duly authorized agent, of (a) tickets or summonses issued
within a specified period of time for violations of provisions of law
for which a ticket or summons is authorized by any general, special or
local law; or (b) arrests made within a specified period of time for
violations of provisions of law for which such arrest is authorized by
any general, special or local law; or (c) stops of individuals suspected
of criminal activity within a specified period of time. Any employee so
transferred or otherwise penalized may cause to be instituted a
grievance proceeding pursuant to the provisions of a collective
bargaining agreement, if any, or pursuant to the provisions of section
seventy-five-a of the civil service law if no collective bargaining
agreement exists. Any employee so transferred or otherwise penalized
shall be restored to his or her previously assigned position of
employment and shall be compensated by his or her employer for any loss
of wages arising out of such transfer or other penalty, and shall have
any penalty imposed restored; provided, that if such employee shall
cease to be qualified to perform the duties of his or her employment he
or she shall not be entitled to such restoration; and it shall be
contrary to the public policy of this state for such employer to
establish or hereafter maintain a quota policy of (i) tickets or
summonses issued within a specified period of time for violations of
provisions of law for which a ticket or summons is authorized by any
general, special or local law; or (ii) arrests made within a specified
period of time for violations of provisions of law for which such arrest
is authorized by any general, special or local law; or (iii) stops of
individuals suspected of criminal activity within a specified period of
time.
2. For the purpose of this section a quota shall mean a specific
number of (a) tickets or summonses for violations of law for which a
ticket or summons is authorized by any general, special or local law,
which are required to be made within a specified period of time; or (b)
arrests made for violations of provisions of law for which such arrest
is authorized by any general, special or local law, which are required
to be made within a specified period of time; or (c) stops of
individuals suspected of criminal activity within a specified period of
time.
* NB Effective until September 1, 2027
* § 215-a. Discrimination against employees for failure to meet
certain ticket quotas. 1. No employer or his or her duly authorized
agent shall transfer or in any other manner penalize or threaten,
expressly or impliedly, an employee who is a police officer as to his or
her employment in a manner, including, but not limited to, a
reassignment, a scheduling change, an adverse evaluation, a constructive
dismissal, the denial of a promotion, or the denial of overtime based in
whole or in part on such employee's failure to meet a quota, established
by his or her employer or his or her duly authorized agent, of (a)
tickets or summonses issued within a specified period of time of
provisions of law for which a ticket or summons is authorized by any
general, special or local law; or (b) arrests made within a specified
period of time for violations of provisions of law for which such arrest
is authorized by any general, special or local law; or (c) stops of
individuals suspected of criminal activity within a specified period of
time. Any employee so transferred or otherwise penalized may cause to be
instituted a grievance proceeding pursuant to the provisions of a
collective bargaining agreement, if any, or pursuant to the provisions
of section seventy-five-a of the civil service law if no collective
bargaining agreement exists. Any employee so transferred or otherwise
penalized shall be restored to his or her previously assigned position
of employment and shall be compensated by his or her employer for any
loss of wages arising out of such transfer or other penalty, and shall
have any penalty imposed restored; provided, that if such employee shall
cease to be qualified to perform the duties of his or her employment he
or she shall not be entitled to such restoration; and it shall be
contrary to the public policy of this state for such employer to
establish or hereafter maintain a quota policy of (i) tickets or
summonses issued within a specified period of time for violations of
provisions of law for which a ticket or summons is authorized by any
general, special or local law; or (ii) arrests made within a specified
period of time for violations of provisions of law for which such arrest
is authorized by any general, special or local law; or (iii) stops of
individuals suspected of criminal activity within a specified period of
time.
2. For the purpose of this section a quota shall mean a specific
number of (a) tickets or summonses for violations of law for which a
ticket or summons is authorized by any general, special or local law,
which are required to be made within a specified period of time; or (b)
arrests made for violations of provisions of law for which such arrest
is authorized by any general, special or local law, which are required
to be made within a specified period of time; or (c) stops of
individuals suspected of criminal activity within a specified period of
time.
* NB Effective September 1, 2027
Children; adverse information; notification. 1. For purposes
of this section, the following terms shall have the following meanings:
(a) "Child" means any person under the age of sixteen;
(b) "Parent" means the birth or adoptive parent, the guardian or other
adult having legal responsibility for the child;
(c) "Person" means any individual, partnership, corporation,
association or other business entity or any employee thereof which
regularly maintains a place of business which is open to the public and
which operates or is operated for the purpose of offering for sale,
whether at wholesale, retail or otherwise, a consumer commodity for
purchase by the public;
(d) "Adverse information file" means any written or other
communication of any information with respect to the alleged commission
by a child of an act of theft within or directly proximate to any place
of business operated by such person which alleged acts had they been
committed by an adult would constitute misdemeanor larcenies under the
penal law. Any information contained in such file on such child that is
likely to have an effect upon the ability or eligibility of such child,
either while he is a child or upon attaining a legal status other than a
child, to obtain credit, insurance, employment, or other benefits, goods
or services for which he may seek shall be deemed to be adverse
information within the meaning of such term. Any such information shall
be deemed to be adverse without regard to whether any legal action as
authorized by the family court act or the penal law was ever commenced
against such child with regards to the alleged act of theft;
(e) "Consumer reporting agency" means any person who, for monetary
fees, dues, or on a cooperative nonprofit basis, regularly engages in
whole or in part in gathering, assembling or evaluating consumer credit
information or other information on, about or relating to consumers,
employees or potential employees for the purpose of furnishing reports
to third parties.
2. Any person who opens or causes to be opened an adverse information
file shall:
(a) Open such adverse information file within seven days of the
alleged commission of a theft;
(b) Notify a parent of such child by regular mail within seventy-two
hours, exclusive of weekends and holidays, of the time such file is
opened, and make known to such parent by such notice that an adverse
information file has been opened on his child by such person and such
notice shall be accompanied by copies of any documents in the file,
including the written statements of admission or denial signed by his
child. Such notice shall contain a telephone number for the parent to
call to arrange for an appointment and an address to mail additional
material for the file. Every person required to make the notification
required by this paragraph shall use reasonable diligence and effort to
ascertain the proper identity and location of a parent so as to assure
that the provisions of this subdivision shall be complied with. In the
event that a child divulges a false parent identity or location to a
person, the person shall be exempted from the notification requirements
of this paragraph unless the person has actual knowledge of the true
identity or location of a parent. The notification requirements of this
paragraph shall not apply if the child falsely reports or gives false
evidence of his age to be sixteen years or over to such person unless
the person has actual knowledge that such child is under the age of
sixteen. The notification required in this paragraph shall be made
without regard to whether any legal action as authorized by the family
court act or the penal law was ever commenced against such child with
regards to the alleged act of theft;
(c) Further notify the parent of such child in the notification
provided for in paragraph (b) of this subdivision that such parent shall
have the right to request that a written statement of two hundred and
fifty words or less to be prepared by the child or parent relevant to
the alleged act of theft be submitted and contained in such adverse
information file. Upon such request and submission the written statement
shall be attached to and included with such adverse information file.
3. No person shall provide access to, give, forward or make available
any adverse information file or any part thereof to any consumer
reporting agency.
4. Any person who fails to comply with the requirements of this
section applicable to such person shall be liable to the child in an
action commenced on behalf of such child in an amount equal to the sum
of:
(a) Any actual damages sustained by the child as a result of any
violation of this section;
(b) Such amount of punitive damages as the court may allow; and
(c) In the case of any successful action to enforce any liability
under this section together with reasonable attorney's fees as
determined by the court.
Discrimination against employees for displaying the American
flag. 1. No employer, public or private, or such employer's duly
authorized agent shall discharge or discriminate against any employee in
compensation or in terms, conditions or privileges of employment for
displaying an American flag on the employee's person or work station,
provided such display physically does not substantially or materially
interfere with the employee's job duties. If after investigation the
commissioner finds that an employer has violated any provision of this
section, the commissioner may, by an order which shall describe
particularly the nature of the violation, assess the employer a civil
penalty of not less than two hundred nor more than two thousand dollars.
Notwithstanding the provisions of section two hundred thirteen of this
chapter, the penalties set forth in this section shall be the exclusive
remedies available for violations of this section.
2. An employee may bring a civil action in a court of competent
jurisdiction against any employer or persons alleged to have violated
the provisions of this section. The court shall have jurisdiction to
restrain violations of this section, within two years after such
violation, and to order all appropriate relief, including rehiring or
reinstatement of the employee to his former position with restoration of
seniority, payment of lost compensation, damages, and reasonable
attorneys' fees. At or before the commencement of any action under this
section, notice thereof shall be served upon the attorney general by the
employee.
Failure to pay statutory inspection fees. Any person who fails
to pay the statutory fees for the inspection of boilers, as provided in
subdivision three of section two hundred four of this article or the
statutory fees for the inspection of places of public assembly, as
provided in subdivision two of section four hundred seventy-three of
this article after written notice that such fees are due and payable,
shall pay an additional amount equal to the amount specified in the
written notice as being due and payable if such statutory fee is not
received within forty-five days from the date on the written notice, two
times the amount specified in the written notice as being due and
payable if such statutory fee is not received within sixty days from the
date of the written notice, or three times the amount specified in the
written notice as being due and payable if such statutory fee is not
received within one hundred eighty days from the date on the written
notice.
Employee notification and remittance of premiums; group
policies of accident and health insurance. 1. Statement of public
policy. The legislature finds that in today's society health and
accident insurance coverage for medical care and treatment is of prime
importance to all employees and their dependents within the state of New
York. Adequate and prospective planning is necessary to insure that such
coverage is in effect at the time of commencement of the need for
medical and health care. Many employees and their dependents in New York
State are covered through group policies issued to their employers,
employee organizations or trustees of employee welfare funds and no
statutory provision has heretofore afforded these employees and their
dependents the right as certificate holders of a group accident or group
health policy to receive notification of the intended termination or
substitution of the group policy and to have premiums remitted to
insurers on their behalf should they choose to exercise continuation
privileges available under law.
Accordingly, it is the declared public policy of the state of New York
that sufficient and timely notice be afforded each employee covered
under a group accident or group health policy of the intended
termination or substitution of such policy and that employers be
required to remit premiums to insurers on behalf of individuals
exercising their right to continuation coverage under the law.
2. Definitions. As used in this section:
(a) "Policyholder" shall mean any person, co-partnership, corporation,
trade association, joint stock association, incorporated or
unincorporated association, trustees or labor organization as defined in
subsections (c) and (g), respectively, of section four thousand four
hundred two of the insurance law or any other entity to whom a policy or
contract of group accident, group health or group accident and health
insurance has been issued.
For the purpose of this section, "policyholder" shall also include any
group remitting agent.
(b) "Certificate holder" shall mean any person insured, on either a
contributory or non-contributory basis, by a policy or contract of group
accident, group health or group accident and health insurance, as well
as persons covered by group remittance policies.
3. Notification. A policyholder shall, subsequent to receipt from the
insurer of notice of termination pursuant to subsection (k) of section
four thousand two hundred thirty-five of the insurance law provide
written notice to the certificate holders of such policy of such
termination. In any case where the policyholder is substituting such
policy with another policy providing similar coverage for the same
certificate holders, the policyholder shall provide certificate holders
with a written notice including therein the name of the substituted
insurer. Where the employees are represented by a labor organization,
such notice shall be given to the representative of that labor
organization. Such written notice shall be in accordance with the rules
and regulations of the superintendent of financial services, promulgated
pursuant to subsection (l) of section four thousand two hundred
thirty-five of the insurance law.
4. Exception. The provisions of subdivision three of this section
shall not be deemed to apply if, within ten days subsequent to receipt
of notice of termination from the insurer, the policyholder has taken
necessary steps whereby the intended termination is rendered null and
void.
5. Where the policyholder has contracted with another insurer to
replace the existing insurer for the providing of similar and continuous
coverage for the same certificate holders he shall file an affidavit
with the commissioner of labor and superintendent of financial services
to that effect.
6. Remittance of premiums. Any policyholder who receives notification
from an individual entitled to exercise a right to continuation of
coverage by the policyholder's insurer pursuant to section three
thousand two hundred twenty-one of the insurance law, shall, no later
than thirty days subsequent to receipt of premiums from such individual,
remit such premiums to the insurer on behalf of such individual and
provide evidence to the individual that the premium has been remitted.
6-a. Residence location to accompany enrollment data. When a
policyholder provides information to an insurer or health maintenance
organization certified under article forty-four of the public health law
or licensed pursuant to the insurance law regarding the initial or
continued enrollment eligibility of a certificate holder, the policy
holder must include the current united states postal service zip code
and state in which the certificate holder currently resides.
7. Penalties. (a) Any policyholder who fails to comply with this
section, shall forfeit to the people of the State a sum up to five
thousand dollars, to be recovered by the commissioner in a civil action.
Where the policyholder is a corporation, trade association, joint stock
association, incorporated or unincorporated association, the president,
secretary and treasurer thereof shall be liable for any forfeiture.
(b) In addition to such penalty, where the failure to comply involves
the failure to notify an employee of the termination of a group accident
or group health policy pursuant to subdivision three of this section or
the failure to remit premiums pursuant to subdivision six of this
section, or the failure to provide an individual with notice of
termination pursuant to subdivision six of section one hundred
ninety-five of this chapter, the policy holder shall also be liable, in
a civil action brought by the individual entitled to receive the notice
of termination or exercise the right to continuation of coverage in a
court of competent jurisdiction, to appropriate damages which shall
include reimbursement for medical expenses which were not covered by the
policyholder's insurer by virtue of his termination of the policy or
failure to remit such premiums.
Violations of certain provisions; civil penalties. 1. If the
commissioner determines that an employer has violated a provision of
article six (payment of wages), article nineteen (minimum wage act),
article nineteen-A (minimum wage standards and protective labor
practices for farm workers), article twenty-one-A (warehouse worker
protection act), section two hundred twelve-a, section two hundred
twelve-b, section one hundred sixty-one (day of rest) or section one
hundred sixty-two (meal periods) of this chapter, or a rule or
regulation promulgated thereunder, the commissioner shall issue to the
employer an order directing compliance therewith, which shall describe
particularly the nature of the alleged violation. A copy of such order
shall be provided to any employee who has filed a complaint and any
authorized representative of him or her. In addition to directing
payment of wages, benefits or wage supplements found to be due, and
liquidated damages in the amount of one hundred percent of unpaid wages,
such order, if issued to an employer who previously has been found in
violation of those provisions, rules or regulations, or to an employer
whose violation is willful or egregious, shall direct payment to the
commissioner of an additional sum as a civil penalty in an amount not to
exceed double the total amount of wages, benefits, or wage supplements
found to be due. In no case shall the order direct payment of an amount
less than the total wages, benefits or wage supplements found by the
commissioner to be due, plus the liquidated damages in the amount of one
hundred percent of unpaid wages, the appropriate civil penalty, and
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. Where the violation is for a reason other than the
employer's failure to pay wages, benefits or wage supplements found to
be due, the order shall direct payment to the commissioner of a civil
penalty in an amount not to exceed one thousand dollars for a first
violation, two thousand dollars for a second violation or three thousand
dollars for a third or subsequent violation. In assessing the amount of
the penalty, the commissioner shall give due consideration to the size
of the employer's business, the good faith basis of the employer to
believe that its conduct was in compliance with the law, the gravity of
the violation, the history of previous violations and, in the case of
wages, benefits or supplements violations, the failure to comply with
recordkeeping or other non-wage requirements.
Where there is a violation of section one hundred ninety-eight-b of
this chapter, the order shall direct payment back to the employee of the
amount of wages, supplements or other thing of value unlawfully received
plus liquidated damages in the amount of one hundred percent of unpaid
wages, and 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
payback, return, donation or contribution to the date of payment, and
shall include such other relief as may be appropriate, including
rehiring or reinstatement of the employee to his or her former position,
back wages, and restoration of seniority. In addition, the commissioner
shall order payment of a civil penalty of at least twenty-five hundred
dollars but not more than five thousand dollars per violation. In
assessing the amount of the penalty, the commissioner shall give due
consideration to the size of the employer's business, the good faith
basis of the employer to believe that its conduct was in compliance with
the law, the gravity of the violation, and the history of previous
violations.
At the discretion of the commissioner, the commissioner shall have
full authority to provide for inclusion of an automatic fifteen percent
additional amount of damages to come due and owing upon expiration of
ninety days from an order to comply becoming final. The commissioner
shall provide written notice to the employer in the order to comply of
this additional damage.
2. An order issued under subdivision one of this section shall be
final and not subject to review by any court or agency unless review is
had pursuant to section one hundred one of this chapter.
3. (a) Provided that no proceeding for administrative or judicial
review as provided in this chapter shall then be pending and the time
for initiation of such proceeding shall have expired, the commissioner
may file with the county clerk of the county where the employer resides
or has a place of business the order of the commissioner, or the
decision of the industrial board of appeals containing the amount found
to be due including the civil penalty, if any, and at the commissioner's
discretion, an additional fifteen percent damages upon any outstanding
monies owed. Notwithstanding any provision to the contrary, in execution
of any order or decision filed by the commissioner pursuant to this
section, the commissioner shall have all the powers conferred upon
sheriffs by article twenty-five of the civil practice law and rules, but
the commissioner shall be entitled to no fee or compensation in excess
of the actual expenses paid in the performance of such duty.
Additionally, at the request of an employee, the commissioner shall
assign, without consideration or liability, that portion of the filed
order that constitutes wages, wage supplements, interest on wages or
wage supplements, or liquidated damages due that employee, to that
employee and may file an assignment or order in that amount in the name
of that employee with the county clerk of the county where the employer
resides or has a place of business. The filing of such assignment, order
or decision shall have the full force and effect of a judgment duly
docketed in the office of such clerk. The assignment may be enforced by
the employee 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.
(b) In addition and as an alternative to any other remedy provided by
this section and provided that no proceeding for administrative or
judicial review as provided in this chapter shall then be pending and
the time for initiation of such proceeding shall have expired, the
commissioner may issue a warrant under the commissioner's official seal,
directed to the sheriff of any county, commanding the sheriff to levy
upon and sell the real and personal property that may be found within
the sheriff's county of an employer who has defaulted in the payment of
any sum determined to be due from such employer for the payment of such
sum together with interest, penalties, and the cost of executing the
warrant, and to return such warrant to the commissioner and to pay into
the fund the money collected by virtue thereof within sixty days after
the receipt of such warrant. The sheriff shall, within five days after
the receipt of the warrant, file with the clerk of the county a copy
thereof, and thereupon such clerk shall enter in the judgment docket the
name of the employer mentioned in the warrant and the amount of the
contribution, interest, and penalties for which the warrant is issued
and the date when such copy is filed. Thereupon the amount of such
warrant so docketed shall become a lien upon the title to and interest
in real property and chattels of the employer against whom the warrant
is issued in the same manner as a judgment duly docketed in the office
of such clerk. The sheriff shall then proceed upon the warrant in the
same manner, and with like effect, as that provided by law in respect to
executions issued against property upon judgments of a court of record,
and the sheriff shall be entitled to the same fees, which they may
collect in the same manner, for the sheriff's services in executing the
warrant.
(c) In the discretion of the commissioner, a warrant of like terms,
force, and effect may be issued and directed to any officer or employee
of the department of labor who may file a copy of such warrant with the
clerk of any county in the state, and thereupon each such clerk shall
docket it and it shall become a lien in the same manner and with the
same force and effect as hereinbefore provided with respect to a warrant
issued and directed to and filed by a sheriff; and in the execution
thereof such officer or employee shall have all the powers conferred by
law upon sheriffs, but they shall be entitled to no fee or compensation
in excess of the actual expenses paid in the performance of such duty.
If a warrant is returned not satisfied in full, the commissioner shall
have the same remedies to enforce the amount thereof as if the
commissioner had recovered judgment for the same.
4. The civil penalty provided for in this section shall be in addition
to and may be imposed concurrently with any other remedy or penalty
provided for in this chapter.
5. An employer similar in operation and ownership to a prior employer
which had been found in violation of article six, nineteen or nineteen-A
of this chapter, shall be deemed the same employer for the purposes of
this section if the employees of the new employer are engaged in
substantially the same work in substantially the same working conditions
under substantially the same supervisors, or if the subsequent employer
has substantially the same production process, produces substantially
the same products and has substantially the same body of customers. Such
subsequent employer shall continue to be subject to this section and
liable for the acts of the prior employer under this section.
Sun safety education for state employees. 1. Any state
employee who spends more than a total of five hours per week outdoors
shall be provided information about (a) the potential dangers of
diseases caused by over-exposure of the sun, such as skin cancer, (b)
the existence of available protections and their proper uses, and (c)
any other information necessary to afford an employee his or her best
opportunity to protect themselves from the sun.
2. An employer of any employee subject to subdivision one of this
section shall ensure that any necessary information is given to each
employee for his or her use during their employment, at no cost to the
employee.
3. The commissioner, in consultation with the commissioner of
education, shall determine the form and content of the information
supplied to the state employees who are subject to the provisions of
this section.
Prevention of occupational exposure to an airborne infectious
disease. 1. For purposes of this section, the following terms shall have
the following meanings:
(a) "Employee" shall mean any person providing labor or services for
remuneration for a private entity or business within the state, without
regard to an individual's immigration status, and shall include
part-time workers, independent contractors, domestic workers, home care
and personal care workers, day laborers, farmworkers and other temporary
and seasonal workers. The term shall also include individuals working
for digital applications or platforms, staffing agencies, contractors or
subcontractors on behalf of the employer at any individual work site, as
well as any individual delivering goods or transporting people at, to or
from the work site on behalf of the employer, regardless of whether
delivery or transport is conducted by an individual or entity that would
otherwise be deemed an employer under this chapter. The term shall not
include employees or independent contractors of the state, any political
subdivision of the state, a public authority, or any other governmental
agency or instrumentality.
(b) "Work site" shall mean any physical space, including a vehicle,
that has been designated as the location where work is performed over
which an employer has the ability to exercise control. The term shall
include employer-provided housing and employer-provided transportation
at, to or from the work site but shall not include the residence of the
employer or employee unless such residence has been provided by the
employer and is used as the primary place of work or such residence is
provided by an employer covered under the provisions of article
nineteen-A of this chapter. The term shall not include a telecommuting
or telework site unless the employer has the ability to exercise control
of such site.
(c) "Supervisor" or "supervisory employee" shall mean any person who
has the authority to direct and control the work performance of other
employees, or who has the managerial authority to take corrective action
regarding the violation of the law, rules or regulations. This term
shall not include any employee who is a member of a collective
bargaining unit that primarily represents employees not otherwise deemed
to be a supervisor or supervisory employee as defined by this
subdivision.
(d) "Employer" shall mean any person, entity, business, corporation,
partnership, limited liability company, or association employing,
hiring, or paying for the labor of any individual in any occupation,
industry, trade, business, or service. The term shall not include the
state, any political subdivision of the state, a public authority, or
any other governmental agency or instrumentality.
(e) "Airborne infectious disease" shall mean any infectious viral,
bacterial or fungal disease that is transmissible through the air in the
form of aerosol particles or droplets and is designated by the
commissioner of health a highly contagious communicable disease that
presents a serious risk of harm to the public health.
2. The commissioner, in consultation with the department of health,
shall create and publish, in both English and Spanish, a model airborne
infectious disease exposure prevention standard for industries
representing a significant portion of the workforce, or those with
unique characteristics requiring distinct standards, as determined by
the commissioner, in consultation with the commissioner of health. The
commissioner shall further create and publish, in English and in
Spanish, a general model airborne infectious disease exposure prevention
standard applicable to all worksites not included in the specific
industry standards. Such model standards shall establish minimum
requirements for preventing exposure to airborne infectious diseases in
the workplace in order to protect the public and the workforce. The
model infectious disease exposure prevention standards shall take into
account the types of risks present at any work site customarily
associated with each covered industry, including the presence of third
parties. The model standards shall explicitly specify and distinguish
the extent to which the provisions are applicable for different levels
of airborne infectious disease exposure, and shall take into
consideration circumstances where a state of emergency has or has not
been declared due to an airborne infectious disease, and distinctions in
policies based on circumstances where a state of emergency has been
declared due to an airborne infectious disease shall take into
consideration all applicable federal standards to the extent
practicable. The commissioner shall determine, in his or her discretion,
which languages to publish the standards in addition to English and
Spanish based on the number of individuals in the state population that
speak each language, the prevalence of certain languages being spoken in
particular industries, and any other factor that the commissioner shall
deem relevant. Such standards shall include, but not be limited to,
establishing requirements on procedures and methods for:
(a) Employee health screenings;
(b) Face coverings;
(c) Required personal protective equipment ("PPE") applicable to each
industry for eyes, face, head, and extremities, protective clothing,
respiratory devices, and protective shields and barriers, which shall be
provided, used, and maintained in a sanitary and reliable condition at
the expense of the employer. The standards shall provide for a list of
PPE that satisfies the requirements, based on hazard assessments for
each industry;
(d) Accessible workplace hand hygiene stations and maintaining healthy
hand hygiene and that employers provide adequate break times for
employees to use handwashing facilities as needed;
(e) Regular cleaning and disinfecting of shared equipment and
frequently touched surfaces such as workstations, touchscreens,
telephones, handrails, and doorknobs, and all surfaces and washable
items in other high-risk areas such as restrooms, dining
areas/breakrooms, locker rooms, vehicles and sleeping quarters;
(f) Effective social distancing for employees and consumers or
customers, as the risk of illness may warrant, including options for
social distancing such as sign postage or markers; increasing physical
space between employees at the worksite; limiting capacity of customers
or consumers; delivering services remotely or through curbside pick-up;
reconfiguring spaces where employees congregate; flexible meeting and
travel options; flexible worksites; or implementing flexible work hours
such as staggered shifts;
(g) Compliance with mandatory or precautionary orders of isolation or
quarantine that have been issued to employees, including the
identification and provision of separate and appropriate accommodations
for employees who reside in employer-provided housing in a manner
consistent with mandatory or precautionary orders of isolation and
quarantine that have been issued to employers and employees;
(h) Compliance with applicable engineering controls such as proper air
flow or exhaust ventilation;
(i) Designation of one or more supervisory employees to enforce
compliance with the airborne infectious disease exposure prevention plan
and any other federal, state, or local guidance related to avoidance of
spreading an airborne infectious disease as applicable to employees and
third parties such as customers, contractors, and members of the public
within the workplace. No individual who is not a supervisory employee
shall have responsibility for overseeing compliance with the
requirements of the airborne infectious disease exposure prevention
plan;
(j) Compliance with any applicable laws, rules, regulations,
standards, or guidance on notification to employees and relevant state
and local agencies of potential exposure to airborne infectious disease
at the work site; and
(k) Verbal review of infectious disease standard, employer policies
and employee rights under this section, except such review need not be
provided to any individuals working for staffing agencies, contractors
or subcontractors on behalf of the employer at any individual work site,
as well as any individual delivering goods or transporting people at, to
or from the work site on behalf of the employer, where delivery or
transport is conducted by an individual or entity that would otherwise
be deemed an employer under this chapter.
3. The model airborne infectious disease exposure prevention standards
shall also include anti-retaliation requirements pursuant to subdivision
eight of this section. The commissioner, in consultation with the
department of health, shall update the model airborne infectious disease
exposure prevention standards as necessary provided that the
commissioner shall inform employers of the changes.
4. (a) Within thirty days after the commissioner publishes the model
general standard and the model standard relevant to the industry, each
employer shall establish an airborne infectious disease exposure
prevention plan either by adopting the model standard relevant to their
industry promulgated pursuant to this section as its airborne infectious
disease exposure prevention plan or by establishing an alternative plan
that equals or exceeds the minimum standards provided by the model
standard. No employee who is not a supervisory employee shall have
responsibility for overseeing compliance with the requirements of such
an airborne infectious disease exposure plan.
(b) In any circumstance where an alternative airborne infectious
disease exposure prevention plan is adopted, the employer shall develop
such plan pursuant to an agreement with the collective bargaining
representative, if any, or with meaningful participation of employees
where there is no collective bargaining representative, for all aspects
of the plan, and such plan shall be tailored and specific to hazards in
the specific industry and work sites of the employer.
5. Every employer shall provide the airborne infectious disease
exposure prevention plan to his or her employees, in writing in English
and in the language identified by each employee as the primary language
of such employees within thirty days after adoption of the plan, within
fifteen days after reopening after a period of closure due to airborne
infectious disease and, to a newly hired employee, upon hiring the new
employee. Businesses permitted to operate as of the effective date of
this section shall provide such a plan to all employees within sixty
days after the commissioner publishes the model standard relevant to the
industry. When an employee identifies as his or her primary language a
language for which a model standard is not available from the
commissioner, the employer shall comply with this paragraph by providing
that employee with an English-language notice.
6. The airborne infectious disease exposure prevention plan shall be
posted in a visible and prominent location within each worksite, other
than a vehicle. An employer that provides an employee handbook to its
employees shall, in addition, include the airborne infectious disease
exposure prevention plan in its handbook.
7. Each employer shall make the airborne infectious disease exposure
prevention plan available, upon request, to all employees and
independent contractors, employee representatives, collective bargaining
representatives, and the commissioner and the commissioner of health.
8. No employer, or his or her agent, or person acting as or on behalf
of a hiring entity, or the officer or agent of any entity, business,
corporation, partnership, or limited liability company, shall
discriminate, threaten, retaliate against, or take adverse action
against any employee for:
(a) Exercising their rights under this section or under the applicable
airborne infectious disease exposure prevention plan.
(b) Reporting violations of this section or the applicable airborne
infectious disease exposure prevention plan to any state, local, or
federal government entity, public officer or elected official.
(c) Reporting an airborne infectious disease exposure concern to, or
seeking assistance or intervention with respect to airborne infectious
disease exposure concerns, to their employer, state, local, or federal
government entity, public officer or elected official.
(d) Refusing to work where such employee reasonably believes, in good
faith, that such work exposes him or her, or other workers or the
public, to an unreasonable risk of exposure to an airborne infectious
disease due to the existence of working conditions that are inconsistent
with laws, rules, policies, orders of any governmental entity, including
but not limited to, the minimum standards provided by the model airborne
infectious disease exposure prevention standard, provided that the
employee, another employee, or employee representative notified the
employer of the inconsistent working conditions and the employer failed
to cure the conditions or the employer had or should have had reason to
know about the inconsistent working conditions and maintained the
inconsistent working conditions.
9. Nothing in this section shall be deemed to diminish the rights,
privileges, or remedies of any employee under any collective bargaining
agreement. The provisions of this section may be waived by a collective
bargaining agreement, provided that for such waiver to be valid, it
shall explicitly reference this section.
10. (a) If after investigation the commissioner finds that such
employer or person has violated any provision of this section, the
commissioner may, by an order which shall describe particularly the
nature of the violation, assess a civil penalty of not less than fifty
dollars per day for failure to adopt an airborne infectious disease
exposure prevention plan, or not less than one thousand dollars nor more
than ten thousand dollars for failure to abide by an adopted airborne
infectious disease exposure prevention plan. Provided, however, that if
the commissioner finds that the employer has violated the provisions of
this section in the preceding six years, he or she may assess a civil
penalty of not less than two hundred dollars per day for failure to
adopt an airborne infectious disease exposure prevention plan, or not
less than one thousand dollars nor more than twenty thousand dollars for
failure to abide by an adopted airborne infectious disease exposure
prevention plan. The commissioner may also order other appropriate
relief including enjoining the conduct of any person or employer in
addition to any other remedies permitted by this section.
(b) Any employee may bring a civil action seeking injunctive relief in
a court of competent jurisdiction against an employer alleged to have
violated the airborne infectious disease exposure prevention plan in a
manner that creates a substantial probability that death or serious
physical harm could result to the employee from a condition which
exists, or from one or more practices, means, methods, operations or
processes which have been adopted or are in use, by the employer at the
work site, unless the employer did not and could not, with the exercise
of reasonable diligence, know of the presence of the violation. The
court shall have jurisdiction to restrain such violations and to order
all appropriate relief, including enjoining the conduct of the employer;
and awarding costs and reasonable attorneys' fees to the employee. Where
an action brought by an employee under this subdivision is found, at any
time during the proceedings or upon judgment, to be frivolous by the
court, the court may award to the employer costs and reasonable
attorneys' fees. The costs and fees awarded may be assessed either
against the employee or against the attorney for the employee, or
against both, as may be determined by the court, based upon the
circumstances of the case. Before bringing a civil action pursuant to
this subdivision, an employee must give the employer notice of the
alleged violation. An employee may not bring a civil action until thirty
days after giving the employer notice of the alleged violation, except
where an employee alleges with particularity that the employer has
demonstrated an unwillingness to cure a violation in bad faith, and may
not bring a civil action if the employer corrects the alleged violation.
An employee must bring a civil action pursuant to this subdivision
within six months from the date the employee had knowledge of the
violation alleged in such civil action.
11. The provisions and remedies of paragraph (b) of subdivision one
and paragraphs (a) and (b) of subdivision two of section two hundred
fifteen of this article shall be applicable to subdivision eight of this
section. Where an action brought by an employee under this subdivision
is found, at any time during the proceedings or upon judgment, to be
frivolous by the court, the court may award to the employer costs and
reasonable attorneys' fees. The costs and fees awarded may be assessed
either against the employee or against the attorney for the employee, or
against both, as may be determined by the court, based upon the
circumstances of the case.
12. Where a violation of this section is alleged to have occurred, the
commissioner or attorney general may apply in the name of the people of
the state of New York for an order enjoining or restraining the
commission or continuance of the alleged unlawful acts. The
commissioner, in consultation with the commissioner of health, shall
promulgate rules and regulations necessary to ensure compliance with
this chapter.
13. The commissioner, in consultation with the commissioner of health,
shall adopt and amend rules and regulations to effectuate the provisions
and purposes of this section.
Violations of certain wage payment provisions; interest, filing
of order as judgment. 1. If the commissioner determines that an employer
has failed to pay wages, benefits or wage supplements required pursuant
to article six (payment of wages), article nineteen (minimum wage act)
or article nineteen-A (minimum wage standards and protective labor
practices for farm workers) of this chapter, or a rule or regulation
promulgated thereunder, the commissioner shall issue to the employer an
order directing compliance therewith, which shall describe particularly
the nature of the alleged violation. A copy of such order shall be
provided to any employee who has filed a complaint and to his or her
authorized representative. Such order shall direct payment of wages or
supplements found to be due, liquidated damages in the amount of one
hundred percent of unpaid wages, and 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.
At the discretion of the commissioner, the commissioner shall have
full authority to provide for inclusion of an automatic fifteen percent
additional amount of damages to come due and owing upon expiration of
ninety days from an order to comply becoming final. The commissioner
shall provide written notice to the employer in the order to comply of
this additional damage.
2. An order issued under subdivision one of this section shall be
final and not subject to review by any court or agency unless review is
had pursuant to section one hundred one of this chapter.
3. (a) Provided that no proceeding for administrative or judicial
review as provided in this chapter shall then be pending and the time
for initiation of such proceeding shall have expired, the commissioner
may file with the county clerk of the county where the employer resides
or has a place of business the order of the commissioner or the decision
of the industrial board of appeals containing the amount found to be
due, including, at the commissioner's discretion, an additional fifteen
percent damages upon any outstanding monies owed. Notwithstanding any
provision to the contrary, in execution of any order or decision filed
by the commissioner pursuant to this section, the commissioner shall
have all the powers conferred upon sheriffs by article twenty-five of
the civil practice law and rules, but the commissioner shall be entitled
to no fee or compensation in excess of the actual expenses paid in the
performance of such duty. Additionally, at the request of an employee,
the commissioner shall assign, without consideration or liability, that
portion of the filed order that constitutes wages, wage supplements,
interest on wages or wage supplements, or liquidated damages due the
employee, to that employee and may file an assignment or order in that
amount in the name of such employee with the county clerk of the county
where the employer resides or has a place of business. The filing of
such assignment, order or decision shall have the full force and effect
of a judgment duly docketed in the office of such clerk. The assignment
may be enforced by the employee 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.
(b) In addition and as an alternative to any other remedy provided by
this section and provided that no proceeding for administrative or
judicial review as provided in this chapter shall then be pending and
the time for initiation of such proceeding shall have expired, the
commissioner may issue a warrant under the official seal of the
commissioner, directed to the sheriff of any county, commanding the
sheriff to levy upon and sell the real and personal property that may be
found within the sheriff's county of an employer who has defaulted in
the payment of any sum determined to be due from such employer for the
payment of such sum together with interest, penalties, and the cost of
executing the warrant, and to return such warrant to the commissioner
and to pay into the fund the money collected by virtue thereof within
sixty days after the receipt of such warrant. The sheriff shall, within
five days after the receipt of the warrant, file with the clerk of the
county a copy thereof, and thereupon such clerk shall enter in the
judgment docket the name of the employer mentioned in the warrant and
the amount of the contribution, interest, and penalties for which the
warrant is issued and the date when such copy is filed. Thereupon the
amount of such warrant so docketed shall become a lien upon the title to
and interest in real property and chattels of the employer against whom
the warrant is issued in the same manner as a judgment duly docketed in
the office of such clerk. The sheriff shall then proceed upon the
warrant in the same manner, and with like effect, as that provided by
law in respect to executions issued against property upon judgments of a
court of record, and the sheriff shall be entitled to the same fees,
which they may collect in the same manner, for the sheriff's services in
executing the warrant.
(c) In the discretion of the commissioner, a warrant of like terms,
force, and effect may be issued and directed to any officer or employee
of the department of labor who may file a copy of such warrant with the
clerk of any county in the state, and thereupon each such clerk shall
docket it and it shall become a lien in the same manner and with the
same force and effect as hereinbefore provided with respect to a warrant
issued and directed to and filed by a sheriff; and in the execution
thereof such officer or employee shall have all the powers conferred by
law upon sheriffs, but they shall be entitled to no fee or compensation
in excess of the actual expenses paid in the performance of such duty.
If a warrant is returned not satisfied in full, the commissioner shall
have the same remedies to enforce the amount thereof as if the
commissioner had recovered judgment for the same.
4. An employer similar in operation and ownership to a prior employer
found to be in violation of article six, nineteen or nineteen-A of this
chapter, shall be deemed the same employer for the purposes of this
section if the employees of the subsequent employer are engaged in
substantially the same work in substantially the same working conditions
under substantially the same supervisors, or if the new entity has
substantially the same production process, produces substantially the
same products and has substantially the same body of customers. Such a
subsequent employer will continue to be subject to this section and
shall be liable for the acts of the prior employer under this section.
Affirmation in lieu of oath. Notwithstanding any other
provision of law, any application for a license, permit, registration,
certificate or notification required by law to be filed with the
department may, in lieu of being acknowledged or sworn to under oath, be
subscribed by the applicant and affirmed by him or her as true under
penalties of perjury.
Public notice of employer violations. The commissioner shall
have the following powers:
1. where an employer is found in violation of article six, nineteen or
nineteen-A of this chapter, to post and/or affix for a period not to
exceed one year a notice of no less than eight and one-half by eleven
inches in an area visible to employees summarizing the violations found
and other information deemed pertinent by the commissioner, according to
such form and manner ordered by the commissioner; and
2. where the violation is for a willful failure to pay all wages as
required by article six, nineteen, or nineteen-A of this chapter, to
post and/or affix for a period not to exceed ninety days in an area
visible to the general public, as ordered by the commissioner, a notice
of no less than eight and one-half by eleven inches as to the violations
found, according to such form and manner ordered by the commissioner.
Any person other than the commissioner or the commissioner's duly
authorized representative who removes, alters, defaces or otherwise
interferes with a notice posted and/or affixed under this section shall
be guilty of a misdemeanor.
3. where an order is issued under section two hundred eighteen of this
article that assesses a civil penalty against an employer for a
repeated, willful, or egregious violation, to direct such employer to
report, by location, and to post on the department's website, for such
period as the commissioner shall determine, (a) the number of permanent
full-time employees, the number of temporary full-time employees, the
number of permanent part-time employees, the number of temporary
part-time employees, and the number of temporary staffing agency
employees performing work for the employer; (b) the hourly rates of such
employees reported in the following brackets: the state minimum wage to
$9.99; $10.00 to $11.99; $12.00 to $14.99; and $15.00 or more; (c) the
number of employees who regularly worked the following number of hours
per week during the relevant calendar period: at least sixty; at least
fifty but fewer than sixty; at least forty but fewer than fifty; at
least thirty-five but fewer than forty; at least thirty but fewer than
thirty-five; at least twenty-five but fewer than thirty; at least twenty
but fewer than twenty-five; at least ten but fewer than twenty; at least
five but fewer than ten; fewer than five. No individual identifying
information of such employees shall be reported or otherwise disclosed
to the department. For the purposes of this section "temporary
employees" shall be those employees who are hired for a period of sixty
days or less during the relevant calendar year, full-time employees
shall be those regularly working forty hours or more per week during the
relevant calendar year, part-time employees shall be those working less
than forty hours per week during the relevant calendar year.
Emergency alert notification system employer registration. 1.
The department, in consultation with the state office of information
technology services, shall provide every employer in the state with a
registration form which shall be created by the state office of
information technology services, to voluntarily register with the
emergency alert notification system. Such registration form shall be
accompanied by a summary of the benefits of registering for alerts from
the emergency alert notification system, including a description of how
the use of the emergency alert system can be utilized to preserve the
health and safety of workers, and an example for dissemination to
workers of information received from an emergency alert notification.
2. For the purposes of this section, the "emergency alert notification
system" shall mean the state office of information technology services
alert system known as alert.ny.gov, or NY-Alert.
ARTICLE 8 Public Work
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.
(f) (i) For the purposes of this subdivision contractors or
subcontractors engaged in custom fabrication shall not be regarded as
material suppliers. For the purposes of this subdivision, a legal day's
work for which the prevailing rate of wages for the New York county in
which the public works project is situated shall be paid to laborers,
workers and mechanics shall include custom fabrication regardless of
whether the custom fabrication occurs on-site, off-site, or in another
jurisdiction and such pay shall be a condition of the contract
concerning all such custom fabrication work involving the contractor or
employer awarded the public work contract, except where the project
includes federal funding that triggers federal rules for wage
requirements, and any subcontractor thereto shall pay the on-site
prevailing wage required for workers at the site of the public work
project to those workers performing the custom fabrication.
(ii) To perform a public works contract each contractor or
subcontractor who employs workers for custom fabrication work related to
a public work project shall maintain certified payrolls and shall comply
with sections two hundred twenty-i and two hundred twenty-j of this
article.
(iii) For the purposes of this subdivision the term "custom
fabrication" shall include the fabrication of exterior or interior wall
panel systems, woodwork, electrical, plumbing, heating, cooling,
ventilation or exhaust duct systems, rebar cages, and mechanical
insulation solely and specifically designed and engineered for a
specified public work project. The term "custom fabrication" does not
include components, portions, modules, or materials that are otherwise
stocked or readily available absent a specified public work project.
(iv) The provisions of this paragraph shall not include any highway,
structure, vehicle or watercraft used to support transporting persons;
the foregoing notwithstanding, this paragraph shall include electrical,
plumbing, heating, cooling, ventilation or mechanical insulation work in
rest areas, transit stations or depots.
(v) Nothing in this paragraph shall be construed to apply the
requirements set forth in section two hundred twenty-four-a of this
article to any custom fabrication associated with the creation or
rehabilitation of any residential dwelling units or manufactured home
parks that are exempted from the definition of "covered projects" as set
forth in section two hundred twenty four-a of this article.
(vi) The contractor awarded a public work contract, or a subcontractor
thereto, shall be required to report to the department of jurisdiction
the intent to utilize custom fabrication in a form and manner prescribed
by the fiscal officer. Such reports shall identify the public work
contract, the name and location of the custom fabrication entity, and
description of the custom fabrication work. The contractor awarded a
public work contract, or subcontractor thereto, shall notify any
additional party contracted with for custom fabrication that the
contract is subject to this subdivision. The department of jurisdiction,
as defined in subdivision three-a of this section and including any
entity to whom such department of jurisdiction delegates their
authority, shall be required to report to the fiscal officer the
intention to contract for custom fabrication in a form and manner
prescribed by the fiscal officer. Such reports shall identify the public
work contract, the name and location of the custom fabrication entity,
and description of the custom fabrication work. Reports submitted to the
fiscal officer shall be subject to disclosure pursuant to article six of
the public officers law.
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. Unless otherwise submitted pursuant to section two
hundred twenty-j 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) Unless otherwise submitted pursuant to section two hundred
twenty-j of this article, 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.
g. 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 concrete and asphalt, as well as any
return hauls, whether empty or loaded and any time spent
loading/unloading, in the counties of Nassau, Putnam, Suffolk, and
Westchester, and in the city of New York.
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.
Statements showing amounts due for wages and supplements to
be filed--Verification. 1. Subcontractors engaged by a public
improvement contractor or its subcontractor shall upon receipt from the
public improvement contractor or its subcontractor of a copy of the
schedule of wages and supplements specified in the public improvement
contract, or of a subsequently issued schedule, provide to such
contractor or its subcontractor a verified statement attesting that the
subcontractor has received and reviewed such schedule of wages and
supplements, or subsequently issued schedule, and agrees that it will
pay the applicable prevailing wages and will pay or provide the
supplements specified therein. Such verified statement shall be filed in
the manner described in subdivisions two and four of this section. It
shall be a violation of this article for any contractor or its
subcontractor to fail to provide to its subcontractor a copy of the
schedule of wages and supplements specified in the contract as well as
any annually determined rate issued subsequent to the schedule specified
in the contract.
2. Before final payment is made by or on behalf of the state, county,
city, town, village or other civil division of the state for any sum or
sums due on account of a contract for a public improvement, it shall be
the duty of the comptroller of the state or the financial officer of the
municipal corporation or other officer or person charged with the
custody and disbursement of the corporate funds applicable to the
contract under and pursuant to which payment is made to require the
contractor to file every verified statement required to be obtained by
the contractor from its subcontractors pursuant to subdivision one of
this section and to file a statement in writing in form satisfactory to
such officer certifying to the amounts then due and owing from such
contractor filing such statement to or on behalf of any and all laborers
for daily or weekly wages or supplements on account of labor performed
upon the work under the contract, setting forth therein the names of the
persons whose wages or supplements are unpaid and the amount due to each
or on behalf of each respectively. Such statement shall also set forth
the amounts known by the contractor to be then due and owing from each
subcontractor, or from a subcontractor of such subcontractor, for wages
or supplements, or shall certify that the contractor has no knowledge of
such amounts owing to or on behalf of any laborers of its
subcontractors, and that in the event it is determined by the
commissioner that the wages or supplements or both of any employees of
such subcontractors have not been paid or provided pursuant to the
appropriate schedule of wages and supplements, the contractor shall be
responsible for payment of such wages or supplements pursuant to the
provisions of section two hundred twenty-three of this article. Such
statement so to be filed shall be verified by the oath of the contractor
that he or she has read such statement subscribed by him or her and
knows the contents thereof, and that the same is true of his or her own
knowledge except with respect to wages and supplements owing by
subcontractors which may be certified upon information and belief.
Amounts due for wages and supplements may be withheld for
benefit of laborers. 1. In case any interested person shall have
previously filed a protest in writing objecting to the payment to any
contractor or subcontractor to the extent of the amount or amounts due
or to become due to him for daily or weekly wages or supplements for
labor performed on the public improvement for which such contract was
entered into, or if for any other reason it may be deemed advisable, the
comptroller of the state or the financial officer of the municipal
corporation or other officer or person charged with the custody and
disbursement of the state or corporate funds applicable to the contract
for such public improvement may deduct from the whole amount of any
payment on account thereof the sum or sums admitted by any contractor or
subcontractor in such statement or statements so filed to be due and
owing by him on account of labor performed on such public improvement
before making payment of the amount certified for payment in any
estimate or voucher, and may withhold the amount so deducted for the
benefit of the laborers, workmen or mechanics whose wages or supplements
are unpaid or not provided, as the case may be, as shown by the verified
statements filed by any contractor or subcontractor, and may pay
directly to any person the amount or amounts shown to be due to him or
his duly authorized collective bargaining labor organization, as the
case may be, for such wages or supplements by the statements filed as
hereinbefore required, thereby discharging the obligation of the
contractor or subcontractor to the person or his duly authorized
collective bargaining labor organization receiving such payment to the
extent of the amount thereof, or
2. a. (1) When any interested person shall file a written complaint
with the fiscal officer, as herein defined, alleging unpaid wages or
supplements due for labor performed on a public improvement for which a
contract has been entered into, and said labor is alleged to have been
performed within the two-year period immediately preceding the date of
the filing of said complaint, or if, on the fiscal officer's own
initiative, unpaid wages or supplements appear to be due, the fiscal
officer shall immediately so notify the financial officer of the civil
division interested, or, if there are insufficient moneys still due to
the contractor or subcontractor to satisfy said wages and supplements,
including interest and penalty, the financial officer of another civil
division which has entered or subsequently enters into a public
improvement contract with the contractor or subcontractor, who shall
withhold from any payment due or earned the contractor or subcontractor
executing any public improvements, sufficient moneys to satisfy said
wages and supplements, including interest at the rate provided herein,
and any civil penalty that may be assessed as provided herein, pending a
final determination. The financial officer shall immediately confirm in
writing to the fiscal officer the amount of money withheld.
(2) If there are still insufficient moneys due or earned to the
contractor or subcontractor, as a result of work performed, to satisfy
such wages and supplements, including interest and penalties, the
financial officer shall immediately notify the fiscal officer, who may
issue a notice of intent to withhold any of the following:
(i) any substantially-owned affiliated entity or any successor or
subsidiary of the contractor or subcontractor;
(ii) any of the partners, if the contractor or subcontractor is a
partnership, or any of the five largest shareholders of the contractor
or subcontractor, as determined by the fiscal officer; or
(iii) any officer of the contractor or subcontractor who knowingly
participated in the violation of this article.
(3) The notice of intent to withhold shall provide that the fiscal
officer intends to instruct the financial officer, not less than ten
days following service of the notice by mail, to withhold sufficient
moneys to satisfy unpaid wages and supplements, including interest at
the rate provided in this article, and any civil penalty that may be
assessed as provided in this article, from any payment due or earned the
notified party under any public improvement contract pending final
determination. The notice of withholding shall provide that within
thirty days following the date of the notice of withholding the notified
party may contest the withholding on the basis that the notified party
is not a partner or top five shareholder of the subcontractor or
contractor, an officer of the contractor or subcontractor who knowingly
participated in the violation of this article, a substantially-owned
affiliated entity, or successor. If the notified party fails to contest
the notice of withholding, or if the fiscal officer, after reviewing the
information provided by the notified party in such contest, determines
that the notified party is a partner or top five shareholder, any
officer of the contractor or subcontractor who knowingly participated in
the violation of this article, or a substantially-owned affiliated
entity, or successor, the fiscal officer may instruct the financial
officer to withhold sufficient moneys to satisfy said wages and
supplements, including interest at the rate provided in this article,
and any civil penalty that may be assessed as provided in this article
from any payment due the notified party under any public improvement
contract pending the final determination.
(4) The financial officer shall immediately implement the notice of
withholding and confirm in writing to the fiscal officer the amount of
money to be withheld. If the notified party contests the withholding
after a withholding has been effected, and if the fiscal officer
determines, that the notified party is not a partner or top five
shareholder, an officer of the contractor or subcontractor who knowingly
participated in the violation of this article, or a substantially-owned
affiliated entity or successor, the fiscal officer shall immediately
notify the financial officer to release all payments being withheld from
the notified party and the financial officer shall implement the notice.
b. Moneys withheld pursuant to this section shall be held by the
financial officer for the sole and exclusive benefit of the workers
employed on said public improvement and for payment of any civil penalty
that may be assessed as provided herein and shall not be used for any
other purpose except upon court order. Any person, partnership,
association, corporation or governmental body who files a lien or
commences a judicial proceeding with respect to any monies withheld
pursuant to this section shall notify the fiscal officer in writing of
the lien or claim on or before the date of filing of the lien or
commencement of the judicial proceeding. In any proceeding to obtain
moneys withheld pursuant to this section by any person, partnership,
association, corporation or governmental body, the fiscal officer shall
have the right to appear and be heard.
c. The fiscal officer shall cause an investigation to be made to
determine whether any amounts are due to the laborers, workmen or
mechanics, or on their respective behalves, on such public improvement,
for labor performed after the commencement of the three-year period
immediately preceding the filing of the complaint or the commencement of
the investigation on his own initiative, as the case may be, and 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 a
statement of the facts disclosed upon such investigation, which notice
shall be served personally or by mail on all interested persons,
including the person complained against and upon the financial officer
of the civil division interested; such person complained against 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 said notice. The fiscal officer
in such an investigation shall be deemed to be acting in a judicial
capacity and shall have the rights 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
investigation and hearing shall be expeditiously conducted, and upon
such hearing and investigation, the fiscal officer shall determine the
issues raised thereon and shall make and file an order in his office
stating such determination and forthwith serve a copy of such order,
either personally or by mail, together with notice of filing, upon the
financial officer of the civil division interested, and the parties to
such proceedings and, if the fiscal officer be the comptroller or other
analogous officer of a city, upon the commissioner. 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.
d. In addition to directing payment of wages or supplements including
interest found to be due, the order of the fiscal officer 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 of the employer or
any successor or substantially-owned affiliated entity or any of the
partners if the contractor or subcontractor is a partnership or any of
the five largest shareholders of the contractor or subcontractor, as
determined by the fiscal officer, and any officer of the contractor or
subcontractor who knowingly participated in the violation of this
article, and the failure to comply with recordkeeping or other non-wage
requirements. Upon the fiscal officer's determination of the penalty,
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.
e. Upon the entry and service of such order, the financial officer of
the civil division interested shall pay to the claimant, from the moneys
due to the contractor or subcontractor, the amount of the claim as
determined by the fiscal officer and the amount of the civil penalty, if
any, shall be paid as provided herein, provided that no proceeding
pursuant to article seventy-eight of the civil practice law and rules
for review of said order is commenced by any party aggrieved thereby
within thirty days from the date said order was filed in the office of
the fiscal officer. Said proceeding shall be commenced directly in the
appellate division of the supreme court. Where the fiscal officer is the
commissioner, the civil 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. In the event that such a
proceeding for review is instituted, moneys sufficient to satisfy the
claim and civil penalty shall be set aside by the financial officer
interested as provided in paragraph b of this subdivision, subject to
the order of the court.
f. If the financial officer of the civil division interested fails to
pay to the claimant the amount of the claim as determined by the fiscal
officer within ten days after the expiration of the contractor's time to
commence a proceeding for review of the fiscal officer's order or, if
such a proceeding has been commenced, within ten days after entry and
service of a court order confirming the fiscal officer's order, the
civil division interested shall pay to the claimant interest on the
claim 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 from the date the financial officer was required to pay
the claim as provided herein to the date of payment; provided, however,
this paragraph shall not apply if the failure of the financial officer
of the civil division interested to pay the amount of the claim is
pursuant to court order.
g. When a final determination has been made in favor of a complainant
and the contractor or subcontractor found violating this article has
failed to make payment as required by the order of the fiscal officer,
and provided that no relevant proceeding for judicial review shall then
be pending and the time for initiation of such proceeding shall have
expired, the fiscal officer may file a copy of the order of the fiscal
officer containing the amount found to be due with the county clerk of
the county of residence or place of business of any of the following:
(i) any substantially-owned affiliated entity or any successor of the
contractor or subcontractor;
(ii) any of the partners if the contractor or subcontractor is a
partnership or any of the five largest shareholders of the contractor or
subcontractor, as determined by the fiscal officer; or
(iii) any officer of the contractor or subcontractor who knowingly
participated in the violation of this article; provided, however, that
the fiscal officer shall within five days of the filing of the order
provide notice thereof to the partner or top five shareholders or
successor or substantially-owned affiliated entity or other entity
determined to have violated any provision of subdivision five of section
two hundred twenty of this article or this subdivision; the notified
party may contest the filing on the basis that it is not a partner or
top five shareholder, any officer of the contractor or subcontractor who
knowingly participated in the violation of this article, or successor or
substantially-owned affiliated entity. If, after reviewing the
information provided by the notified party in support of such contest,
the fiscal officer determines that the notified party is not subject to
the provision of this paragraph, the fiscal officer shall immediately
withdraw his filing of the order.
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.
h. When a final determination has been made against a subcontractor in
favor of a complainant and the contractor has made payment to the
complainant of any wages and interest due the complainant and any civil
penalty that has been assessed, and providing that no relevant
proceeding for judicial review shall then be pending and the time for
initiation of such proceeding shall have expired, the contractor may
file a copy of the order of the fiscal officer containing the amount
found to be due with the county clerk of the county of residence or
place of business of the subcontractor. The filing of such order shall
have the full force and effect of a judgment duly docketed in the office
of such clerk. The judgment may be docketed in favor of the contractor
who may proceed as a judgment creditor against the subcontractor for the
recovery of all monies paid by the contractor under such order.
Provided that no proceeding for judicial review shall then be pending
and the time for initiation of such proceeding shall have expired, the
commissioner 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 an
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 commissioner 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.
2-a. The fiscal officer shall make an inquiry as to the willfulness of
the alleged violation which is the subject of an investigation pursuant
to subdivision two of this section. In the event a formal hearing is
held pursuant to 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 such violation. No finding of
willfullness made pursuant to the provisions of this subdivision shall
be dispositive for the purposes of section one hundred ninety-eight-a of
this chapter or of the last undesignated paragraph of subdivision three
of section two hundred twenty of this article.
3. a. When a final determination has been made and such determination
is in favor of the complainant, said complainant may in addition to any
other remedy provided by this article, institute an action in any court
of appropriate jurisdiction against the person or corporation found
violating this article, any substantially-owned affiliated entity or any
successor of the contractor or subcontractor, any officer of the
contractor or subcontractor who knowingly participated in the violation
of this article, and any of the partners if the contractor or
subcontractor is a partnership or any of the five largest shareholders
of the contractor or subcontractor, as determined by the fiscal officer,
for the recovery of the difference between the sum, if any, actually
paid to him by the aforesaid financial officer pursuant to said order
and the amount found to be due him as determined by said order. Such
action must be commenced within three years from the date of the filing
of said order, or if the said order is reviewed in a proceeding pursuant
to article seventy-eight of the civil practice law and rules, within
three years after the termination of such review proceeding.
b. (1) When two final determinations have been rendered against a
contractor, subcontractor, successor, or any substantially-owned
affiliated entity of the contractor or subcontractor, any of the
partners if the contractor or subcontractor is a partnership, any
officer of the contractor or subcontractor who knowingly participated in
the violation of this article, any of the shareholders who own or
control at least ten per centum of the outstanding stock of the
contractor or subcontractor or any successor within any consecutive
six-year period determining that such contractor, subcontractor,
successor, or any substantially-owned affiliated entity of the
contractor or subcontractor, any of the partners or any of the
shareholders who own or control at least ten per centum of the
outstanding stock of the contractor or subcontractor, any officer of the
contractor or subcontractor who knowingly participated in the violation
of this article has wilfully failed to pay the prevailing rate of wages
or to provide supplements in accordance with this article, whether such
failures were concurrent or consecutive and whether or not such final
determinations concerning separate public work projects are rendered
simultaneously, such contractor, subcontractor, successor, or any
substantially-owned affiliated entity of the contractor or
subcontractor, any of the partners if the contractor or subcontractor is
a partnership or any of the shareholders who own or control at least ten
per centum of the outstanding stock of the contractor or subcontractor,
any officer of the contractor or subcontractor who knowingly
participated in the violation of this article shall be ineligible to
submit a bid on or be awarded any public work contract or subcontract
with the state, any municipal corporation or public body for a period of
five years from the second final determination, provided, however, that
where any such final determination involves the falsification of payroll
records or the kickback of wages or supplements, the contractor,
subcontractor, successor, or any substantially-owned affiliated entity
of the contractor or subcontractor, any partner if the contractor or
subcontractor is a partnership or any of the shareholders who own or
control at least ten per centum of the outstanding stock of the
contractor or subcontractor, any officer of the contractor or
subcontractor who knowingly participated in the violation of this
article shall be ineligible to submit a bid on or be awarded any public
work contract with the state, any municipal corporation or public body
for a period of five years from the first final determination.
(2) When any person or corporation, or any officer or shareholder who
owns or controls at least ten per centum of the outstanding stock of
such corporation, has been convicted of a felony offense for conduct
relating to obtaining or attempting to obtain, or performing or
attempting to perform a public work contract with the state, any
municipal corporation, public benefit corporation or public body, and
such felony offense is a violation of:
(i) this chapter; or
(ii) coercion in the first degree as defined in section 135.65 of the
penal law, grand larceny in the fourth degree as defined in section
155.30 of the penal law, grand larceny in the third degree as defined in
section 155.35 of the penal law, grand larceny in the second degree as
defined in section 155.40 of the penal law, grand larceny in the first
degree as defined in section 155.42 of the penal law, forgery in the
second degree as defined in section 170.10 of the penal law, forgery in
the first degree as defined in section 170.15 of the penal law, criminal
possession of a forged instrument in the second degree as defined in
section 170.25 of the penal law, criminal possession of a forged
instrument in the first degree as defined in section 170.30 of the penal
law, criminal possession of forgery devices as defined in section 170.40
of the penal law, falsifying business records in the first degree as
defined in section 175.10 of the penal law, tampering with public
records in the first degree as defined in section 175.25 of the penal
law, offering a false instrument for filing in the first degree as
defined in section 175.35 of the penal law, issuing a false certificate
as defined in section 175.40 of the penal law, insurance fraud in the
fourth degree as defined in section 176.15 of the penal law, insurance
fraud in the third degree as defined in section 176.20 of the penal law,
insurance fraud in the second degree as defined in section 176.25 of the
penal law, insurance fraud in the first degree as defined in section
176.30 of the penal law, aggravated insurance fraud as defined in
section 176.35 of the penal law, commercial bribing in the first degree
as defined in section 180.03 of the penal law, commercial bribe
receiving in the first degree as defined in section 180.08 of the penal
law, bribing a labor official as defined in section 180.15 of the penal
law, bribe receiving by a labor official as defined in section 180.25 of
the penal law, criminal impersonation in the second degree as defined in
section 190.25 of the penal law, criminal impersonation in the first
degree as defined in section 190.26 of the penal law, criminal usury in
the second degree as defined in section 190.40 of the penal law,
criminal usury in the first degree as defined in section 190.42 of the
penal law, scheme to defraud in the first degree as defined in section
190.65 of the penal law, bribery in the third degree as defined in
section 200.00 of the penal law, bribery in the second degree as defined
in section 200.03 of the penal law, bribery in the first degree as
defined in section 200.04 of the penal law, bribe receiving in the third
degree as defined in section 200.10 of the penal law, bribe receiving in
the second degree as defined in section 200.11 of the penal law, bribe
receiving in the first degree as defined in section 200.12 of the penal
law, rewarding official misconduct in the second degree as defined in
section 200.20 of the penal law, rewarding official misconduct in the
first degree as defined in section 200.22 of the penal law, bribe giving
for public office as defined in section 200.45 of the penal law, or the
attempted commission of any of the offenses set forth in this paragraph,
provided that such offense constitutes a felony; or
(iii) criminal solicitation in the second degree as defined in section
100.10 of the penal law, conspiracy in the fourth degree as defined in
section 105.10 of the penal law, conspiracy in the second degree as
defined in section 105.15 of the penal law, or criminal facilitation in
the second degree as defined in section 115.05 of the penal law,
provided that such offense is a felony and was committed in connection
with one or more of the crimes listed in clause (ii) of this
subparagraph; or
(iv) article twenty-two of the general business law; or
(v) assault in the second degree as defined in section 120.05 of the
penal law, assault in the first degree as defined in section 120.10 of
the penal law, reckless endangerment in the first degree as defined in
section 120.25 of the penal law, criminally negligent homicide as
defined in section 125.10 of the penal law, manslaughter in the second
degree as defined in section 125.15 of the penal law, manslaughter in
the first degree as defined in section 125.20 of the penal law and
murder in the second degree as defined in section 125.25 of the penal
law, provided that the victim was an employee of such person or
corporation and further provided that such offense arose from actions or
matters related to the protection of the health or safety of employees
at a work site;
such person shall be ineligible to submit a bid on or be awarded any
public works contract with the state, any municipal corporation, public
benefit corporation or public body for a period of five years from the
date of conviction.
* (3)(i) When any contractor, subcontractor, or person is listed by
the federal government as excluded from receiving federal contracts and
certain subcontracts, assistance or benefits, pursuant to 48 C.F.R.
Subpart 9-4, such contractor, subcontractor, or person shall be
ineligible to submit a bid on or be awarded any public work contract
with the state, any municipal corporation, public benefit corporation or
public body during such period of exclusion, unless the department
having jurisdiction determines, after public notice and comment, that
there is a compelling reason, consistent with 48 C.F.R. § 9.405, to
allow such contractor, subcontractor, or person to submit a bid or to be
awarded a particular public work contract. Public notice shall include
notice provided to the department, which shall post such notice on its
website.
(ii) When the fiscal officer determines that a contractor,
subcontractor or person is a "substantially owned-affiliated entity," as
defined by paragraph g of subdivision five of section two hundred twenty
of this article, in relation to a contractor, subcontractor, or person
ineligible to submit a bid or be awarded a public work contract under
clause (i) of this subparagraph, such substantially owned-affiliated
entity shall be ineligible to submit a bid or be awarded any public work
contract with the state, any municipal corporation, public benefit
corporation for the duration of the remaining period of exclusion of the
contractor, subcontractor, or person under clause (i) of this
subparagraph. In order for a substantially owned-affiliated entity to be
debarred pursuant to this clause, such substantially owned-affiliated
entity must have had substantial involvement in the day to day
management of the contractor, subcontractor or person debarred under
clause (i) of this subparagraph. Such substantially owned-affiliated
entity shall be provided with written notice from the fiscal officer of
the proposed determination and shall be afforded an opportunity to be
heard regarding the ineligible determination by the fiscal officer
within thirty calendar days of the written notice. In addition, the
department having jurisdiction may determine, after public notice and
comment, that there is a compelling reason, consistent with 48 C.F.R. §
9.405, to allow such substantially owned-affiliated entity to submit a
bid or to be awarded a particular public work contract. Public notice
shall include notice provided to the department, which shall post such
notice on its website.
(iii) Any determinations made pursuant to this subparagraph shall be
subject to review pursuant to article seventy-eight of the civil
practice law and rules.
* NB Repealed March 18, 2027
c. Nothing in this subdivision shall be construed as affecting any
provision of any other law or regulation relating to the awarding of
public contracts except that the ineligibility for submission of any bid
or receipt of any award of public work set forth in this chapter shall
not be subject to any mitigation or judicial abatement, including, but
not limited to, the provisions of article twenty-three of the correction
law, and such ineligibility shall continue in full force and effect for
the entire period set forth above.
Contractor or subcontractor verifying false statement guilty
of perjury.
Any contractor or subcontractor who shall upon his oath verify any
statement required to be filed under this act which is known by him to
be false shall be guilty of perjury and punishable as provided by the
penal law.
Minimum rate of wage and supplement. The advertised
specifications for every contract for the construction, reconstruction,
maintenance and/or repair of public work to which the state, county,
town and/or village is a party shall contain a provision stating the
minimum hourly rate of wage which can be paid and the minimum supplement
that can be provided, as shall be designated by the industrial
commissioner, to the laborers, workingmen or mechanics employed in the
performance of the contract, either by the contractor, sub-contractor or
other person doing or contracting to do the whole or a part of the work
contemplated by the contract, and the contract shall contain a
stipulation that such laborers, workingmen or mechanics shall be paid
not less than such hourly minimum rate of wage and provided supplements
not less than the prevailing supplements.
Any person or corporation that wilfully pays after entering into such
contract, less than such stipulated minimums regarding wages and
supplements shall be guilty of a misdemeanor and upon conviction shall
be punished, for a first offense by a fine of five hundred dollars or by
imprisonment for not more than thirty days, or by both fine and
imprisonment; for a second offense by a fine of one thousand dollars,
and in addition thereto the contract on which the violation has occurred
shall be forfeited; and no such person or corporation shall be entitled
to receive any sum nor shall any officer, agent or employee of the state
pay the same or authorize its payment from the funds under his charge or
control to any person or corporation for work done upon any contract, on
which the contractor has been convicted of second offense in violation
of the provisions of this section.
Provisions in contracts prohibiting discrimination on account
of race, creed, color or national origin in employment of citizens upon
public works. Every contract for or on behalf of the state or a
municipality for the construction, alteration or repair of any public
building or public work or for the manufacture, sale or distribution of
materials, equipment or supplies shall contain provisions by which the
contractor with the state or municipality agrees:
(a) That in the hiring of employees for the performance of work under
this contract or any subcontract hereunder, no contractor,
subcontractor, nor any person acting on behalf of such contractor or
subcontractor, shall by reason of race, creed, color, disability, sex or
national origin discriminate against any citizen of the state of New
York who is qualified and available to perform the work to which the
employment relates;
(b) That no contractor, subcontractor, nor any person on his behalf
shall, in any manner, discriminate against or intimidate any employee
hired for the performance of work under this contract on account of
race, creed, color, disability, sex or national origin;
(c) That there may be deducted from the amount payable to the
contractor by the state or municipality under this contract a penalty of
fifty dollars for each person for each calendar day during which such
person was discriminated against or intimidated in violation of the
provisions of the contract;
(d) That this contract may be cancelled or terminated by the state or
municipality, and all moneys due or to become due hereunder may be
forfeited, for a second or any subsequent violation of the terms or
conditions of this section of the contract; and
(e) The aforesaid provisions of this section covering every contract
for or on behalf of the state or a municipality for the manufacture,
sale or distribution of materials, equipment or supplies shall be
limited to operations performed within the territorial limits of the
state of New York.
Labor policy of the state with regard to public work
contracts; participation in an international boycott prohibited. It
shall be the labor policy of the state that contracts for the
construction, reconstruction, maintenance and/or repair of public work
or for services performed or to be performed or for goods sold or to be
sold in an amount exceeding five thousand dollars to which the state or
any public department, agency or official thereof intends to be a party
shall not be executed with any person, firm, partnership or corporation
which is participating or has participated at any time in an
international boycott in violation of the provisions of the United
States export administration act of nineteen hundred sixty-nine, as
amended, or the export administration act of nineteen hundred
seventy-nine, as amended, or the regulations of the United States
department of commerce promulgated thereunder.
Additional enforcement of article. For the purpose of
enforcing this article, the affected employee may bring an action to
recover from the bond which is required by section one hundred
thirty-seven of the state finance law, of the contractor, the
subcontractor or both, unpaid wages and supplements, including interest
as provided for in subdivision eight of section two hundred twenty of
this article, due to persons furnishing labor to either the contractor
or subcontractor. Said action may be brought against the contractor, the
subcontractor, or the issuer of such bond, without prior notice, within
one year of the date of the last alleged underpayment, or within one
year of the date of the filing of an order by the commissioner or other
fiscal officer determining a wage or supplement underpayment. The
employee may permit an employee organization or the commissioner or
other fiscal officer to commence such action on his behalf.
Occupational Safety and Health Administration (OSHA)
construction safety and health course. The advertised specifications for
every contract for the construction, reconstruction, maintenance and/or
repair of public work to which the state or a municipality is a party,
where the total cost of all work to be performed under the contract is
at least two hundred fifty thousand dollars, shall contain a provision
requiring that all laborers, workers, and mechanics employed in the
performance of the contract on the public work site, either by the
contractor, sub-contractor or other person doing or contracting to do
the whole or a part of the work contemplated by the contract, shall be
certified prior to performing any work on the project as having
successfully completed a course in construction safety and health
approved by the United States department of labor's occupational safety
and health administration that is at least ten hours in duration.
Registration system for contractors and subcontractors. 1. As
used in this section:
a. "Contractor" means any entity entering into a contract to perform
construction, demolition, reconstruction, excavation, rehabilitation,
repair, installation, renovation, alteration, or custom fabrication,
which is subject to the provisions of this article.
b. "Subcontractor" means any entity subcontracting with a contractor
to perform construction, demolition, reconstruction, excavation,
rehabilitation, repair, installation, renovation, alteration, or custom
fabrication, which is subject to the provisions of this article.
c. "Covered project" means any project subject to the provisions of
this article, including but not limited to, public work projects and
those subject to the provisions of sections two hundred twenty-four-a
and two hundred twenty-four-d of this article.
2. a. In accordance with subdivision six of this section, a contractor
or subcontractor shall register in writing with the commissioner on a
form provided by the commissioner. The form shall require the following
information:
i. The name, principal business address and telephone number of the
contractor or subcontractor.
ii. Whether the contractor is a person, partnership, association,
joint stock company, trust, corporation, or other form of business
entity.
iii. The name and address of each person with an ownership interest in
the contractor or subcontractor and the percentage interest, except that
if the contractor or subcontractor is a publicly-traded corporation, the
contractor or subcontractor shall supply the names and addresses of the
corporation's officers.
iv. The contractor's or subcontractor's tax identification number,
unemployment insurance registration number, and workers' compensation
board employer number.
v. Whether the contractor or subcontractor has any outstanding wage
assessments against it, pursuant to this article.
vi. Whether the contractor or subcontractor has been debarred under
New York or federal law within the last eight years.
vii. Whether the contractor or subcontractor has been debarred
pursuant to the laws of any other state within the last eight years.
viii. Whether the contractor or subcontractor has been finally
determined by the appropriate authority to have violated any labor laws
or employment tax laws including, but not limited to, the requirement to
have workers' compensation coverage, payment of workers' compensation
premiums, deduction and payment of income taxes, payment of unemployment
insurance contributions or payment of prevailing wage.
ix. Whether the contractor or subcontractor has been finally
determined by the appropriate authority to have violated any laws
establishing workplace safety standards including the federal
Occupational Safety and Health Act.
x. Whether or not the contractor or subcontractor is associated, or a
signatory to, an apprenticeship program under article twenty-three of
this chapter. If so, the apprenticeship program shall be provided by the
contractor or subcontractor.
xi. Whether or not the contractor or subcontractor is a minority or
women-owned business enterprise pursuant to the provisions of article
fifteen-A of the executive law.
b. At the time of registration, and upon request, the contractor or
subcontractor shall submit to the commissioner documentation
demonstrating that the contractor or subcontractor has workers'
compensation insurance coverage for all workers as required by law,
including any and all declarations and information pages related to such
policy which shall be electronically accessible and searchable to the
public, provided however, that in no event shall a worker's name or
other personal identifying information be included in such database.
This information shall be made readily available to the public by the
commissioner within forty-eight hours of the initial public request.
3. The contractor or subcontractor shall pay a non-refundable
registration fee of two hundred dollars to the commissioner which shall
be paid to the general fund. The commissioner, through regulations,
shall reduce the registration fee associated with minority or
women-owned business enterprises in order to promote the use of such
businesses on covered projects.
4. Unless the commissioner determines a contractor or subcontractor
unfit to be registered, the commissioner shall issue a certificate of
registration to the contractor or subcontractor upon receipt of the fee,
form and documentation required by this section. A registration
certificate shall be valid for two calendar years from the date of
registration. Registrations may be renewed not less than ninety days
before the expiration date of the immediately preceding registration.
The commissioner shall promulgate regulations to determine under what
circumstances a contractor or subcontractor would be unfit to be
registered pursuant to this section; provided that a contractor or
subcontractor shall not be determined to be unfit solely because a
contractor or subcontractor was debarred within the last eight years,
unless such contractor or subcontractor is currently debarred or
ineligible pursuant to subdivision three of section two hundred twenty-b
of this article or section one hundred forty-one-b of the workers'
compensation law or such contractor or subcontractor is subject to a
final administrative or court order for violation of state or federal
prevailing wage law which has not been fully satisfied, provided further
that a contractor that has made payment for unpaid wages on behalf of a
subcontractor shall not be determined unfit solely as a result of
actions of a subcontractor. The commissioner shall, before making a
determination of unfitness, notify the contractor or subcontractor in
writing of the reasons for such proposed determination and afford the
contractor or subcontractor an opportunity to cure or be heard prior to
the determination. Such notice shall notify the contractor or
subcontractor that a request for a hearing must be made within thirty
days after issuance of such notification. If a hearing is requested,
such hearing shall be held at such time and place as the commissioner
shall prescribe. If the contractor or subcontractor fails to make a
written request for a hearing within thirty days after issuance of such
notification, then the notification of determination shall become the
final determination of the commissioner. Any documents, reports, or
information that form a basis for such determination shall be provided
to the contractor or subcontractor no less than ten days before the
hearing. For purposes of this subdivision, the term "unfit" shall mean a
contractor or subcontractor who the commissioner determines to be unable
to lawfully adhere to contractual obligations of this article and
responsibilities including prevailing wage requirements pursuant to this
article. Such determination shall be based on a clearly documented
history, official record of past dealings, or a present demonstrable
inability to lawfully adhere to such obligations and responsibilities.
5. If the registration of a contractor or subcontractor lapses while
performing contracted work on a covered project, that contractor or
subcontractor shall not be prohibited from completing its contracted
work on such covered project. For a contractor or subcontractor who has
been determined unfit while performing contracted work on a covered
project at the time of such determination, then the continuation of its
contracted work shall only continue if a monitor is appointed to oversee
the work completed at the sole expense of such contractor or
subcontractor. Nothing herein shall prevent a contractor or
subcontractor from fulfilling contractual obligations solely based on
receiving a notice of proposed determination of unfitness. Such monitor
must be approved by the commissioner.
6. No contractor shall bid on a contract for public work unless such
contractor is registered pursuant to this section. In the case of a
covered project subject to section two hundred twenty-four-a or two
hundred twenty-four-d of this article, or other projects that are
privately owned and subject to provisions of this article, contractors
must register prior to commencing any work on a covered project.
Subcontractors must be registered prior to commencing any work on a
covered project. Further, each contractor must submit their certificate
of registration at the time the bid is made. Applications for
registration shall not be accepted as a substitute for a certificate of
registration for the purposes of this section.
7. For covered projects as defined in section two hundred
twenty-four-a or two hundred twenty-four-d of this article or other
projects that are privately owned and subject to provisions of this
article, the owner or developer of such covered project must ensure that
any contractor that is hired, or subcontractor that is hired, to perform
work on such project is registered pursuant to this section prior to
that contractor or subcontractor commencing work on the covered project
for which it was contracted.
8. a. A contractor who bids on a contract for public work knowing that
it is not registered, or allows a subcontractor to commence work on a
covered project that it knows or should have known is not registered
pursuant to subdivision six of this section shall, after notice and a
hearing, be subject to a civil penalty of up to one thousand dollars.
For covered projects performed under private contract, as defined in
section two hundred twenty-four-a or two hundred twenty-four-d of this
article, or for other projects that are privately owned and subject to
the provisions of this article, an owner or developer who commences work
with a contractor or subcontractor that it knows or should have known is
not registered pursuant to subdivision six of this section shall, after
notice and hearing, be subject to a civil penalty of up to one thousand
dollars. A contractor or subcontractor who commences work on a covered
project knowing that it is not registered or contracts with a
subcontractor that it knows or should have known is not registered for
work on a covered project shall, after notice and hearing be subject to
a civil penalty of up to one thousand dollars.
b. The commissioner may revoke or suspend a registration if a
contractor or subcontractor has been finally determined to be in
violation of the prevailing wage requirements of this article, provided
however that such contractor or subcontractor shall be afforded a
hearing prior to any revocation or suspension.
c. Nothing in this section shall be construed to limit or supersede
the authority of any state or municipal entity to enforce existing labor
laws, safety standards, regulations, codes or any other existing laws
relative to public work.
d. A registration pursuant to this section is not necessary for a bid
or work on a contract for public work and penalties pursuant to this
section shall not apply when a state of emergency is declared pursuant
to section twenty-four of the executive law, when the governor declares
a disaster emergency pursuant to section twenty-eight of the executive
law, or when the President issues a major disaster or emergency
declaration and such work arises from or is in connection with the
actual or impending declared emergency or disaster or pursuant to an
emergency construction contract, or other contract entered into due to
an urgent and unexpected event where public safety or the conservation
of public resources is at risk, as authorized by law, including but not
limited to the public buildings law, the state finance law, the general
municipal law, or the public authorities law.
9. The commissioner shall establish and maintain an online system to
make available all registrations and disclosures required by this
section, except for any personally identifiable information, including
home address and percentages of ownership interest in privately held
entities.
10. The commissioner shall prescribe regulations necessary to carry
out the provisions of this section.
Payroll reporting requirements. 1. As used in this section:
a. "Contractor" means any entity entering into a contract to perform
construction, demolition, reconstruction, excavation, rehabilitation,
repair, installation, renovation, alteration, or custom fabrication,
which is subject to the provisions of this article.
b. "Fiscal officer" for purposes of this section shall have the same
meaning as set forth in paragraph e of subdivision five of section two
hundred twenty of this article.
c. "Subcontractor" means any entity subcontracting with a contractor
to perform construction, demolition, reconstruction, excavation,
rehabilitation, repair, installation, renovation, alteration, or custom
fabrication, which is subject to the provisions of this article.
d. "Covered project" means any project subject to the provisions of
this article, including but not limited to, public work projects,
privately owned prevailing wage projects and those subject to the
provisions of sections two hundred twenty-four-a, two hundred
twenty-four-d and sections two hundred twenty-four-f of this article.
e. "Monthly" means at least once every thirty days while work is being
performed on a covered project and within thirty days after the final
day of work was performed on the covered project.
2. Each contractor and subcontractor working on a covered project
shall furnish records consistent with subparagraph (iii) of paragraph a
of subdivision three-a of section two hundred twenty of this article
directly to the fiscal officer in the following manner:
a. submit records monthly unless such covered project contract
requires more frequent reporting requirements;
b. in an electronic format, in a manner prescribed by the
commissioner, on the department's website;
c. provide documentation of each fund, plan or program where any
supplement has been paid or provided for; and
d. provide a copy of the payment bond required by section one hundred
thirty-seven of the state finance law, including all information open to
public inspection.
2-a. For purposes of subparagraphs (iii) and (iv) of paragraph a of
subdivision three-a of section two hundred twenty of this article, the
furnishing of electronic records consistent with subdivision two of this
section by a contractor or subcontractor shall satisfy the requirement
that such contractor or subcontractor submit a transcript of the
original payroll record and that the appropriate department of
jurisdiction collect and maintain such payroll records.
3. a. A contractor or subcontractor who fails to furnish records
pursuant to this section relating to its employees, shall be subject to
a penalty by the fiscal officer of one hundred dollars for each day such
contractor or subcontractor is in violation of this section.
b. The fiscal officer shall not level a penalty pursuant to this
subdivision until such contractor or subcontractor fails to furnish such
electronic records fourteen days after the requirements set forth in
paragraph a of subdivision two of this section.
c. Such penalties pursuant to this subdivision shall only accrue to
the actual contractor or subcontractor who failed to furnish such
required records.
d. All penalties collected pursuant to this section shall be used by
the fiscal officer for prevailing wage enforcement.
e. The fiscal officer shall undertake activities it deems necessary to
monitor and enforce compliance with this section.
4. No later than December thirty-first, two thousand twenty-five, the
department shall develop and implement an online database of electronic
certified payroll records submitted pursuant to this section. Such
database shall be publicly accessible, but not include personally
identifiable information. Such database shall be searchable, including
each available payroll record subset. In a city with a population in
excess of one million, the commissioner shall ensure access to such
online database is provided to the fiscal officer in a manner that
allows such officer to monitor and enforce the provisions of this
section.
5. Within thirty days of the effective date of this section, the mayor
of a city with a population in excess of one million shall notify the
commissioner that such city elects to develop and implement an online
database of electronic certified payroll records submitted pursuant to
this section for every contractor and subcontractor working on a public
work subject to section two hundred twenty of this article performed by
or on behalf of the city. Such database shall be publicly accessible on
the city's website and through the department's website, shall not
include personally identifiable information and shall comply with all
provisions of this chapter. The city comptroller shall have access to
such online database in a manner that allows such officer to monitor and
enforce the provisions of this section. Where such city comptroller
determines that such database does not comply with all provisions of
this chapter, or where such city fails to develop such database by
December first, two thousand twenty-five, upon notice to the
commissioner, all such city agency projects shall be covered by the
commissioner's database and such contractors and subcontractors shall
furnish records to the commissioner in accordance with this section.
Company stores. No person engaged in construction of public
work under contract with the state or with any municipal corporation
either as a contractor or subcontractor shall, directly or indirectly,
conduct what is commonly known as a company store if there is any store
selling supplies within two miles of the place where such contract is
being executed. Charges for groceries, provisions, board, lodging or
clothing shall not be a valid off-set in behalf of the employer against
wages.
Permits required. No person or persons shall conduct what is
commonly known as a company store or a labor camp for the purpose of
selling provisions or clothing or for providing board and/or lodging to
workmen in the employ of a contractor, subcontractor or other person
doing the whole or a part of the work contemplated by a contract awarded
by the state or a municipal corporation without a permit from the
industrial commissioner.
Issue of permits. 1. An application for a permit shall be
made to the commissioner upon blanks furnished by him, and shall state
under oath:
a. Name of owner or lessee of the property.
b. A list of the provisions and clothing it is intended to sell.
c. The maximum number of boarders or lodgers it is intended to
accommodate.
2. With the application there shall be presented to the commissioner
proof of the applicant's citizenship and moral character, and if a
corporation, similar proof concerning its officers.
3. The applicant shall pay to the commissioner a permit fee of fifty
dollars.
4. On approval of the application, the commissioner shall issue a
permit only for the place designated in the application, and shall not
be transferable. The commissioner may revoke the permit on notice and
for cause shown.
5. Every operator of such a store or camp shall keep prominently
posted in a conspicuous place on the premises a statement printed in the
English language and in the language understood by the majority of the
patrons, specifying the rate of charges by the day and week for lodging,
meals, clothing and provisions supplied, and a copy thereof shall be
filed with the commissioner.
Project labor agreements. 1. Definition. "Project labor
agreement" shall mean a pre-hire collective bargaining agreement between
a contractor and a bona fide building and construction trade labor
organization establishing the labor organization as the collective
bargaining representative for all persons who will perform work on a
public work project, and which provides that only contractors and
subcontractors who sign a pre-negotiated agreement with the labor
organization can perform project work.
2. Contracts. Notwithstanding the provisions of any general, special
or local law, or judicial decision to the contrary:
(a) Any agency, board, department, commission or officer of the state
of New York, or of any political subdivision thereof as defined in
section one hundred of the general municipal law, municipal corporation
as defined in section sixty-six of the general construction law, public
benefit corporation, or local or state authority as defined in section
two of the public authorities law having jurisdiction over the public
work may require a contractor awarded a contract, subcontract, lease,
grant, bond, covenant or other agreement for a project to enter into a
project labor agreement during and for the work involved with such
project when such requirement is part of the agency, board, department,
commission or officer of the state of New York, political subdivision,
municipal corporation, public benefit corporation or local or state
authority having jurisdiction over the public work request for proposals
for the project and when the agency, board, department, commission or
officer of the state of New York, political subdivision, municipal
corporation, public benefit corporation or local or state authority
having jurisdiction over the public work determines that its interest in
obtaining the best work at the lowest possible price, preventing
favoritism, fraud and corruption, and other considerations such as the
impact of delay, the possibility of cost savings advantages, and any
local history of labor unrest, are best met by requiring a project labor
agreement.
(b) Any contract, subcontract, lease, grant, bond, covenant or other
agreement for projects undertaken pursuant to this section shall not be
subject to the requirements of separate specifications (referred to as
the Wicks Law) when the agency, board, department, commission or officer
of the state of New York, or political subdivision thereof, municipal
corporation, public benefit corporation or local or state authority
having jurisdiction over the public work has chosen to require a project
labor agreement, pursuant to paragraph (a) of this subdivision.
(c) Whenever the agency, board, department, commission or officer of
the state of New York, or political subdivision thereof, municipal
corporation, public benefit corporation or local or state authority
having jurisdiction over the public work enters into a contract,
subcontract, lease, grant, bond, covenant or other agreement for the
construction, reconstruction, demolition, excavation, rehabilitation,
repair, renovation, alteration, or improvement for a project undertaken
pursuant to this section, it shall be deemed to be a public works
project for the purposes of this article, and all the provisions of this
article shall be applicable to all the work involved with such project
including, but not limited to, the enforcement of prevailing wage
requirements by the fiscal officer as defined in paragraph (e) of
subdivision five of section two hundred twenty of this article.
(d) Every contract entered into by any agency, board, department,
commission or officer of the state of New York, or any political
subdivision thereof, municipal corporation, public benefit corporation
or local or state authority having jurisdiction over the public work for
a project shall contain a provision that the design of such project
shall be subject to the review and approval of the entity and that the
design and construction standards of such project shall be subject to
the review and approval of such state entity, if applicable. In
addition, every such contract shall contain a provision that the
contractor shall furnish a labor and material bond guaranteeing prompt
payment of moneys that are due to all persons furnishing labor and
materials pursuant to the requirements of any contracts for a project
undertaken pursuant to this section and a performance bond for the
faithful performance of the project, which shall conform to the
provisions of state or local law, and that a copy of such performance
and payment bonds shall be kept by such entity and shall be open to
public inspection.
(e) Any contract, subcontract, lease, grant, bond, covenant, or other
agreement for construction, reconstruction, demolition, excavation,
rehabilitation, repair, renovation, alteration, or improvement with
respect to each project undertaken pursuant to this section, the entity
shall consider the financial and organizational capacity of contractors
and subcontractors in relation to the magnitude of work they may
perform, the record of performance of contractors and subcontractors on
previous work, the record of contractors and subcontractors in complying
with existing labor standards and maintaining harmonious labor
relations, and the commitment of contractors to work with minority and
women-owned business enterprises pursuant to article fifteen-A of the
executive law through joint ventures of subcontractor relationships.
With respect to any contract for construction, reconstruction,
demolition, excavation, rehabilitation, repair, renovation, alteration,
or improvement in excess of three million dollars in the counties of the
Bronx, Kings, New York, Queens, and Richmond; one million five hundred
thousand dollars in the counties of Nassau, Suffolk and Westchester; and
five hundred thousand dollars in all other counties within the state;
the entity shall further require that each contractor and subcontractor
shall participate in apprentice training programs in the trades of work
it employs that have been approved by the department for not less than
three years and shall have graduated at least one apprentice in the last
three years and shall have at least one apprentice currently enrolled in
such apprenticeship training program. In addition, it must be
demonstrated that the program has made significant efforts to attract
and retain minority apprentices, as determined by affirmative action
goals established for such program by the department.
Prevention of dust hazard in public works. In the
construction of public works by the state or a public benefit
corporation or a municipal corporation or a commission appointed
pursuant to law wherein a harmful dust hazard is created for which
appliances or methods for the elimination of harmful dust have been
approved by the board of standards and appeals, a provision shall be
inserted in each contract for the construction of such work requiring
the installation, maintenance and effective operation of such appliances
and methods, and a further provision shall be inserted in such contract
that if this section is not complied with, the contract shall be void.
In the construction of public works performed directly by the state or a
public benefit corporation or a municipal corporation or a commission
appointed pursuant to law wherein a harmful dust hazard is created for
which appliances or methods for the elimination of silica dust or other
harmful dust have been approved by the board of standards and appeals,
the department, board or officer in the state, public benefit
corporation, or municipal corporation or commission or board appointed
pursuant to law, having jurisdiction over the construction of such work
shall provide for the effective use of such approved appliances or
methods in connection therewith. A violation of this section shall
constitute a misdemeanor and shall be punishable by a fine of not more
than five hundred dollars, or by imprisonment for not more than one
year, or by both fine and imprisonment.
Enforcement of article. If the fiscal officer as defined herein
finds that any person contracting with the state, a municipal
corporation, or any commission appointed pursuant to law, for the
performance of any public work fails to comply with or evades the
provisions of this article, he shall present evidence of such
non-compliance or evasion to the officer, department, board or
commission having charge of such work for enforcement. Wherein such
evidence indicates a non-compliance or evasion on the part of a
sub-contractor, the contractor shall be responsible for such
non-compliance or evasion. It shall be the duty of any officer,
department, board or commission in charge of the construction of such
public work contracts to enforce the provisions of this article.
Contracting for public work; enforcement. 1. The commissioner
shall have the power to enforce any provision of law requiring the
preparation of separate specifications for public work contracts.
Whenever the commissioner determines that an agency, board, department,
commission or officer of the state of New York, or of any political
subdivision thereof as defined in section one hundred of the general
municipal law, municipal corporation as defined in section sixty-six of
the general construction law, public benefit corporation, or local or
state authority as defined in section two of the public authorities law
having jurisdiction over a public work contract for which the
preparation of separate specifications is required has failed to prepare
such separate specifications, the commissioner may issue a stop-bid
order, which shall take effect as to such public work bid or contract
when served upon such agency, board, department, commission or officer
of the state of New York, political subdivision, municipal corporation,
public benefit corporation or local or state authority. Such stop-bid
order shall be served by regular mail, and a second copy may be served
by telefacsimile or by electronic mail, with service effective upon
receipt of any of such notices. The order shall remain in effect until
the commissioner directs that the stop-bid order be removed, upon a
determination that the agency, board, department, commission or officer
of the state of New York, political subdivision, municipal corporation,
public benefit corporation or local or state authority has complied with
the separate specifications requirement. The agency, board, department,
commission or officer of the state of New York, political subdivision,
municipal corporation, public benefit corporation or local or state
authority may within thirty days after notice of the stop-bid order make
an application in affidavit form for a redetermination review of such
order. The commissioner shall make a decision in writing on the issues
raised in such application within thirty days of receipt of such
application.
2. The commissioner may file a complaint in the supreme court of any
county where venue is proper to enjoin any agency, board, department,
commission or officer of the state of New York, political subdivision,
municipal corporation, public benefit corporation or local or state
authority from violating a stop-bid order. In any action brought by the
commissioner pursuant to this section in which it prevails, the court
may award costs, including the reasonable costs of investigation and
reasonable attorneys' fees.
3. In any court proceedings under this section, the commissioner shall
be represented by the attorney general.
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.
Stop-work orders. Where a complaint is received pursuant to
this article, or where the fiscal officer upon his or her own
investigation, finds cause to believe that any person, in connection
with the performance of any contract for public work pursuant to section
two hundred twenty of this article or any covered project pursuant to
section two hundred twenty-four-a of this article, has substantially and
materially failed to comply with or intentionally evaded the provisions
of this article, the fiscal officer may notify such person in writing of
his or her intention to issue a stop-work order. Such notice shall (i)
be served in a manner consistent with section three hundred eight of the
civil practice law and rules; (ii) notify such person of his or her
right to a hearing; and (iii) state the factual basis upon which the
fiscal officer has based his or her decision to issue a stop-work order.
Any documents, reports, or information that form a basis for such
decision shall be provided to such person within a reasonable time
before the hearing. Such hearing shall be expeditiously conducted.
Following the hearing, if the fiscal officer issues a stop-work order,
it shall be served by regular mail, and a second copy may be served by
telefacsimile or by electronic mail, with service effective upon receipt
of any such order. Such stop-work order shall also be served with regard
to a worksite by posting a copy of such order in a conspicuous location
at the worksite. The order shall remain in effect until the fiscal
officer directs that the stop-work order be removed, upon a final
determination on the complaint or where such failure to comply or evade
has been deemed corrected. If the person against whom such order is
issued shall within thirty days after issuance of the stop-work order
makes an application in affidavit form for a redetermination review of
such order the fiscal officer shall make a decision in writing on the
issues raised in such application. The fiscal officer may direct a
conditional release from a stop-work order upon a finding that such
person has taken meaningful and good faith steps to comply with the
provisions of this article.
Public subsidy board. 1. A board on public subsidies,
hereinafter "the board", is hereby created, to consist of thirteen
members. The thirteen members shall be appointed by the governor as
follows: one member upon the recommendation of the temporary president
of the senate, one member upon the recommendation of the speaker of the
assembly, the commissioner, the president of the empire state
development corporation, the director of the division of the budget, two
members representing employees in the construction industry, of whom one
shall be a representative of the largest statewide trade labor
association representing building and construction workers, and one
shall be a representative of the largest trade labor association
representing building and construction workers with membership in New
York City, and two members representing employers in the construction
industry, of whom one shall be a representative of the largest statewide
organization representing building owners and developers, either
for-profit or not-for-profit, and one shall be a representative of a
statewide organization representing building owners and developers,
either for-profit or not-for-profit, representing a region different
than the region primarily represented by the initial employer
representative. The commissioner shall act as the chair. The members
shall serve at the pleasure of the authority recommending, designating,
or otherwise appointing such member and shall serve without salary or
compensation but shall be reimbursed for necessary expenses incurred in
the performance of their duties.
2. The board shall meet on an as needed basis and shall have the power
to conduct public hearings. The board may also consult with employers
and employees, and their respective representatives, in the construction
industry and with such other persons, including the commissioner, as it
shall determine. No public officer or employee appointed to the board
shall forfeit any position or office by virtue of appointment to such
board. Any proceedings of the board which relate to a particular
individual or project shall be confidential.
3. The board may examine and make recommendations regarding the
following:
(a) the minimum threshold percentage of public funds set forth in
subdivision one of section two hundred twenty-four-a of this article,
but no lower than that which is set forth in such subdivision;
(b) the minimum dollar threshold of projects set forth in subdivision
one of section two hundred twenty-four-a of this article, but no lower
than that which is set forth in such subdivision;
(c) construction work excluded as a covered project, as set forth in
subparagraphs (i), (ii) and (iii) of paragraph c of subdivision four of
section two hundred twenty-four-a of this article;
(d) the definition of construction for purposes of section two hundred
twenty-four-a of this article; or
(e) particular instances of benefits, monies or credits as to whether
or not they should constitute public funds.
4. Prior to making any recommendation intended to apply to all
projects, the board shall hold a public hearing. The board shall
announce each public hearing at least fifteen days in advance. The
announcement shall contain an agenda of the topics the board will
discuss. At each hearing, the board may hear testimony and/or review
written documents from any interested stakeholders related to the
planned agenda of the meeting. The board shall make any such
recommendations in writing. In making its recommendations, the board
shall examine the impact of such thresholds and circumstances on private
development in light of available public subsidies, existing labor
market conditions, prevailing wage and supplement practices, and shall
consider the extent to which adjustments to such thresholds and
circumstances could ameliorate adverse impacts, if any, or expand
opportunities for prevailing wage and supplement standards on publicly
subsidized private construction projects in any region or regions of the
state.
5. The board shall be empowered to issue binding determinations to any
public entity, or any private or not-for-profit owner or developer as to
any particular matter related to an existing or potential covered
project. In such instances the board shall make a determination based
upon documents, or testimony, or both in its sole discretion. Any such
proceedings shall be confidential, except that publication of such
decisions shall be made available on the department's website, subject
to redaction or confidentiality as the board shall deem warranted in
accordance with any applicable federal or state statutory or regulatory
requirement governing confidentiality and personal privacy.
6. Any recommendation rendered by the board pursuant to this section
shall be subject to the provisions of article seventy-eight of the civil
practice law and rules.
7. In the event that the board finds that there is or likely would be
a significant negative economic impact of implementing the prevailing
wage requirements provided for in section two hundred twenty-four-a of
this article, the board may temporarily delay the implementation of such
requirements beyond January first, two thousand twenty-two. Such a delay
may be effective statewide or effective only in a region of the state as
defined by the regional economic development councils. In making such a
determination to delay, the board shall consult the department, the
department's division of research and statistics, the United States
department of labor, the federal reserve bank of New York and other
economic experts. The board will reference well-established economic
indexes and accepted economic factors tied to the construction industry,
including but not limited to construction industry employment, wages,
and overall construction activity.
Wage requirements for certain renewable energy systems. 1.
For purposes of this section, a "covered renewable energy system" means
(a) a renewable energy system, as such term is defined in section
sixty-six-p of the public service law, with a capacity of one or more
megawatts alternating current and which involves the procurement of
renewable energy credits by a public entity, or a company or corporation
provided in subdivisions twenty-three and twenty-four of section two of
the public service law, or a third party acting on behalf and for the
benefit of a public entity; (b) any "thermal energy network" as defined
by subdivision twenty-nine of section two of the public service law; (c)
any offshore wind supply chain project, including but not limited to
port infrastructure, primary component manufacturing, finished component
manufacturing, subassembly manufacturing, subcomponent manufacturing, or
raw material producers, or a combination thereof receiving direct
funding from the New York state energy research and development
authority pursuant to an award under a New York state energy research
and development authority solicitation; or (d) a "major utility
transmission facility" as such term is defined by section one hundred
twenty of the public service law.
2. Notwithstanding the provisions of section two hundred twenty-four-a
of this article, a covered renewable energy system shall be subject to
prevailing wage requirements in accordance with sections two hundred
twenty and two hundred twenty-b of this article. Provided that a
renewable energy system defined in section sixty-six-p of the public
service law which is not considered to be covered by this section, may
still otherwise be considered a "covered project" pursuant to section
two hundred twenty-four-a of this article if it meets such definition.
3. For purposes of this section, a covered renewable energy system
shall exclude 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, and/or its affiliates, 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 provided, however, this subdivision shall not apply to
any covered renewable energy systems defined in paragraph (d) of
subdivision one of this section.
4. For purposes of this section, the "fiscal officer" shall be deemed
to be the commissioner. The enforcement of any covered renewable energy
system pursuant to this section shall be subject to the requirements of
sections two hundred twenty, two hundred twenty-a, two hundred twenty-b,
two hundred twenty-three, two hundred twenty-four-b, and two hundred
twenty-seven of this chapter and within the jurisdiction of the fiscal
officer; provided, however, nothing contained in this section shall be
deemed to construe any covered renewable energy system as otherwise
being considered public work pursuant to this article.
5. 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.
6. Each owner and developer subject to the requirements of this
section shall comply with the objectives and goals of certified minority
and women-owned business enterprises pursuant to article fifteen-A of
the executive law and certified service-disabled veteran-owned
businesses pursuant to article three of the veterans' services law. The
department in consultation with the commissioner of the division of
minority and women's business development and the director 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 renewable energy systems to 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.
7. 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
renewable energy systems subject to the provisions of this section 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 renewable
energy system. 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.
8. A covered renewable energy system shall require all contractors and
subcontractors performing construction work to have apprenticeship
agreements, as defined by article twenty-three of this chapter, and any
thermal energy network covered by this section shall additionally
require such contractors and subcontractors to have agreements with
pre-apprenticeship direct entry providers registered with the
department.
Wage requirements for certain broadband projects. 1. For
purposes of this section, a "covered broadband project" means a
broadband project funded by programs established pursuant to
subdivisions seven and eight of section sixteen-gg of the New York state
urban development corporation act.
2. Notwithstanding the provisions of section two hundred twenty-four-a
of this article, a covered broadband project shall be subject to
prevailing wage requirements in accordance with sections two hundred
twenty and two hundred twenty-b of this article, provided that a covered
broadband project may still otherwise be considered a covered project
pursuant to section two hundred twenty-four-a of this article if it
meets the definition therein.
3. For purposes of this section, the "fiscal officer" shall be deemed
to be the commissioner. The enforcement of any covered broadband project
under this section shall be subject to the requirements of sections two
hundred twenty, two hundred twenty-a, two hundred twenty-b, two hundred
twenty-three, two hundred twenty-four-b of this article, and section two
hundred twenty-seven of this chapter and within the jurisdiction of the
fiscal officer; provided, however, nothing contained in this section
shall be deemed to construe any covered broadband project as otherwise
being considered public work pursuant to this article.
4. 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.
5. Each owner and developer subject to the requirements of this
section shall comply with the objectives and goals of certified minority
and women-owned business enterprises pursuant to article fifteen-A of
the executive law and certified 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
undertaking covered broadband projects to 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.
6. (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-three and annually thereafter, on the participation
of minority and women-owned business enterprises undertaking covered
broadband projects subject to the provisions of this section as well as
the diversity practices of contractors and subcontractors employing
workers 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 broadband
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.
* § 224-f. Wage requirements for certain climate risk-related and
energy transition projects. 1. For purposes of this section, a "covered
climate risk-related and energy transition project" means a construction
project that receives at least one hundred thousand dollars of funds
from the New York climate action fund climate investment account
established pursuant to section ninety-nine-qq of the state finance law
or the climate change adaptation fund established pursuant to section
ninety-seven-m of the state finance law.
2. A covered climate risk-related and energy transition project shall
be subject to prevailing wage requirements in accordance with sections
two hundred twenty, two hundred twenty-a, two hundred twenty-b, two
hundred twenty-i, two hundred twenty-three, and two hundred
twenty-four-b of this article, provided that a covered climate
risk-related and energy transition project may still otherwise be
considered a covered project pursuant to section two hundred twenty or
two hundred twenty-four-a of this article if it meets the definition
therein.
3. For purposes of this section, a covered climate risk-related and
energy transition project shall exclude:
a. Privately owned construction work performed under a pre-hire
collective bargaining agreement between an owner or developer and a bona
fide building and construction trades labor organization which has
established itself, and/or its affiliates, 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
b. 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; or
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:
(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.
4. As a condition of receiving funds from the New York climate action
fund climate investment account established pursuant to section
ninety-nine-qq of the state finance law or from the climate change
adaptation fund established pursuant to section ninety-seven-m of the
state finance law for a covered climate risk-related and energy
transition project, the owner or developer of such covered climate
risk-related and energy transition project, or a third party acting on
such owner's or developer's behalf, shall agree to enter into a labor
peace agreement with at least one bona fide labor organization either:
a. where such bona fide labor organization is actively representing
non-construction employees who will be working within the covered
climate risk-related and energy transition project once built; or
b. upon notice by a bona fide labor organization that is attempting to
represent such non-construction employees.
5. For purposes of this section "labor peace agreement" means an
agreement between an owner and/or developer and labor organization that,
at a minimum, protects the state's proprietary interests by prohibiting
labor organizations and members from engaging in picketing, work
stoppages, boycotts, and any other economic interference.
6. The owner or developer using funds from the New York climate action
fund climate investment account established pursuant to section
ninety-nine-qq of the state finance law or from the climate change
adaptation fund established pursuant to section ninety-seven-m of the
state finance law for a covered climate risk-related and energy
transition project pursuant to this section shall:
a. require the use of apprenticeship agreements as defined by article
twenty-three of this chapter; or for industries without apprenticeship
programs, require the use of workforce training, preferably in
conjunction with a bona fide labor organization; and
b. consider use of registered pre-apprenticeship direct entry programs
for the recruitment of local and/or disadvantaged workers.
7. For purposes of this section, the "fiscal officer" shall be deemed
to be the commissioner. The enforcement of any covered climate
risk-related and energy transition project under this section shall be
subject to the requirements of sections two hundred twenty, two hundred
twenty-a, two hundred twenty-b, two hundred twenty-i, two hundred
twenty-three, two hundred twenty-four-b of this article, and section two
hundred twenty-seven of this chapter and within the jurisdiction of the
fiscal officer; provided, however, nothing contained in this section
shall be deemed to construe any covered climate risk-related and energy
transition project as otherwise being considered public work pursuant to
this article.
8. 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. For any building service work on a covered climate risk-related and
energy transition project, prevailing wage shall be paid consistent with
article nine of this chapter.
10. Any public entity receiving at least five million dollars in funds
from the New York climate action fund climate investment account
established pursuant to section ninety-nine-qq of the state finance law
or from the climate change adaptation fund established pursuant to
section ninety-seven-m of the state finance law for a project which
involves the construction, reconstruction, alteration, maintenance,
moving, demolition, excavation, development or other improvement of any
building, structure or land, shall be subject to section two hundred
twenty-two of this article.
* NB There are 2 § 224-f's
* § 224-g. Wage requirements for reporting and scheduling pay. 1.
Notwithstanding any law, rule or regulation to the contrary, for any
construction projects covered by sections two hundred twenty, two
hundred twenty-b, two hundred twenty four-a, two hundred twenty four-d,
two hundred twenty four-e, two hundred twenty four-f as added by section
three of part TT of chapter fifty-six of the laws of two thousand
twenty-three, or two hundred twenty four-f as added by chapter two
hundred seventy-eight of the laws of two thousand twenty-three, each
laborer, worker or mechanic in the employ of a contractor who by request
or permission of an employer reports for work on any day shall be paid
no less than four hours at the prevailing rate of wages, including
supplements, as defined in this article for the employee's regularly
scheduled classification of work, however, this section shall not be
applicable if the posted prevailing rate of wages provides for reporting
pay wages or benefits greater than set forth in this section. Payments
owed to an employee pursuant to this section shall be deemed prevailing
rate of wages or supplements as defined in this article.
2. Notwithstanding any law, rule or regulation to the contrary, each
laborer, worker or mechanic in the employ of a contractor who by request
or permission of an employer is scheduled to report for work on any day
shall be paid for two hours at the prevailing rate of wages, including
supplements, as defined in this article for the regularly scheduled
classification of work when such scheduled shift is cancelled on less
than twelve hours' notice to the employee.
* NB Effective December 8, 2026
ARTICLE 8-A Grade Crossing Elimination Work; Hours, Wages, Employment and General Requirements
Hours of labor and wages on work of elimination of grade
crossings. All work of every kind upon the elimination of railroad
grade crossings under article seven, section fourteen of the
constitution, under chapters six hundred and seventy-seven, six hundred
and seventy-eight, eight hundred and six, eight hundred and twenty-five
of the laws of nineteen hundred twenty-eight and chapter six hundred and
eighty-one of the laws of nineteen hundred twenty-nine, or acts
amendatory of or supplemental thereto, or under acts which such statutes
amended or supplemented, or under the railroad law, the highway law, or
any other general or special law, for the cost of which work the state
and/or its civil divisions is liable in any proportion is hereby
declared to be public work for the state and/or for its civil divisions,
and the wages, the hours of work and labor and days of employment of all
laborers, workmen or mechanics employed on such work whether by the
state or by a municipality or by a board or commission appointed
pursuant to law or by a railroad or other corporation intrusted with the
performance of such work or by any contractor or subcontractor on such
work shall hereafter be subject to and in accord with the provisions of
article eight of this chapter, and every contract for such elimination
work hereafter entered into 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 caused by fire,
flood or danger to life or property. No such person shall be employed
more than eight hours in any day or more than five days in any one week
except in such emergency.
General requirements making applicable certain provisions of
article eight and providing for enforcement thereof. All work of every
kind to which the preceding section is applicable shall hereafter be
subject to application of all the provisions of sections two hundred and
twenty, two hundred and twenty-one and two hundred and twenty-two of
article eight of this chapter. Every contract hereafter entered into for
such elimination work shall require compliance with the regulations of
such sections. If the fiscal officer as defined herein finds that in the
performance of any such elimination work that any person contracting
with the state, a municipal corporation, board, any commission appointed
pursuant to law, their agent or other person carrying on such work to
which state funds are applied for payment fails to comply with or evades
the provisions of this section, he shall present evidence of such
non-compliance or evasion to the officer, department, board or
commission having charge of such work for enforcement. Wherein such
evidence indicates a non-compliance or evasion on the part of a
sub-contractor, the contractor shall be responsible for such
non-compliance or evasion. It shall be the duty of any officer,
department, board or commission in charge of the construction of such
grade crossing elimination contracts to enforce the provisions of this
article.
Wages for such work; prevailing rate. The wages to be paid for
a day's work of eight hours as referred to hereinbefore, to laborers,
workmen or mechanics upon such public works 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 and shall be paid in cash. Every
contract for such elimination work, hereafter entered into, shall
contain a provision that each laborer, workman or mechanic, employed by
a contractor, subcontractor or other person about or upon such public
work, shall be paid the wages herein provided.
Enforcement of the provisions of this article. The procedure
for ascertaining and determining the hours of labor and the prevailing
rate of wage shall be as prescribed by section two hundred and twenty of
this chapter, except that the "fiscal officer," referred to therein
shall in every instance, for the purposes of this article be the state
industrial commissioner.
Upon the entry of any order of the industrial commissioner affecting
either such hours of labor or rate of wages, any party to the proceeding
aggrieved thereby may bring a proceeding for review pursuant to article
seventy-eight of the civil practice law and rules within thirty days
from the notice of the filing of such order in the office of the
industrial commissioner. If such order is not reviewed or is so reviewed
and confirmed and the determination is in favor of the complainant and
involves or relates to the rate of wages paid on such public work, the
complainant or any other person affected may within three months after
the service of notice of the filing of such order, or the judgment if
the order is reviewed, institute an action against the person or
corporation found violating this article for the recovery of the
difference between the sum actually paid and the amount which should
have been paid as determined by such order for the period following the
date of the filing with the industrial commissioner of the complaint or
of the report of investigation made by the industrial commissioner on
his own initiative.
When an order of the industrial commissioner has been made, any person
or corporation that wilfully refuses thereafter to pay the prevailing
rate of wages determined by said order or wilfully employs on such
public work, laborers, workmen or mechanics more than the hours per day
determined by such order until such order has been changed by the
industrial commissioner or by the court after adjudication upon the
merits, shall be guilty of a misdemeanor and upon conviction shall be
punished, for a first offense by a fine of five hundred dollars or by
imprisonment for not more than thirty days, or by both such fine and
imprisonment; for a second offense by a fine of one thousand dollars or
by imprisonment for not more than ninety days or by both such fine and
imprisonment, and after conviction of a second offense no such person or
corporation shall be entitled to receive any sum of money nor shall any
officer, agent or employee of the state or of a municipal corporation or
of a board or commission appointed pursuant to law pay the same or
authorize its payment from the funds under his charge or control to any
such person or corporation or to any other person or corporation for or
on account of work done upon any such contract.
ARTICLE 9 Prevailing Wage For Building Service Employees
Definitions. As used in this article:
1. "Building service employee" or "employee" means any person
performing work in connection with the care or maintenance of an
existing building, or in connection with the transportation of office
furniture or equipment to or from such building, or in connection with
the transportation and delivery of fossil fuel to such building, for a
contractor under a contract with a public agency which is in excess of
one thousand five hundred dollars and the principal purpose of which is
to furnish services through the use of building service employees.
"Building service employee" or "employee" includes, but is not
limited, to, watchman, guard, doorman, building cleaner, porter,
handyman, janitor, gardener, groundskeeper, stationary fireman, elevator
operator and starter, window cleaner, and occupations relating to the
collection of garbage or refuse, and to the transportation of office
furniture and equipment, and to the transportation and delivery of
fossil fuel but does not include clerical, sales, professional,
technician and related occupations.
"Building service employee" or "employee" also does not include any
employee to whom the provisions of articles eight and eight-a of this
chapter are applicable.
2. "Building service work" or "service work" means work performed by a
building service employee, but does not include work performed for a
contractor under a contract for the furnishing of services by radio,
telephone, telegraph or cable companies; and any contract for public
utility services, including electric light and power, water, steam and
gas.
3. "Public agency" means the state, any of its political subdivisions,
a public benefit corporation, a public authority or commission or
special purpose district board appointed pursuant to law, and a board of
education.
4. "Contractor" means any employer who employs employees to perform
building service work under a contract with a public agency and shall
include any of the contractor's subcontractors.
5. "Wage" includes: (a) basic hourly cash rate of pay; and (b)
supplements. The term "supplements" means fringe benefits including
medical or hospital care, pensions on retirement or death, compensation
for injuries or illness resulting from occupational activity, or
insurance to provide any of the foregoing, unemployment benefits, life
insurance, disability and sickness insurance, accident insurance,
vacation and holiday pay, costs of apprenticeship or other similar
programs and other bona fide fringe benefits not otherwise required by
federal, state or local law to be provided by the contractor or
subcontractor.
6. "Prevailing wage" means the wage determined by the fiscal officer
to be prevailing for the various classes of building service employees
in the locality. In no event shall the basic hourly cash rate of pay be
less than the statutory minimum wage established by article nineteen of
this chapter, or, in a city with a local law requiring a higher minimum
wage on city contract work, less than the minimum wage specified in such
local law.
7. "Locality" means the state, a town, city, village or other civil
division or area of the state as determined by the fiscal officer. The
fiscal officer may fix a different geographic area in determining the
locality for the prevailing basic hourly cash rate of pay and the
locality for prevailing supplements.
8. "Fiscal officer" means the industrial commissioner, except for
building service work performed by or on behalf of a city, in which case
"fiscal officer" means the comptroller or other analogous officer of
such city.
9. "Fossil fuel" shall mean coal, petroleum products and fuel gases.
"Coal" shall include bituminous coal, anthracite coal and lignite. "Fuel
gases" shall include but not be limited to methane, natural gas,
liquefied natural gas and manufactured fuel gases. "Petroleum products"
shall include all products refined or rerefined from synthetic or crude
oil or oil extracted from other sources, including natural gas liquids.
Provided that nothing in this subdivision shall affect the exclusion for
public utility services set forth in subdivision two of this section.
10. "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.
11. "Entity" shall mean a partnership, association, joint venture,
company, sole proprietorship, corporation or any other form of doing
business.
12. "Parent company" shall mean an entity that directly controls the
contractor or subcontractor.
13. "Subsidiary" shall mean an entity that is controlled directly, or
indirectly through one or more intermediaries, by a contractor or
subcontractor or the contractor's parent company.
14. "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.
Prevailing wage. 1. Every contractor shall pay a service
employee under a contract for building service work a wage of not less
than the prevailing wage in the locality for the craft, trade or
occupation of the service employee.
2. The obligation of a contractor to pay prevailing supplements may be
discharged by furnishing any equivalent combinations of fringe benefits
or by making equivalent or differential payments in cash under rules and
regulations established by the fiscal officer.
3. Each contract for building service work shall contain as part of
the specifications thereof a schedule of the wages required to be paid
to the various classes of service employees on such work, and each such
contract shall further contain a provision obligating the contractor to
pay each employee on such work not less than the wage specified for his
craft, trade or occupation in such schedule.
4. The public agency, or appropriate officer or agent thereof, whose
responsibility it is to prepare or direct the preparation of the plans
and specifications for a contract for building service work, shall
ascertain from such plans and specifications the classifications of
employees to be employed on such work and shall file a list of such
classifications with the fiscal officer, together with a statement of
the work to be performed. The fiscal officer shall determine the crafts,
trades and occupations required for such work and shall make a
determination of the wages required to be paid in the locality for each
such craft, trade or occupation. A schedule of such wages shall be
annexed to and form a part of the specifications for the contract prior
to the time of the advertisement for bids on such contract and shall
constitute the schedule of wages referred to in subdivision three of
this section.
5. Upon the award of a contract for building service work by a public
agency other than a city, the contracting public agency shall
immediately furnish to the commissioner: (a) the name and address of the
contractor to whom the contract was awarded; (b) the date when the
contract was awarded; and (c) the approximate consideration stipulated
for in the contract.
6. No later than the first day upon which work on said contract is
performed by any employee, the contractor shall post in a prominent and
accessible place on the site of the work a legible statement of the
wages to be paid to the workmen employed thereon.
7. (a) An apprentice in a craft or trade may be permitted to work at a
wage lower than that established for the journeymen in such craft or
trade only if all of the following conditions have been met:
(1) such apprentice has been 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;
(2) such apprentice's registration occurred prior to his employment as
an apprentice on such service work; and
(3) written proof of such individual registration is submitted to the
contracting public agency prior to such apprentice's employment as an
apprentice. The proof submitted shall include evidence of the
appropriate ratios and apprentice's wage rates.
(b) In no event shall the ratio of apprentices to journeymen employed
on such service work be greater than the lesser of the following ratios:
(1) the ratio permitted in the apprenticeship program approved by the
industrial commissioner; or
(2) the ratio prevailing in the locality where the service work will
be performed.
(c) The rate of wages established for apprentices shall be the
prevailing rate as determined in accordance with this article.
Overtime. An employee, employed by a contractor, who works more
than eight hours in any one day or more than forty hours in any workweek
shall be paid wages for such overtime at a rate not less than
one-and-one-half times his prevailing basic cash hourly rate.
Record keeping. 1. In all cases where service work is being
performed pursuant to a contract therefor the contractor shall keep
original payrolls or transcripts thereof, subscribed and confirmed by
him as true, under penalties of perjury, showing the hours and days
worked by each employee, the craft, trade or occupation at which he was
employed, and the wages paid.
2. Where the wages paid include sums which are not paid directly to
the workmen weekly and which are expended for supplements, the records
required to be maintained shall include a record of such hourly payment
on behalf of such employees, the supplement for which such payment has
been made, and the name and address of the person to whom such payment
has been made. In all such cases, the contractor shall keep a true and
inscribed copy of the agreement under which such payments are made, a
record of all net payments made thereunder, and a list of all persons
for whom such payments are made.
3. The records required to be maintained shall be kept on the site of
the work during all of the time that work under the contract is being
performed.
4. All records required to be maintained shall be preserved for a
period of three years after the completion of work.
Powers of the fiscal officer. 1. In addition to the powers
enumerated elsewhere in this article, the fiscal officer shall have the
power:
(a) to cause an investigation to be made to determine the wages
prevailing in any locality in all crafts, trades and occupations
involved in service work; in making such investigation, the fiscal
officer may utilize wage and fringe benefit data from various sources
including, but not limited to, data and determinations of federal, state
or other governmental agencies;
(b) to institute and conduct inspections at the site of the work or
elsewhere in aid of the effective administration and enforcement of the
provisions of this article;
(c) to examine the books, documents and records pertaining to the
wages paid to, and the hours of work performed by, service employees;
(d) to hold the hearings provided for in this article, and in
connection therewith 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;
(e) to make a classification by craft, trade or other generally
recognized occupational category of the service employees involved and
to determine whether such work has been performed by the employees in
such classification;
(f) to require a contractor to file with the fiscal officer a record
of the wages actually paid by such contractor to the employees and of
their hours of work;
(g) to delegate any of the foregoing powers to his deputy or other
authorized representative;
(h) to provide such reasonable limitations from any or all provisions
of this article as he may find necessary and proper in the public
interest or to avoid serious impairment of the conduct of government
business;
(i) to propose, and after public hearing held before him or his
designee, to promulgate such rules as he shall consider necessary for
the proper execution of the duties, responsibilities and powers
conferred upon him by the provisions of this article. Such rules may
allow such reasonable variations, tolerances and exemptions to and from
any or all provisions of this article as the fiscal officer may find
necessary and proper in the public interest, or to avoid serious
impairment of the conduct of government business.
2. For all work for which the industrial commissioner is the fiscal
officer, the industrial commissioner shall additionally have all the
powers granted him elsewhere in this chapter.
Investigation and hearing. 1. Whenever the fiscal officer has
reason to believe that a service employee has been paid less than the
wages stipulated in the contract, or if such contract has no wage
schedule attached thereto and the fiscal officer has reason to believe
that a service employee has been paid less than the wages prevailing for
his craft, trade or occupation, the fiscal officer may, and upon receipt
of a written complaint from an employee employed thereon, shall conduct
a special investigation to determine the facts relating thereto.
2. a. At the start of such investigation the fiscal officer may notify
the financial officer of the public agency interested who shall, at the
direction of the fiscal officer, forthwith withhold from any payment due
to the contractor executing the contract sufficient money to safeguard
the rights of the service employees and to cover the civil penalty that
may be assessed as provided herein, or, if there are insufficient moneys
still due or earned to the contractor or subcontractor to safeguard the
rights of the service employees and to cover the civil penalty that may
be assessed as provided herein, the financial officer of another civil
division which has entered or subsequently enters into a building
service work contract with the contractor or subcontractor, who shall
withhold from any payment due the contractor or subcontractor executing
any building service work, sufficient moneys to safeguard the rights of
the service employees and to cover the civil penalty that may be
assessed as provided herein.
b. If there are still insufficient moneys still due or earned to the
contractor or subcontractor to safeguard the rights of the service
employees and to cover the civil penalty that may be assessed as
provided herein, the financial officer shall immediately so notify the
fiscal officer, who may issue a notice of withholding to any of the
following: any substantially-owned affiliated entity or successor or
subsidiary of the contractor or subcontractor; an officer of the
contractor or subcontractor who knowingly participated in the violation
of this article, any of the partners, if the contractor or subcontractor
is a partnership, or any of the five largest shareholders of the
contractor or subcontractor, as determined by the fiscal officer.
c. The notice of withholding shall provide that the fiscal officer
intends to instruct the financial officer, not less than ten days
following service of the notice by mail, to withhold sufficient moneys
to safeguard the rights of the service employees and to cover the civil
penalty that may be assessed as provided herein, from any payment due
the notified party under any building service work contract pending
final determination. The notice of withholding shall provide that within
thirty days following the date of the notice of withholding the notified
party may, contest the withholding on the basis that the notified party
is not a partner or one of the five largest shareholders of the
subcontractor or contractor, an officer of the contractor or
subcontractor who knowingly participated in the violation of this
article, a substantially-owned affiliated entity or successor. If the
notified party fails to contest the notice of withholding, or if the
fiscal officer, after reviewing the information provided by the notified
party in such contest, determines that the notified party is a partner
or one of the five largest shareholders, a substantially-owned
affiliated entity, an officer of the contractor or subcontractor who
knowingly participated in the violation of this article, or a successor,
the fiscal officer may instruct the financial officer to immediately
withhold sufficient moneys to safeguard the rights of the service
employees and to cover the civil penalty that may be assessed as
provided herein from any payment due the notified party under any
building service work contract pending the final determination.
d. The financial officer shall immediately implement the notice of
withholding and confirm in writing to the fiscal officer the amount of
money withheld.
e. If the notified party contests the withholding after a withholding
has been effected, and if the fiscal officer determines that the
notified party is not a partner or one of the five largest shareholders,
a substantially-owned affiliated entity or successor, an officer of the
contractor or subcontractor who knowingly participated in the violation
of this article the fiscal officer shall immediately notify the
financial officer to release all payments being withheld from the
notified party.
f. The money shall be held in trust pending completion of the
investigation.
3. If, despite the requirements of law, the contract for the service
work has been awarded without the annexation thereto of the schedule of
wages provided for in this article, the fiscal officer shall determine
in the proceeding before him the wages prevailing at the time the work
was performed for the crafts, trades or occupations of the employees
involved.
4. In an investigation conducted under the provisions of this section,
the inquiry of the fiscal officer shall not extend to work performed
more than two years prior to: (a) the filing of the complaint, or (b)
the commencement of the investigation upon the fiscal officer's own
volition, whichever is earlier in point of time.
5. a. The investigation and hearing shall be expeditiously conducted
and upon the completion thereof the fiscal officer shall determine the
issues raised and shall make and file an order in his office stating
such determination and forthwith serve personally or by mail a copy of
such order and determination together with a notice of filing upon all
parties to the proceeding and upon the financial officer of the public
agency involved.
b. In addition to directing payment of wages found to be due, such
order of the fiscal officer 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 of the employer, successor or
substantially-owned affiliated entity or any successor of the contractor
or subcontractor, any officer of the contractor or subcontractor who
knowingly participated in the violation of this article, and any of the
partners if the contractor or subcontractor is a partnership or any of
the five largest shareholders of the contractor or subcontractor, as
determined by the fiscal officer, of such underpayment of wages or
supplements, and any officer of the contractor or subcontractor who
knowingly participated in the violation of this article, 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.
c. If the order directs the payment to specified employees of wages
found to be due and unpaid, including interest at a rate not less than
six per centum per year and not more than 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
time such wages should have been paid, the financial officer of such
public agency shall, upon the service to him of such order, pay to such
employees from the trust money withheld the amounts specified in such
order and shall pay the civil penalty as provided herein, provided no
review proceeding pursuant to the provisions of article seventy-eight of
the civil practice law and rules is commenced within thirty days of the
date said order was filed in the office of the fiscal officer. If such
review is timely commenced, the money withheld shall remain in trust
pending final disposition of the review proceeding. In determining the
rate of interest to be imposed the fiscal officer shall consider the
size of the employer's business, the good faith of the employer, the
gravity of the violation, the history of previous violations of the
employer, successor or substantially-owned affiliated entity or any
successor of the contractor or subcontractor, any officer of the
contractor or subcontractor who knowingly participated in the violation
of this article, and any of the partners if the contractor or
subcontractor is a partnership or any of the five largest shareholders
of the contractor or subcontractor, as determined by the fiscal officer,
and the failure to comply with recordkeeping or other non-wage
requirements.
6. When a final determination has been made and such determination is
in favor of an employee, such employee may, in addition to any other
remedy provided by this article, institute an action in any court of
appropriate jurisdiction against the person or corporation found to have
violated this article, any substantially-owned affiliated entity or any
successor of the contractor or subcontractor, any officer of the
contractor or subcontractor who knowingly participated in the violation
of this article, and any of the partners if the contractor or
subcontractor is a partnership or any of the five largest shareholders
of the contractor or subcontractor, as determined by the fiscal officer,
for the recovery of the difference between the sum, if any, actually
paid to him by the aforesaid financial officer pursuant to said order
and the amount found to be due him as determined by said order. Such
action must be commenced within three years from the date of the filing
of said order, or if the said order is reviewed in a proceeding pursuant
to article seventy-eight of the civil practice law and rules, within
three years after the termination of such review proceeding.
Provided that no proceeding for judicial review as provided in this
section 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.
7. When, pursuant to the provisions of this section, two final orders
have been entered against a contractor, subcontractor, successor, or any
substantially-owned affiliated entity of the contractor or
subcontractor, any of the partners if the contractor or subcontractor is
a partnership, any of the five largest shareholders of the contractor or
subcontractor, any officer of the contractor or subcontractor who
knowingly participated in the violation of this article within any
consecutive six-year period determining that such contractor or
subcontractor and/or its successor, substantially-owned affiliated
entity of the contractor or subcontractor, any of the partners or any of
the five largest shareholders of the contractor or subcontractor, any
officer of the contractor or subcontractor who knowingly participated in
the violation of this article has willfully failed to pay the prevailing
wages in accordance with the provisions of this article, whether such
failures were concurrent or consecutive and whether or not such final
determinations concerning separate public building service contracts are
rendered simultaneously, such contractor, subcontractor, successor, and
if the contractor, subcontractor, successor, or any substantially-owned
affiliated entity of the contractor or subcontractor, any of the
partners if the contractor or subcontractor is a partnership, or any of
the five largest shareholders of the contractor or subcontractor, any
officer of the contractor or subcontractor who knowingly participated in
the violation of this article, or any successor is a corporation, any
officer of such corporation who knowingly participated in such failure,
shall be ineligible to submit a bid on or be awarded any public building
service work for a period of five years from the date of the second
order, provided, however, that where any such final order involves the
falsification of payroll records or the kickback of wages, the
contractor, subcontractor, successor, substantially-owned affiliated
entity of the contractor or subcontractor, any partner if the contractor
or subcontractor is a partnership or any of the five largest
shareholders of the contractor or subcontractor, any officer of the
contractor or subcontractor who knowingly participated in the violation
of this article shall be ineligible to submit a bid on or be awarded any
public building service contract or subcontract with the state, any
municipal corporation or public body for a period of five years from the
date of the first final order. Nothing in this subdivision shall be
construed as affecting any provision of any other law or regulation
relating to the awarding of public contracts.
8. a. When a final determination has been made in favor of a
complainant and the contractor or subcontractor found violating this
article has failed to make payment as required by the order of the
fiscal officer, and provided that no relevant proceeding for judicial
review shall then be pending and the time for initiation of such
proceeding shall have expired, the fiscal officer may file a copy of the
order of the fiscal officer containing the amount found to be due with
the county clerk of the county of residence or place of business of any
of the following:
(i) any substantially-owned affiliated entity or any successor of the
contractor or subcontractor;
(ii) any of the partners if the contractor or subcontractor is a
partnership or any of the five largest shareholders of the contractor or
subcontractor, as determined by the fiscal officer; or
(iii) any officer of the contractor or subcontractor who knowingly
participated in the violation of this article; provided, however, that
the fiscal officer shall within five days of the filing of the order
provide notice thereof to the partner or top five shareholder or
successor or substantially-owned affiliated entity. The notified party
may contest the filing on the basis that it is not a partner or five
largest shareholders, an officer of the contractor or subcontractor who
knowingly participated in the violation of this article, successor or
substantially-owned affiliated entity. If, after reviewing the
information provided by the notified party in support of such contest,
the fiscal officer determines that the notified party is not within the
definitions described herein, the fiscal officer shall immediately
withdraw his filing of the order.
b. 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.
9. When a final determination has been made against a subcontractor in
favor of a complainant and the contractor has made payment to the
complainant of any wages and interest due the complainant and any civil
penalty, and providing that no relevant proceeding for judicial review
shall then be pending and the time for initiation of such proceeding
shall have expired, the contractor may file a copy of the order of the
fiscal officer containing the amount found to be due with the county
clerk of the county of residence or place of business of the
subcontractor. The filing of such order shall have the full force and
effect of a judgment duly docketed in the office of such clerk. The
judgment may be docketed in favor of the contractor who may proceed as a
judgment creditor against the subcontractor for the recovery of all
monies paid by the contractor under such order.
Failure to protest underpayments. Notwithstanding any
inconsistent provision of this chapter or of any other general, special
or local law, ordinance, charter or administrative code, a service
employee shall not be barred from his right to recover the difference
between the amount actually paid to him and the amount which should have
been paid to him pursuant to an order entered under the provisions of
this article because of the prior receipt by him without protest of
wages paid 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 wages
received by him are received under protest, or on account of his failure
to indicate his protest against the amount, or that the amount so paid
does not constitute payment in full of wages due him for the period
covered by such payment.
Statements showing amounts due for wages. 1. Subcontractors
engaged for service work by a contractor or its subcontractor shall,
upon receipt from the contractor or its subcontractor of the schedule of
wages and supplements specified in the contract, provide to the
contractor or its subcontractor a verified statement attesting that the
subcontractor has received and reviewed such schedule of wages and
supplements, and agrees that it will pay the applicable prevailing wages
and will pay or provide the supplements specified therein. Such verified
statement shall be filed in the manner described in subdivision three of
this section. It shall be a violation of this article for any contractor
or its subcontractor to fail to provide for its subcontractor a copy of
the schedule of wages and supplements specified in the contract.
2. Before payment is made by or on behalf of a public agency of any
sums due on account of a contract for service work, it shall be the duty
of the comptroller of the state or the financial officer of such public
agency or other officer or person charged with the custody and
disbursement of the state or corporate funds applicable to the contract
under and pursuant to which payment is made, to require the contractor
to file a statement in writing in form satisfactory to such officer
certifying to the amounts then due and owing from such contractor filing
such statement to or on behalf of any and all service employees for
daily or weekly wages on account of labor performed upon the work under
the contract, setting forth therein the names of the persons whose wages
are unpaid and the amount due to or on behalf of each respectively,
which statement so to be filed shall be verified by the oath of the
contractor that he or she has read such statement subscribed by him or
her and knows the contents thereof, and that the same is true of his or
her own knowledge.
3. Before payment is made by or on behalf of a public agency of any
sums due on account of a contract for service work and representing the
final portion of twenty percent of the total consideration payable under
the contract, it shall be the duty of the comptroller of the state or
the financial officer of such public agency or other officer or person
charged with the custody and disbursement of the state or corporate
funds applicable to the contract under and pursuant to which payment is
made to require the contractor to file every verified statement required
to be obtained by the contractor from its subcontractors pursuant to
subdivision one of this section and to file a statement in writing in
form satisfactory to such officer setting forth the amounts known by the
contractor to be then due and owing from a subcontractor, or from a
subcontractor of such subcontractor, for such wages and supplements, or
certifying that the contractor has no knowledge of such amounts owing to
or on behalf of any service employees of its subcontractors, and that in
the event it is determined by the commissioner that the wages or
supplements or both of any employees of such subcontractors have not
been paid or provided pursuant to the appropriate schedule of wages and
supplements, the contractor shall be responsible for payment of such
wages or supplements pursuant to the provisions of section two hundred
thirty-nine-a of this article. Before final payment is made of any sums
due on account of such service work contract, the contractor shall be
required to file a supplemental statement setting forth any additional
amounts known by the contractor to be then due and owing by each
subcontractor for such wages or supplements, or that the contractor has
no knowledge of such amounts owing to or on behalf of any employee of
its subcontractors. Such statements so to be filed shall be verified by
the oath of the contractor that he or she has read such statements
subscribed by him or her and knows the contents thereof, and that the
same is true of his or her own knowledge, except with respect to wages
and supplements owing by subcontractors which may be certified upon
information and belief.
4. If any interested person shall have previously filed a protest in
writing objecting to the payment to any contractor or subcontractor to
the extent of the amount or amounts due or to become due to him for
daily or weekly wages for labor performed on the work for which such
contract was entered into, or if for any other reason it may be deemed
advisable, the comptroller of the state or the financial officer of the
public agency or other officer or person charged with the custody and
disbursement of the state or corporate funds applicable to the contract
for such work, may deduct from the whole amount of any payment on
account thereof the sum or sums admitted by any contractor or
subcontractor in such statement or statements as filed to be due and
owing by him or her on account of labor performed on such work before
making payment of the amount certified for payment in any estimate or
voucher, and may withhold the amount so deducted for the benefit of the
service employees whose wages are unpaid as shown by the verified
statements filed by any contractor or subcontractor, and may pay
directly to any person the amount or amounts shown by the statements
filed as hereinbefore required to be due to him or her or his or her
duly authorized collective bargaining labor organization receiving such
payment to the extent of the amount thereof.
Penalties. 1. Any contractor or subcontractor who shall upon
his oath verify any statement required to be filed under this article
which is known by him to be false shall be guilty of perjury and
punishable as provided by the penal law.
2. When a contract for service work contains as part thereof a
schedule of wages as provided for in this article, any contractor who,
after entering into such contract, and any subcontractor of such
contractor who fails to pay to any service employee the wages stipulated
in such wage schedule is guilty of a misdemeanor and upon conviction
shall be punished for a first offense by a fine of five hundred dollars
or by imprisonment for not more than thirty days or by both fine and
imprisonment; for a second offense by a fine of one thousand dollars,
and in addition thereto the contract on which the violation has occurred
shall be forfeited; and no such contractor shall be entitled to receive
any sum, nor shall any officer, agent or employee of the contracting
public agency pay any such sum or authorize its payment from the funds
under his charge or control to such contractor for work done upon the
contract on which the contractor has been convicted of a second offense.
If the contractor or subcontractor is a corporation, any officer of such
corporation who knowingly permits the corporation to fail to make such
payment shall also be guilty of a misdemeanor and the criminal and civil
penalties herein shall attach to such officer upon conviction.
Provisions in contracts prohibiting discrimination on account
of race, creed, color, national origin, age or sex. Every contract for
service work shall contain provisions by which the contractor agrees:
(1) that in the hiring of employees for the performance of work under
the contract or any subcontract thereunder within the territorial limits
of this state, no contractor, subcontractor, nor any person acting on
behalf of such contractor or subcontractor, shall by reason of race,
creed, color, national origin, age, sex or disability, discriminate
against any citizen of the state of New York who is qualified and
available to perform the work to which the employment relates;
(2) that no contractor, subcontractor, nor any person on his behalf
shall, in any manner, discriminate against or intimidate any employee
hired for the performance of work under the contract on account of race,
creed, color, national origin, age, sex or disability;
(3) that there may be deducted from the amount payable to the
contractor by the public agency under the contract a penalty of fifty
dollars for each person for each day during which such person was
discriminated against or intimidated in violation of the provisions of
the contract;
(4) that the contract may be cancelled or terminated by the public
agency, and all moneys due or to become due thereunder may be forfeited
for a second or any subsequent violation of the terms or conditions of
this section of the contract.
Enforcement of article. If the fiscal officer, as defined
herein, finds that any contractor on service work fails to comply with
or evades the provisions of this article, he shall present evidence of
such noncompliance or evasion to the public agency having charge of such
work for enforcement. Where such evidence indicates a noncompliance or
evasion on the part of a subcontractor, the contractor shall be
responsible for such noncompliance or evasion. It shall be the duty of
the public agency in charge of such service work to enforce the
provisions of this article.
ARTICLE 10 Building Construction, Demolition and Repair Work
Scaffolding and other devices for use of employees. 1. All
contractors and owners and their agents, except owners of one and
two-family dwellings who contract for but do not direct or control the
work, in the erection, demolition, repairing, altering, painting,
cleaning or pointing of a building or structure shall furnish or erect,
or cause to be furnished or erected for the performance of such labor,
scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys,
braces, irons, ropes, and other devices which shall be so constructed,
placed and operated as to give proper protection to a person so
employed.
No liability pursuant to this subdivision for the failure to provide
protection to a person so employed shall be imposed on professional
engineers as provided for in article one hundred forty-five of the
education law, architects as provided for in article one hundred
forty-seven of such law or landscape architects as provided for in
article one hundred forty-eight of such law who do not direct or control
the work for activities other than planning and design. This exception
shall not diminish or extinguish any liability of professional engineers
or architects or landscape architects arising under the common law or
any other provision of law.
2. Scaffolding or staging more than twenty feet from the ground or
floor, swung or suspended from an overhead support or erected with
stationary supports, except scaffolding wholly within the interior of a
building and covering the entire floor space of any room therein, shall
have a safety rail of suitable material properly attached, bolted,
braced or otherwise secured, rising at least thirty-four inches above
the floor or main portions of such scaffolding or staging and extending
along the entire length of the outside and the ends thereof, with only
such openings as may be necessary for the delivery of materials. Such
scaffolding or staging shall be so fastened as to prevent it from
swaying from the building or structure.
3. All scaffolding shall be so constructed as to bear four times the
maximum weight required to be dependent therefrom or placed thereon when
in use.
Construction, excavation and demolition work. All contractors
and owners and their agents, except owners of one and two-family
dwellings who contract for but do not direct or control the work, when
constructing or demolishing buildings or doing any excavating in
connection therewith, shall comply with the following requirements:
1. If the floors are to be arched between the beams thereof, or if the
floors or filling in between the floors are of fireproof material, the
flooring or filling in shall be completed as the building progresses.
2. If the floors are not to be filled in between the beams with brick
or other fireproof material, the underflooring shall be laid on each
story as the building progresses.
3. If double floors are not to be used, the floor two stories
immediately below the story where the work is being performed shall be
kept planked over.
4. If the floor beams are of iron or steel, the entire tier of iron or
steel beams on which the structural iron or steel work is being erected
shall be thoroughly planked over, except spaces reasonably required for
proper construction of the iron or steel work, for raising or lowering
of materials or for stairways and elevator shafts designated by the
plans and specifications.
5. If elevators, elevating machines or hod-hoisting apparatus are used
in the course of construction, for the purpose of lifting materials, the
shafts or openings in each floor and at each landing level shall be
inclosed or fenced in on all sides by a barrier of suitable height,
except on two sides which may be used for taking off and putting on
materials, and those sides shall be guarded by an adjustable barrier not
less than three nor more than four feet from the floor and not less than
two feet from the edges of such shafts or openings.
6. All areas in which construction, excavation or demolition work is
being performed shall be so constructed, shored, equipped, guarded,
arranged, operated and conducted as to provide reasonable and adequate
protection and safety to the persons employed therein or lawfully
frequenting such places. The commissioner may make rules to carry into
effect the provisions of this subdivision, and the owners and
contractors and their agents for such work, except owners of one and
two-family dwellings who contract for but do not direct or control the
work, shall comply therewith.
7. The commissioner may make rules to provide for the protection of
workers in connection with the excavation work for the construction of
buildings, the work of constructing or demolishing buildings and
structures, and the guarding of dangerous machinery used in connection
therewith, and the owners and contractors and their agents for such
work, except owners of one and two-family dwellings who contract for but
do not direct or control the work, shall comply therewith.
8. The commissioner, as deemed necessary, shall promulgate rules
designed for the purpose of providing for the reasonable and adequate
protection and safety of persons passing by all areas, buildings or
structures in which construction, excavation or demolition work is being
performed, and the owners and contractors and their agents for such
work, except owners of one and two-family dwellings who contract for but
do not direct or control the work, shall comply therewith. The
provisions of this subdivision shall not apply to cities having a
population of one million or more.
9. No liability for the non-compliance with any of the provisions of
this section shall be imposed on professional engineers as provided for
in article one hundred forty-five of the education law, architects as
provided for in article one hundred forty-seven of such law or landscape
architects as provided for in article one hundred forty-eight of such
law who do not direct or control the work for activities other than
planning and design. This exception shall not diminish or extinguish any
liability of professional engineers, architects or landscape architects
arising under the common law or any other provision of law.
10. Prior to advertising for bids or contracting for or commencing
work on any demolition work on buildings covered under this section
except agricultural buildings as defined in regulations promulgated by
the commissioner and except buildings the construction of which was
begun on or after January first, nineteen hundred seventy-four, all
owners and their agents, except owners of one and two-family dwellings
who contract for but do not direct or control the work, shall conduct or
cause to be conducted a survey to determine whether or not the building
to be demolished contains asbestos or asbestos material as defined in
section nine hundred one of this chapter. Such surveys shall be
conducted in conformance with rules and regulations promulgated by the
commissioner. Information derived from such survey shall be immediately
transmitted to the commissioner and to the local governmental entity
charged with issuing a permit for such demolition under applicable state
or local laws or, if no such permit is required, to the town or city
clerk. If such survey finds that a building to be demolished contains
asbestos or asbestos material as defined by section nine hundred one of
the chapter, no bids shall be advertised nor contracts awarded nor
demolition work commenced by any owner or agent prior to completion of
an asbestos remediation contract performed by a licensed asbestos
contractor as defined by section nine hundred one of this chapter.
Protection of workmen in or at elevator shaftways, hatchways
and stairwells. Any men working in or at elevator shaftways, hatchways
and stairwells of buildings in course of construction or demolition
shall be protected by sound planking at least two inches thick laid
across the opening at levels not more than two stories above and not
more than one story below such men, or by other means specified in the
rules of the board.
Marking of transparent glass doors required. All transparent
glass doors in mercantile establishments and in public and commercial
buildings and structures shall be marked in such manner as shall be
calculated to warn persons using the same that such doors are glass
doors. The board shall make such rules as it may deem proper or
necessary to carry into effect the provisions of this section.
Application and enforcement of article. Notwithstanding any
other law or regulation, local or general, the provisions of this
article and the rules issued thereunder shall be applicable exclusively
throughout the state and the commissioner shall have exclusive authority
to enforce this article and the rules issued thereunder.
ARTICLE 11 Factories
TITLE 2 Accident Prevention
TITLE 3 Fire Hazard
TITLE 4 Sanitation
TITLE 5 Foundries
TITLE 6 Duties of Owners and Occupiers
ARTICLE 12 Fair Wages Task Force
Fair wages task force; definitions. As used in this article,
the following terms shall have the following meanings:
(a) "Commissioner" shall mean the commissioner of labor;
(b) "Department" shall mean the department of labor; and
(c) "Task force" shall mean the fair wages task force within the
department.
Establishment of a fair wages task force. The commissioner is
authorized to establish a fair wages task force for the purpose of
concentrating enforcement of the provisions of this chapter affecting
employees in manufacturing, service and other industries where there may
be a concentration of workers at risk of exploitation in New York state
and otherwise exercising the duties and powers set forth in sections
three hundred thirty-two and three hundred thirty-three of this article.
Such task force shall be empowered to investigate and conduct
inspections.
Duties. The task force is charged with the following duties:
1. to inspect manufacturing, service and other industries with respect
to their respective employees, for compliance with the provisions of
this chapter; and
2. to ensure, with respect to their respective employees, compliance
by manufacturing, service and other industries with orders of, and
assessments of civil penalties by the commissioner pursuant to this
article.
Powers. Notwithstanding any other state or local law or
regulation to the contrary, the task force shall have the following
powers:
1. to inspect books, records and premises of employers, with respect
to their respective employees to determine compliance with this chapter,
including but not limited to, minimum wage, overtime compensation,
unemployment insurance coverage and child labor; and
2. when in the course of inspections pursuant to subdivision one of
this section, (a) to inspect books and records of employers with respect
to their respective employees concerning the deduction and remittance to
the proper authorities of all federal, state and local payroll taxes and
to refer to the appropriate authorities any instance in which there is
reasonable cause to believe that the payment of federal, state and local
payroll taxes is being evaded; and
(b) to take action authorized by this chapter necessary to implement
its provisions.
Task force training; assistance of agencies. 1. The task force
shall receive training to be provided by the state as is necessary to
carry out the duties and powers of the task force.
2. The task force may request from any department, division, board,
bureau, commission or other agency of the state, any political
subdivision of the state, a public authority or any other governmental
agency or instrumentality of the state, such assistance as shall enable
it to properly carry out its powers and duties under the provisions of
this section.
ARTICLE 12-A Special Task Force For the Apparel Industry
Special task force for the apparel industry. Definitions. As
used in this article, the following terms shall have the following
meanings:
(a) "Commissioner" shall mean the commissioner of labor;
(b) "Department" shall mean the department of labor;
(c) "Apparel industry" shall mean the making, cutting, sewing,
finishing, assembling, pressing or otherwise producing, by any of the
foregoing apparel industry services, any men's, women's, children's or
infants' apparel, or a section or component of apparel, designed or
intended to be worn by any individual which is to be sold or offered for
sale, provided, however, that the apparel industry shall not include
cleaning or tailoring after the apparel has been sold at retail;
(d) "Manufacturer" shall mean any person who (i) in fulfillment or
anticipation of a wholesale purchase contract, contracts with a
contractor to perform in New York state the cutting, sewing, finishing,
assembling, pressing or otherwise producing any men's, women's,
children's or infants' apparel, or a section or component of apparel,
designed or intended to be worn by any individual which, pursuant to
such contract, is to be sold or offered for sale to a retailer or other
entity, or (ii) cuts, sews, finishes, assembles, presses or otherwise
produces in New York state any men's, women's, children's or infants'
apparel, or a section or component, designed or intended to be worn by
any individual which is to be sold or offered for sale; provided,
however, that "manufacturer" shall not mean a production employee
employed for wages who does not employ others;
(e) "Contractor" shall mean any person who, in fulfillment of a
contract with a manufacturer, performs in New York state the cutting,
sewing, finishing, assembling, pressing or otherwise producing any
men's, women's, children's or infants' apparel, or a section or
component of apparel, designed or intended to be worn by any individual
which is to be sold or offered for sale. "Contractor" shall include, but
not be limited to, a subcontractor, jobber, or wholesaler, but shall not
include a production employee who is employed for wages but does not
employ others;
(f) "Production employees" shall mean persons who are employed by a
contractor or a manufacturer directly to perform the cutting, sewing,
finishing, assembling, pressing or otherwise producing of any men's,
women's, children's or infants' apparel, or a section or component of
apparel, designed or intended to be worn by any individual which is to
be sold or offered for sale;
(g) "Special task force" shall mean the special task force on the
apparel industry within the department; and
(h) "Labor law" shall mean the labor law of New York state.
(i) "Retailer" shall mean any mercantile enterprise which sells to
consumers or offers to sell to consumers any men's, women's, children's
or infants' apparel, or a section or component of apparel, designed or
intended to be worn by any individual consumer.
Registration. 1. No manufacturer or contractor shall engage in
the apparel industry unless he or she registers with the commissioner,
in writing, on a form provided by the commissioner, which shall contain
the following information: whether it is a sole proprietorship,
partnership or corporation, its name, address and number of production
employees, the name, home address and social security number of each
owner or partner, or if the registrant is a corporation, no shares of
which are listed on a national securities exchange or regularly quoted
in an over-the-counter market by one or more members of a national or an
affiliated securities association, of each officer and of each of the
ten largest shareholders thereof, how long it has been in business, its
tax identification number, whether it is a manufacturer or contractor,
the name and address of each person with a financial interest in the
manufacturer's or contractor's business and the amount of that interest,
except that if the manufacturer or contractor is a publicly-traded
corporation, only the names and addresses of the corporation officers
shall be required, whether it is in contractual relations with a labor
organization and, if so, the name and address of such labor
organization, a statement as to whether the registrant or any owner of
or partner in, or if the registrant is a corporation, no shares of which
are listed on a national securities exchange or regularly quoted in an
over-the-counter market by one or more members of a national or an
affiliated securities association, any officer or any of the ten largest
shareholders thereof has, within the last three years, been found by any
court or administrative body to have violated this chapter and, if so,
the nature and date of such violation and, if the registrant is a
contractor, whether that contractor subcontracts the cutting or sewing
of apparel or sections or components thereof. Such registration form
shall also require that each owner or partner, or if the registrant is a
corporation, then each officer, submit photographic proof of identity.
Divisions, subsidiary corporations or related companies may, at the
option of the manufacturer or contractor, be named and included under
one omnibus registration. Such registration shall be filed on or before
January fifteenth of each year. The commissioner shall issue a
certificate of registration, which shall be effective for a period of
twelve months, upon receipt of a completed registration form accompanied
by the requisite photographic proof of identity and documentation that
such manufacturer or contractor has paid any surety bond required
pursuant to subdivision eight of section three hundred forty-five of
this article and that a workers' compensation insurance policy is in
effect for the registrant's production employees working in New York
state. The initial registration fee shall be two hundred dollars and
each subsequent annual renewal registration fee shall be one hundred
fifty dollars. With respect to new employers, such registration shall be
filed upon the commencement of manufacturing or contracting in the
apparel industry and shall be effective until the following January
fifteenth. The commissioner may pro rate the initial annual registration
fee in such instances.
2. Proof of registration shall be by an official department
registration certificate which shall be posted where it may be read by
employees during the workday.
Unlawfully manufactured apparel. The commissioner shall have
the power to affix to any article of apparel or component thereof, in
the manufacture or assembly of which any employee was employed in
violation of article six or nineteen of this chapter, a tag of no more
than six inches in length bearing the words "unlawfully manufactured."
Any person other than the commissioner, the commissioner's duly
authorized representative or consumer of such article of apparel or
component thereof who removes, alters, defaces or otherwise interferes
with such a tag shall be guilty of a misdemeanor.
Establishment of a special task force. The commissioner is
authorized to establish a special task force for the purpose of
concentrating enforcement of the labor law affecting production
employees in the apparel industry in New York state and otherwise
exercising the duties and powers set forth in sections three hundred
forty-three and three hundred forty-four of this article. Such special
task force shall be empowered to investigate and conduct inspections at
locations where an apparel industry contractor is operating.
The commissioner is further authorized to publish on the internet
listings of those persons and entities investigated by the department or
the special task force on the apparel industry and found not to be in
compliance with the law. The listing shall include all relevant
information concerning the violators included in the registration
process in accordance with section three hundred forty-one of this
article. The listing shall be updated regularly, not less than monthly,
amended to be adjusted for new instances of non-compliance. Any retailer
or manufacturer or contractor requesting verification of the
registration status of a manufacturer or contractor shall be provided
with a reference to this internet web site listing.
Duties. The special task force is charged with the following
duties: 1. To inspect manufacturers and contractors, with respect to
their respective production employees, for compliance with the
registration requirements of section three hundred forty-one of this
article;
2. To inspect manufacturers and contractors, with respect to their
respective production employees, for compliance with the labor law;
3. To insure, with respect to their respective production employees,
compliance by manufacturers and contractors with the orders of, and
assessments of civil penalties by, the commissioner pursuant to this
article; and
4. To submit annual reports to the governor, the temporary president
of the senate, the speaker of the assembly, and the chairpersons of the
senate and assembly labor committees detailing:
(a) the number of complaints, investigations and dispositions by the
task force including any resulting fines, restitution, referrals to the
attorney general and criminal prosecutions;
(b) the number of investigators and other filled staff positions on
the task force including the total number of authorized positions and
whether any investigators are bilingual and, if so, in what language;
(c) the amount of money allocated annually by the department and the
amount actually spent; and
(d) any recommendations for improving enforcement efforts against
apparel manufacturers and contractors which violate the law.
Powers. Notwithstanding any other state or local law or
regulation to the contrary, the special task force shall have the
following powers: 1. To inspect books, records and premises of
manufacturers and contractors, with respect to their respective
production employees, to determine compliance with this chapter,
including but not limited to, minimum wage, overtime compensation,
unemployment insurance coverage, child labor and industrial homework
and, if the special task force determines that a manufacturer or
contractor has violated any provision of this chapter with respect to
its production employees, to assess and collect, on behalf of the
commissioner, an administrative penalty. If the violation is of a
provision of this chapter for which the assessment and collection of an
administrative penalty is not otherwise authorized, the special task
force may assess and collect a penalty of up to two hundred fifty
dollars for a first violation and up to five hundred dollars for each
subsequent violation. No penalty shall be levied pursuant to this
subdivision unless the commissioner shall provide the violator with
notification of such violation and of the amount of such administrative
penalty by certified mail and with an opportunity to request a hearing
within fifteen days following the receipt of such notice. If a hearing
is requested, the commissioner may issue a final order upon such hearing
and a finding that a violation has occurred. If no hearing is requested,
such notice shall become a final order upon the expiration of the
fifteen-day period. Payment of such administrative penalty is due when a
final order is issued or when the notice becomes a final order. Any
penalty imposed pursuant to this subdivision may be recovered with costs
upon an appeal to the appellate division of the supreme court pursuant
to article seventy-eight of the civil practice law and rules and upon a
final determination that the finding by the commissioner was in error.
Any penalty paid pursuant to this subdivision shall be applied to
enforcement and administrative costs of the special task force;
2. When in the course of inspections pursuant to subdivision one
above: (a) To inspect books and records of manufacturers and
contractors, with respect to their respective production employees,
concerning the deduction and remittance to the proper authorities of all
federal, state and local payroll taxes and to refer to the appropriate
authorities any instance in which there is reasonable cause to believe
that the payment of federal, state and local payroll taxes is being
evaded; and
(b) To inspect premises of manufacturers and contractors, with respect
to their respective production employees, to determine compliance with
concerning state or local building codes, state or local fire codes,
laws or regulations and state or local health codes, laws or regulations
and to refer to the appropriate authorities any instance in which there
is reasonable cause to believe that a violation of such codes, laws or
regulations exists; and to immediately evacuate and close any premises
deemed by a special task force investigator trained in accordance with
section three hundred forty-six of this article to recognize fire code
violations, to be a serious violation of the applicable fire code; and
to refer such violation immediately to the appropriate local
authorities; and
(c) To take action authorized by this article necessary to implement
its provisions.
Violations, penalties, procedures. 1. Any manufacturer or
contractor in the apparel industry who has failed to comply with the
registration requirements of section three hundred forty-one of this
article shall be deemed to have violated this article.
2. Any manufacturer or contractor in the apparel industry who has
failed to comply within the time specified by law with an order issued
by the commissioner to comply with the registration requirements of
section three hundred forty-one of this article shall be deemed to have
violated this article.
3. Any manufacturer or contractor in the apparel industry who
contracts for the performance of any apparel industry service, as
defined in section three hundred forty of this article, with any other
manufacturer or contractor who is required to register, but whom the
manufacturer or contractor knows has failed to register, failed to renew
its registration or has had its registration revoked by the commissioner
shall be deemed to have violated this article.
4. (a) The commissioner may impose a civil penalty upon a manufacturer
or contractor of up to one thousand five hundred dollars for the initial
violation of subdivision one, two or three of this section and up to
three thousand dollars for the second or subsequent violation of
subdivision one, two or three of this section. Instead of, or in
addition to, such civil penalty, the commissioner may assess and collect
an administrative penalty of not more than two hundred fifty dollars for
the first violation and of not more than five hundred dollars for each
subsequent violation. No administrative penalty shall be levied pursuant
to this paragraph unless the commissioner provides the violator with
notification of the violation and of the penalty by certified mail and
with an opportunity to request a hearing within fifteen days following
receipt of such notice. If a hearing is requested, the commissioner may
issue a final order upon such hearing and a finding that a violation has
occurred. If no hearing is requested, such notice shall become a final
order upon the expiration of such fifteen-day period. Payment of such
administrative penalty is due when a final order is issued or when the
notice becomes a final order. Any administrative penalty imposed
pursuant to this paragraph may be recovered with costs upon an appeal to
the appellate division of the supreme court pursuant to article
seventy-eight of the civil practice law and rules and upon a final
determination that the finding of the commissioner was in error. Any
civil or administrative penalty paid pursuant to this subdivision shall
be applied to enforcement and administrative costs of the special task
force. In assessing the amount of the penalty, the commissioner shall
give due consideration to the size of the manufacturer's or contractor's
business, its good faith, the gravity of the violation, the history of
previous violations of this article and the manufacturer's or
contractor's compliance with the recordkeeping or other provisions of
this chapter.
(b) The order imposing such civil penalty may be served personally or
by certified mail. Such order shall be in writing and shall describe the
nature of the violation, including reference to the provisions of
subdivision one, two or three of this section alleged to have been
violated.
5. (a) An order issued under this section shall be final and not
subject to review by any court or agency unless review is had pursuant
to section one hundred one of this chapter.
(b) Provided that no proceeding for administrative or judicial review
as provided in this chapter shall then be pending and the time for
initiation of such proceeding shall have expired, the commissioner may
file with the county clerk of the county where the employer resides or
has a place of business the order of the commissioner or the decision of
the industrial board of appeals containing the amount of the civil
penalty. The filing of such order or decision shall have the full force
and effect of a judgment duly docketed in the office of such clerk. The
order or decision may be enforced by and in the name of the commissioner
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.
6. If any manufacturer or contractor shall have failed to comply
within twenty days of an order by the commissioner to register or renew
registration, the commissioner may seek to enjoin such unlawful
activity, pursuant to the civil practice law and rules.
7. (a) No manufacturer or contractor shall perform services or hold
itself out as being able to perform services as a registered
manufacturer unless such manufacturer or contractor holds a valid
registration pursuant to this article. The intentional failure of an
apparel manufacturer or contractor to comply with the registration
requirements of section three hundred forty-one of this article shall be
a class B misdemeanor. The officers and agents of any corporation who
knowingly permit such corporation to violate the registration
requirements of section three hundred forty-one of this article shall be
guilty of a class B misdemeanor.
(b) A manufacturer or contractor which knowingly violates paragraph
(a) of this subdivision within three years of having been found guilty
of violating this subdivision shall be guilty of a class A misdemeanor,
as defined in the penal law.
8. (a) The commissioner may, after a hearing thereon, require, as a
condition of continued registration, the payment of a surety bond or may
revoke the registration of any manufacturer or contractor for any period
ranging from thirty days to one year upon being found guilty of a second
violation of the same provision of this article within any two-year
period. In assessing whether to require a surety bond or revoke such
registration, the commissioner shall give due consideration to the size
of the manufacturer's or contractor's business, its good faith, the
gravity of the violation, the history of previous violations and the
manufacturer's or contractor's compliance with the recordkeeping or
other provisions of this chapter.
(b) Such surety bond shall be payable to the state and shall be for
the benefit of production employees damaged by any failure of a
manufacturer or contractor to pay wages or benefits or otherwise comply
with the provisions of this chapter. Such surety bond shall be in the
sum and form that the commissioner shall deem to be necessary to protect
such production employees but shall in no case exceed twenty-five
hundred dollars per production employee.
9. Any manufacturer or contractor who contracts, for the second time
within any three year period, for the performance of any apparel
industry service, as defined in section three hundred forty of this
article, with any other manufacturer or contractor whom the manufacturer
or contractor knows has failed to comply with the registration
requirements of section three hundred forty-one of this article shall,
if such other manufacturer or contractor has failed to pay any civil
penalty assessed under subdivision one of section three hundred
forty-five of this article, be liable to pay a civil penalty equal to
the civil penalty that such other manufacturer or contractor has been
assessed. Nothing herein shall affect the right of any manufacturer to
possess or repossess any apparel, or sections or components of apparel,
that are located at any contractor with whom it has contracted.
10. (a) Any manufacturer or contractor in the apparel industry who
ships, delivers or sells any apparel or sections of apparel; who knew or
should have known that such goods were produced in violation of article
six or nineteen of this chapter, shall be deemed to have violated this
article;
(b) Any retailer who sells any apparel or sections of apparel, who
knew or should have known that such goods were produced in violation of
article six or nineteen of this chapter, shall be deemed to have
violated this article. Except that no violation of this article shall be
deemed to have occurred if the retailer acquired the apparel or sections
of apparel without notice from the commissioner of any violations of
article six or nineteen of this chapter and with the written or
electronically transmitted assurance of such manufacturer or contractor,
given before or after production, whether as part of the retailer's
vendor approval process, purchase contract requirements, electronically
transmitted purchase order acknowledgments or invoices, or otherwise,
that such goods would be, or were, produced in compliance with this
article or, generally, all applicable laws; and
(c) Subject to the exceptions in paragraph (b) of this subdivision,
the supreme court of the state shall have jurisdiction, upon petition of
the attorney general, to restrain the shipping, delivery, sale or
purchase by any manufacturer, contractor or retailer of apparel or
sections of apparel upon a showing that such apparel or sections of
apparel were, during the previous one hundred eighty days, produced in
violation of article six or nineteen of this chapter or sold in
violation of paragraph (a) or (b) of this subdivision. Such proceeding
shall be brought in the county in which the violation is alleged to have
taken place. In any such proceeding the court may make allowances to the
attorney general provided in paragraph six of subdivision (a) of section
eighty-three hundred three of the civil practice law and rules. In
connection with such application, the attorney general is authorized to
take proof and make a determination of the relevant facts and to issue
subpoenas in accordance with the civil practice law and rules.
Liability of manufacturers and contractors. 1. A manufacturer
or contractor who contracts or subcontracts with another manufacturer or
contractor for the performance of any apparel industry service within
the meaning of subdivision (c) of section three hundred forty of this
article and who knew or should have known with the exercise of
reasonable care or diligence of such other manufacturer's or
contractor's failure to comply with article six or nineteen of this
chapter in the performance of such service shall be liable for such
failure.
2. For the purposes of this section, the exercise of reasonable care
or diligence by a manufacturer or contractor shall be presumed if, prior
to the execution of such contract or subcontract, and annually
thereafter, such manufacturer or contractor receives from the department
written assurance of compliance with section three hundred forty-one of
this article.
Confiscation of goods. 1. The commissioner may, in addition
to seeking civil, administrative or criminal penalties pursuant to this
article, order the special task force to confiscate any partially or
completely assembled articles of apparel and any equipment used in the
assembly of apparel from any manufacturer or contractor who is violating
any provision of this article and who has previously been found liable
for a civil or administrative penalty for two or more separate
violations of the provisions of this article during the immediately
preceding three-year period. Such order of confiscation shall require
that such articles of apparel and equipment shall be held in the
premises at which such confiscation occurs and that such articles and
equipment shall be secured by any means, including the use of a padlock,
to render such articles and equipment inaccessible; provided, however,
that the commissioner shall not secure any dwelling unit or other space
lawfully used for residential purposes.
2. Such order of confiscation shall be posted upon the secured
premises and shall give notice that removal of secured property is
prohibited by law. Removal of such posted order while it remains in
force shall be punishable by a fine of five hundred dollars. Any attempt
to remove secured articles and equipment while such order remains in
force shall be punishable by a fine not to exceed one thousand dollars
or by imprisonment not to exceed six months or both. The special task
force shall deliver the keys to the fee owner, lessor or lessee of such
premises if such owner, lessor or lessee is not the manufacturer or
contractor who is in violation of the provisions of this article.
3. Such articles and equipment shall remain secured pursuant to
subdivision one of this section until such order of confiscation becomes
final or until a final determination of any appeal pursuant to
subdivision four or five of this section of such order is rendered.
4. Within five days of confiscation pursuant to subdivision one of
this section, the commissioner shall provide the manufacturer or
contractor who is in violation of any provision of this article and
whose articles of apparel and equipment have been confiscated with
notification of such violation and confiscation by certified mail,
return receipt requested, and with an opportunity to request from the
commissioner by certified mail, return receipt requested, a hearing
within fifteen days following receipt of such notice. If a hearing is
requested, it shall be held within ten days following receipt of such
request, and the commissioner may issue a final confiscation order upon
such hearing and a finding that a violation has occurred. If a hearing
is not requested, the commissioner shall issue a final confiscation
order upon the expiration of such fifteen-day period. The manufacturer
or contractor may appeal the final confiscation order to the appellate
division of the supreme court within thirty days following the issuance
of such final confiscation order.
5. Upon issuance of a final confiscation order or, if such order is
appealed, upon a final resolution upholding such order, title to the
confiscated articles and equipment shall vest in the state, and such
items shall be sold at auction within sixty days from the vesting of
title. Proceeds of the auction shall be applied to enforcement and
administrative costs of the special task force. Any remaining items
shall be disposed of pursuant to regulations issued by the commissioner.
Special task force training; assistance of agencies. 1. The
special task force shall receive training to be provided by the state in
each of the areas of the labor law, state or local building codes, state
or local fire codes, laws or regulations and state or local health
codes, laws or regulations in which potential violations exist and such
other training as is necessary to carry out the duties and powers of the
special task force, as defined in sections three hundred forty-three and
three hundred forty-four of this article.
2. The special task force may request from any department, division,
board, bureau, commission or other agency of the state, any political
subdivision of the state, a public authority or any other governmental
agency or instrumentality of the state, such assistance as will enable
it to properly carry out its powers and duties hereunder.
Report. Two years after the date on which this article takes
effect, and on or before the thirty-first of January of each year
thereafter, the special task force shall issue a report on its
activities and on the apparel industry in New York state. This report
shall be delivered to the labor committees and ways and means and
finance committees of the legislature. The special task force shall
report on a regular basis to the apparel industry advisory committee of
the department, or its successor.
Powers of commissioner; surety bond; civil and criminal
penalties. 1. If an order has been issued by the commissioner pursuant
to section two hundred eighteen or two hundred nineteen of this chapter
within the previous five years to any person engaged as an employer in
the apparel industry directing compliance with any provision of article
six or nineteen of this chapter and such order has not been revoked or
annulled on review and the time for review has expired, or if it shall
appear to the commissioner that any person engaged as an employer or as
an agent or officer of a corporate employer in the apparel industry has
within the previous five years been convicted of a violation of any
provision of article six or nineteen of this chapter, or if it shall
appear that any person engaged as an employer in the apparel industry
has within the previous five years failed to comply within the time
specified by law with an order issued by the commissioner to comply with
the registration requirements of this article, the commissioner may
demand that such employer deposit with him a surety bond either in a sum
equal to his annual payroll, as determined by the commissioner or in the
discretion of the commissioner, in the sum of fifty thousand dollars.
Such bond shall be payable to the commissioner and shall be conditioned
that the employer and the officers thereof will, for a period of five
years, maintain full compliance with this article and articles six and
nineteen of this chapter, and shall be further conditioned upon the
payment by the employer of all judgments which may be recovered against
him pursuant to the provisions of this chapter. If within ten days after
demand for such bond, which demand shall be either personally served or
made by certified mail directed to the residence or last known business
address of the employer, such employer shall fail to deposit the same,
the employer shall be thereafter liable for a civil penalty of one
thousand dollars per day until the furnishing of the bond or cessation
of business by the employer, which civil penalty shall be payable to the
commissioner. The commissioner may bring an action in any court of
appropriate jurisdiction to compel the employer and the officers thereof
to furnish such a bond and to recover all civil penalties accrued.
2. Every person engaged as an employer, or any officer or agent of any
corporation in the apparel industry who knowingly fails to comply with
an order issued under subdivision one of this section shall be guilty of
a misdemeanor and upon conviction therefor shall be fined not less than
one hundred nor more than ten thousand dollars or imprisoned for not
more than one year or punished by both such a fine and imprisonment for
each such offense.
Annual reports. The commissioner shall publish, on or before
February first, two thousand five and quarterly thereafter, a report
setting forth the names of all registered apparel industry manufacturers
and contractors, and all of such manufacturers and contractors who were
found to be in violation of this article within the past year. Such
report shall be delivered to the governor, the speaker of the assembly,
the temporary president of the senate, the chairs of the assembly labor
committee and the senate labor committee, and in cities with a
population of one million or more, to every community board where any
such registered apparel industry manufacturer or contractor does
business, and to every certified and authorized labor union representing
employees working in the apparel industry. Such report shall include
instructions on registration requirements and information on how to
report unregistered apparel industry manufacturers or contractors to the
special task force for the garment industry.
ARTICLE 13 Industrial Homework
Legislative purpose and definitions. 1. The employment of women
and minors in industry in the state of New York under conditions
resulting in wages unreasonably low and conditions injurious to their
health and general welfare is a matter of grave and vital public
concern. Any conditions of employment especially fostering such working
conditions are therefore destructive of purposes already accepted as
sound public policy by the legislature of the state and should be
brought into conformity with that policy. Uncontrolled continuance of
homework is such a condition; here wages are notoriously lower and
working conditions endanger the health of the worker; the protection of
factory industries, which must operate in competition therewith and of
the women and minors employed therein and of the public interest of the
community at large in their health and well-being, require strict
control and gradual elimination of industrial homework. In the
considered judgment of the legislature this article is constitutional.
2. Whenever used in this article: a. "Manufacture," "manufacturing,"
"manufactured" or "making" includes preparation, alteration, repair or
finishing, in whole or in part, or handling in any way.
b. "Employer" means any person who either directly or through an
employee, agent, independent contractor, or any other person, delivers
or causes to be delivered to another person, any materials to be
manufactured in a home, and which are thereafter to be returned to him,
not for the personal use of himself or of a member of his family, or to
be delivered, mailed, or shipped to others.
c. "Home" means a room or an apartment in any house.
d. "House" means any building in which one or more persons regularly
sleep, and shall include outbuildings upon premises which include such
building; but where only a person or persons or the family of a person
or persons engaged in the service of the building, sleep in such
building, the term "house" shall apply only to the separate room or
rooms or to the apartment or apartments in which one or more of such
persons sleep.
e. "Industrial homework" means the manufacturing in a home, in whole
or in part, with or of material which has been furnished by an employer,
of any article or articles to be returned to the said employer, or to be
delivered, mailed, or shipped to others.
f. "Industrial homeworker" means any person who manufactures in a
home, in whole or in part, with or out of material furnished by an
employer for industrial homework, any article or articles to be returned
to such employer directly or indirectly, or to be delivered, mailed or
shipped to others.
g. "Person" includes a corporation, a copartnership or a joint stock
association.
h. "Homework contractor or distributor" means any person who for the
account or benefit of an employer delivers to a homeworker or any other
person not engaged by such employer articles or materials to be
manufactured in a home and thereafter to be returned to said person or
otherwise disposed of in accordance with his direction.
Powers of the industrial commissioner and exceptions. 1. The
industrial commissioner shall, after proper study and consideration,
determine within what industries conditions may permit of industrial
homework as hereinbefore defined without unduly jeopardizing the factory
workers in such industries as to both wages and working conditions and
without unduly injuring the health and welfare of the industrial
homeworker himself. The commissioner may then restrict the granting of
permits and licenses for industrial homework as herein defined to such
industries and may further issue rules and regulations designed to
control and regulate industrial homework in the said permitted
industries. In all other industries industrial homework is forbidden
unless expressly permitted in writing by the industrial commissioner.
2. a. Exception to this article shall be made by the industrial
commissioner in respect of clerical work done in a home. "Clerical work"
shall mean typing, stenciling, transcribing, copying, bookkeeping and
stenographic work. Clerical work shall not mean inserting, collating,
labeling, nesting, sorting, stamping or similar work.
b. Exception to this article may be made by the industrial
commissioner in respect of such other provisions consonant with the
general purpose of this article as the commissioner may on study
determine to be warranted by conditions.
Permits required. 1. An employer shall secure an employer's
permit from the commissioner before delivering or causing to be
delivered to another person any materials for manufacture by industrial
homework, and shall not deliver or cause to be delivered any materials
for industrial homework to a person who has not a certificate issued
pursuant to this article or to be worked on in a home which is not
licensed under this article.
Fees. All fees and other monies derived from the operation of
this article shall be paid into the state treasury to the credit of the
general fund.
Conditions of manufacture. 1. No person other than a person
resident therein shall carry on industrial homework on any article in a
home except as otherwise provided for under section three hundred
fifty-one, subdivision two, paragraph b.
2. No person shall carry on industrial homework except in accordance
with this article.
3. No child shall be employed in manufacture in a home except in
accordance with articles four and five of this chapter.
4. No employer having an employer's permit shall deliver or cause to
be delivered or received any articles for or as a result of homework
manufacture unless he shall keep in such form and forward to the
commissioner at such intervals as he may by regulation prescribe and on
such blanks as he may provide, a complete and accurate list of all
persons engaged in industrial homework on materials furnished or
distributed by him, of all places where such persons work, of all
materials furnished and distributed to such persons described as the
commissioner may require, of all goods which such persons have
manufactured and of the wages paid to each industrial homeworker, and
unless he shall attach to all materials delivered for homework
manufacture a label bearing his name and address or place of business
legibly written or printed in English.
5. No person shall do industrial homework, except in a home in which
he resides, and unless his name is on a homeworker's certificate issued
by the commissioner and permitting industrial homework to be done in
such home, and unless such certificate is exposed clearly in the home in
which industrial homework is being done.
6. No article of food, no dolls or dolls' clothing and no stuffed
animals or other stuffed toys used in the same way as dolls shall be
manufactured for a factory, either directly or through a contractor or
for an employer, in a home.
Distribution of homework to employees by employer. The
employer shall, wherever homework is permitted, distribute directly to
his homeworkers all material and articles of homework. No employer
shall give out any material or articles for homework through any
homework contractors or distributors. No homework contractors or
distributors shall receive or distribute any materials or articles for
or as a result of industrial homework.
This prohibition shall be deemed absolute; anything in this article to
the contrary notwithstanding, and shall not be subject to the powers of
the industrial commissioner under section three hundred fifty-one.
Periodic inspection. 1. The commissioner shall inspect every
house in which industrial homework is permitted, and the materials
issued to the industrial homeworker.
2. If the commissioner finds that any home in which homework is being
done is not clean, he shall order the tenant at once to clean it.
3. If the commissioner finds that a house or any home in which
homework is being done is in an unsanitary condition, or that there is
an infectious or communicable disease therein, he shall at once notify
the commissioner of health, or the chief health officer of the district
in which such house or home is situated.
Notice of unlawful manufacture. If the commissioner discovers
any manufacture in a house contrary to the provisions of this article,
he shall serve notice of such unlawful manufacture upon the employer.
Unlawfully manufactured articles. The commissioner shall
conspicuously affix to each or all articles unlawfully manufactured in a
house a tag not less than four inches in length bearing in small pica
capital letters the words "unlawfully made," or shall seize and hold
such article until claimed by the owner thereof. Unless the person
entitled to the possession of an article so seized shall claim it within
thirty days thereafter the said article may be destroyed or otherwise
disposed of. No person except the commissioner shall interfere with,
remove or deface such tag.
Revocation or suspension of permits and certificates. The
commissioner may revoke or suspend the permit of any employer or any
homeworker's certificate for a violation by such employer or by any
person named in such certificate, of the terms of such permit or
certificate, or of any provision of this chapter or of any regulation
made by the commissioner, or for non-compliance with an order issued by
the commissioner, within the time specified in such order.
Action and injunction. 1. The industrial commissioner may
maintain an action upon his own information or upon the complaint of a
private person against any person, partnership, corporation or
association, and any employee, agent, director or officer thereof who
commits any act or engages in any conduct prohibited by this article. In
any such action, the final judgment in favor of the plaintiff shall
perpetually restrain the defendant from the commission or continuance of
the act complained of. A temporary restraining order to restrain the
commission or continuance thereof may be granted upon proof, by
affidavit, that the defendant has violated any of the provisions of this
article. The provisions of statute or rule relating generally to
injunctions as provisional remedies in actions apply to such a temporary
restraining order and the proceedings thereupon.
2. If the industrial commissioner fails to maintain an action pursuant
to subdivision one hereof within fifteen days of being notified by
certified mail of such an alleged violation, any industrial homeworker
or any other person, partnership, corporation or association making such
mailing who is aggrieved by such alleged violation may commence such an
action and seek an injunction pursuant to the provisions of statute or
rule relating generally to injunctions as provisional remedies.
Inspection of health records. The commissioner may inspect such
records of any department of health or of any health officer or any
county board of health as will aid him in carrying out his duties under
this article. Any health officer or officer of any such department or
county board shall, at the commissioner's request, aid him in such
inspection.
Notice and hearing. No permit or certificate shall be refused,
revoked or suspended unless the holder previously have reasonable
notice, and an opportunity to be heard.
Summary proceedings; when may be instituted. The carrying on of
manufacture in a home or of industrial homework contrary to the
provisions of this article shall be cause for dispossessing its
occupants by summary proceedings to recover possession of real property.
Upon receipt from the commissioner of a notice showing such manufacture
or such industrial homework in a home, the owner or his agent shall
cause such manufacture or industrial homework to cease within ten days
and, if unable to do so, shall institute within fifteen days and
faithfully prosecute proceedings to dispossess the occupants.
Employment status of industrial homeworkers. All industrial
homeworkers shall be presumed to be employees of their employer and not
independent contractors.
Civil penalties. 1. If after investigation the commissioner
finds that an employer has violated any provision of this article, the
commissioner, shall by an order which shall describe particularly the
nature of the alleged violation, assess the employer a civil penalty of
not more than three thousand dollars for each violation. In assessing
the amount of the penalty, the commissioner shall give due consideration
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 record keeping or other requirements.
2. Any order issued under subdivision one of this section shall be
deemed a final order of the commissioner and not subject to review by
any court or agency unless within thirty days following service of the
order the employer files a petition with the industrial board of appeals
for a review of the order, pursuant to section one hundred one of this
chapter.
3. Provided that no proceeding for administrative or judicial review
as provided in this chapter shall then be pending and the time for
initiation of such proceeding shall have expired, the commissioner may
file with the county clerk of the county where the employer resides or
has a place of business the order of the commissioner, or the decision
of the industrial board of appeals containing the amount of the civil
penalty. The filing of such order or decision shall have the full force
and effect of a judgment duly docketed in the office of such clerk. The
order or decision may be enforced by and in the name of the commissioner
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.
4. The civil penalty provided for in this section shall be in addition
to and may be imposed concurrently with any other remedy or penalty
provided for in this chapter.
Rules and regulations. Rules and regulations necessary to carry
out the provisions of this article shall be made by the commissioner.
Construction. If any provision of this article or the
application thereof to any person or circumstance is held invalid, the
remainder of the article and the application of such provision to other
persons or circumstances shall not be affected thereby.
ARTICLE 14 Mercantile and Other Establishments
TITLE 1 Sanitation
TITLE 2 General
ARTICLE 15 Mines and Tunnels; Quarries; Compressed Air
TITLE 1 Mines, Tunnels and Quarries
TITLE 2 Mines and Tunnels Only
TITLE 3 Compressed Air
TITLE 4 Enforcement of Article
ARTICLE 16 Explosives
Application of article. 1. This article shall apply to persons
engaged in the manufacture, ownership, possession, storage, use,
transportation, purchase, sale or gift of explosives as defined in
subdivision one of section four hundred fifty-one of this article.
2. This article shall not apply to explosives while being transported
in conformity with federal law or regulations, nor except as may be
herein otherwise provided to persons who manufacture, own, possess,
store, use, transport, purchase, sell or give explosives within the
territorial boundaries of cities having more than one million
inhabitants, nor to any of the following while in the performance of
their official duties: the armed forces of the United States, the
national guard, the state guard and duly constituted police and
firefighting forces of the state and its civil and political
subdivisions.
3. For all purposes of this article, explosives in the possession of
an employee within the scope of his duties, shall be considered to be in
the possession of the employer.
Definitions. Whenever used in this article: 1. "Explosives"
means gunpowder, powders used for blasting, high explosives, blasting
materials, detonating fuses, detonators, pyrotechnics and other
detonating agents, fireworks and dangerous fireworks as defined in
section 270.00 of the penal law, smokeless powder and any chemical
compound or any mechanical mixture containing any oxidizing and
combustible units, or other ingredients in such proportions, quantities,
or packing that ignition by fire, friction, concussion, percussion or
detonation of any part thereof may cause and is intended to cause an
explosion, but shall not include gasoline, kerosene, naphtha,
turpentine, benzine, acetone, ethyl ether, benzol or quantities of black
powder not exceeding five pounds for use in firing of antique firearms
or artifacts or replicas thereof. Fixed ammunition and primers for small
arms, pyrotechnic devices which are designed for and being used for
legitimate wildlife management or controls, safety fuses and matches
shall not be deemed to be explosives when, as provided by regulation,
the individual units contain any of the above-mentioned articles or
substances in such limited quantity, of such nature and so packed that
it is impossible to produce an explosion of such units to the injury of
life, limb or property. The term "explosives" shall also include two or
more components that are advertised and sold together with instructions
on how to combine the components to create any device designed or
specially adapted to facilitate a detonation or combustion.
2. "Highway" means any public street, public highway, public alley or
navigable waterway, which is open for traffic. Navigable waterways shall
be considered as only those susceptible of being used, in their ordinary
condition, as highways of commerce.
3. "Railroad" or "railway" means any railroad that carries passengers
or freight for hire, but shall not include auxiliary tracks, spurs and
sidings installed and primarily used in serving any mine, quarry or
plant.
4. "Building" means any building regularly occupied in whole or in
part as a habitation for human beings, and any church, school house,
railway station or other building or place where people are accustomed
to live, work or assemble, but does not mean or include any of the
buildings of a manufacturing plant where the business of manufacturing
explosives is carried on.
5. "Explosives factory" means any building or other structure in which
the manufacture of explosives or any part of the manufacture thereof is
carried on.
6. "Magazine" means any building or other structure, other than an
explosives factory, used to store explosives.
7. "Efficient barricade" means natural features of the ground, a dense
woods, an artificial mound or a properly revetted wall of earth not less
than three feet thick at the top, spaced at least three feet at the
bottom from any explosives factory or magazine, the height of which is
such that any straight line drawn from the top of any side wall of the
explosives factory or magazine to the top of a building or to a point
twelve feet above the center of a railroad or highway to be protected
will pass through such intervening barricade.
8. "Person" includes any natural person, partnership, association or
corporation.
9. "Manufacturer" means any person who is engaged in the manufacture
or production of explosives.
10. "Dealer" means any person engaged in the business of buying and
selling explosives.
11. "Pyrotechnics" means any combustible or explosive compositions of
manufactured articles designed and prepared for the purpose of producing
audible or visible effects that are commonly referred to as fireworks.
Packing and labeling. No person shall own, possess, store, deal
in, sell, give or purchase explosives unless the packing, or encasement,
and the marking and labeling of such explosives shall comply with the
regulations promulgated pursuant to this article.
Storage. No person shall store explosives except in a magazine
constructed, located and certified in accordance with the provisions of
this article and the regulations promulgated pursuant to this article.
The magazine certificate shall be attached to the magazine on the inside
of each such magazine. No person shall store more than three hundred
thousand pounds of explosives in any one magazine at any time.
Explosives not stored in compliance with this section shall be deemed to
present a danger to the public, including but not limited to, emergency
responders and other persons lawfully frequenting the area and as such,
are subject to seizure and destruction pursuant to subdivision five of
section four hundred sixty of this article.
This section shall not apply to explosives while being legally blasted
or while legally in the custody of a common carrier awaiting shipment or
delivery to a consignee during the time permitted by federal law; nor to
the storage of such limited amount of sporting or smokeless powders as
may be permitted by the regulations promulgated pursuant to this
article.
Construction of magazines. Unless otherwise prescribed by the
regulations promulgated pursuant to this article, magazines in which
explosives shall be lawfully kept or stored shall be constructed of
brick, concrete, metal or wood covered with metal, and shall have no
openings except for ventilation and entrance. All explosive magazines,
except those in mines and tunnels, shall be located above ground. All
explosive magazines shall be kept clean and dry at all times.
Magazine precautions. 1. No individual shall unlock, open the
doors of, or access the contents of, explosive magazines, except for the
lawful storage or removal of explosives and in accordance with
regulations of the commissioner. No employer shall allow any individual
access to the explosive magazines or explosives of the employer unless a
license has been issued to the individual by the commissioner as
provided in this article, or the individual is under the direct
supervision of the license holder.
No person shall have matches or fire of any kind in any magazine. No
person shall store or keep blasting caps, detonating or fulminating
caps, or detonators in a magazine in which any other type of explosive
is stored or kept. No person shall open any package of explosives within
fifty feet of any magazine, nor shall any explosives be kept in a
magazine except in the original containers, or as otherwise provided by
regulations promulgated under this article. No person shall discharge
firearms within five hundred feet of a magazine or explosives factory,
or at or against any such building or magazine. Any theft or loss of
explosives from a storage magazine or otherwise, shall immediately be
reported to the commissioner and the state or local police or county
sheriff.
Location of magazines. The quantity of explosives that may be
stored in any explosives factory or magazine shall depend upon its
distances from the nearest building, railroad or highway or other
magazine. The distances that a quantity of explosives may be stored from
the nearest magazine, building, railroad or highway, shall be as
determined by the regulations promulgated pursuant to this article. All
such distances may be reduced one-half when the magazine, building,
railroad or highway to be protected is adequately screened from the
explosives factory or magazine by an efficient barricade as defined in
subdivision seven of section four hundred fifty-one of this article.
Relocation of magazines. 1. When any magazine is moved from the
location for which it was certified according to section four hundred
fifty-six of this article, and the magazine is or is intended to be used
for the storage of explosives and will be in the new location for more
than twenty-four hours, the commissioner shall be notified as to the new
location of the magazine. Such notification shall be made no later than
one business day prior to the move. The notification shall contain all
of the information required by the commissioner.
2. The provisions of subdivision one of this section shall not apply
where the relocation has been ordered by police, fire or other
authorized emergency personnel, or where the continued storage in the
current location would constitute a threat to life or property. In such
cases the commissioner shall be notified as soon as practicable after
the relocation but in no case more than two business days following such
relocation.
3. When a magazine is abandoned, sold or removed from service, the
certificate holder shall notify the commissioner no later than three
business days from the date of such action and shall surrender the
certificate to the commissioner.
Licenses and certificates. 1. No person shall purchase, own,
possess, transport or use explosives unless a license therefor shall
have been issued as provided in this article.
Application for such a license shall be made to the commissioner on
forms provided and shall contain such information as the commissioner
may require. Where the commissioner finds that the applicant has
complied with the requirements of this article and the rules promulgated
hereunder, the commissioner shall issue such license or renewal thereof
which shall be valid for not less than one year from the date of
issuance. Such application and each renewal thereof shall be accompanied
by a non-refundable fee of not less than fifty dollars to be payable to
the commissioner.
2. No person shall manufacture, deal in, sell, give, test, or dispose
of explosives unless a license therefor shall have been issued to such
person for that purpose by the commissioner as provided in this article,
nor shall any person sell, give, test, or dispose of explosives to, or
manufacture explosives for any person who does not hold a license as
provided by subdivision one of this section.
Application for such a license shall be made to the commissioner on
forms provided and shall contain such information as the commissioner
may require. The commissioner, after investigation of the application,
shall issue a license or renewal thereof, which shall be valid for not
less than one year from the date of issuance, where the commissioner
finds that the applicant has complied with the requirements of this
article and the rules promulgated hereunder. Each application for such a
license, or for its renewal, shall be accompanied by a fee of not less
than one hundred dollars non-refundable to be payable to the
commissioner.
3. No person shall keep or store explosives unless a certificate
therefor shall have been issued by the commissioner as provided in this
section.
Application for such a certificate shall be made to the commissioner
on forms provided and shall contain such information as the commissioner
may require. The commissioner, where it is found that the applicant has
complied with the requirements of this article,, the rules promulgated
hereunder and all other applicable sections of this chapter and
regulations promulgated by the commissioner, shall issue a certificate
or a renewal thereof, which shall be valid for not less than one year
from the date of issuance. In addition to any other causes for
revocation of a certificate hereinafter provided, the commissioner may
revoke or modify such certificate because of any change in the
conditions under which it was granted, or for failure to pay the
required fee. The owner or user of a magazine shall pay to the
commissioner a fee of not less than fifty dollars, which shall be
proportioned according to the quantity and type of explosives authorized
by the certificate to be stored in the magazine.
4. An application for a license or a certificate pursuant to this
section shall contain information sufficient to identify the applicant,
and the purpose for which and the place where the explosives are to be
used, manufactured, dealt in, given, disposed of or stored, as the case
may be, and to demonstrate the eligibility of such applicant for the
license or certificate requested. The commissioner may require that the
application include, among other things, photographs, fingerprints and
personal references. Such fingerprints shall be submitted to the
division of criminal justice services for a state criminal history
record check, as defined in subdivision one of section three thousand
thirty-five of the education law, and may be submitted to the federal
bureau of investigation for a national criminal history record check. An
application for a license or certificate required to be filed with the
department pursuant to this section shall be signed by the applicant and
affirmed by him or her as true under penalty of perjury.
5. Before a license or certificate is issued, the commissioner shall
investigate the eligibility of the applicant. The commissioner shall
have the authority to request and receive from any department, division,
board, bureau, commission or agency of the state or local government
thereof such assistance and information as will enable the commissioner
to properly and effectively carry out the powers and duties under this
article.
6. (a) The investigation prescribed in subdivision five of this
section may include, but is not limited to the following:
(1) a personal interview of the applicant by a designated agent of the
commissioner if the commissioner is unable to make a determination on
the basis of the factors contained in the application;
(2) an examination as to the applicant's knowledge and ability with
respect to basic safety precautions in the possession, handling,
storage, manufacture and transportation of explosives, and for such
purpose the commissioner may prescribe tests which the applicant shall
be required to pass as a prerequisite to the issuance of the license or
certificate. The test may be administered by any person or agency
designated by the commissioner.
(b) The investigation prescribed in subdivision five of this section
shall include a report from the New York state identification and
intelligence system, and such other identification services of the state
or federal government as may be necessary or appropriate for this
purpose.
7. The commissioner may waive any of the procedures set forth in
paragraph (b) of subdivision six of this section with respect to any
applicant for whom criminal history or other information has been
obtained from any federal bureau or agency.
8. Except for the provisions of subdivision eleven of this section,
this section shall not apply to smokeless powder.
9. Within thirty days after the issuance of a license or certificate
under this section, the commissioner shall notify the chief executive
officer of the municipality where the licensee resides or where the
certificate holder has his or her place of business of the issuance of
such license or certificate, and provide such officer with such other
information pertaining thereto as the commissioner may prescribe.
10. Agencies of the United States, the state and its political and
civil subdivisions which are subject to the requirements of this article
and which, in the exercise of their functions, are required to purchase,
own, store, use or transport explosives shall not be liable for the
payment of any fee required by this section.
11. No explosives shall be sold, given or delivered to any individual
under eighteen years of age, whether such individual is acting for
himself, herself or for another person, nor shall any such individual be
eligible to obtain any license or certificate required under this
section.
Denial or revocation of license or certificate. 1. A license or
certificate, or the renewal thereof may be denied where the commissioner
has probable reason to believe, based on knowledge or reliable
information, or finds, after investigation, that the applicant or any
officer, servant, agent or employee of the applicant is not sufficiently
reliable and experienced to be authorized to own, possess, store,
transport, use, manufacture, deal in, sell, purchase or otherwise
handle, as the case may be, explosives, lacks suitable facilities
therefor, has been convicted of a felony, is disloyal or hostile to the
United States, has been confined as a patient or incarcerated individual
in a public or private institution for the treatment of mental diseases
or has been convicted under section four hundred eighty-four of the
general business law. Whenever the commissioner denies an application
for a license or certificate or the renewal thereof, within five days of
such denial, notice thereof and the reasons therefor shall be provided
in writing to the applicant. Such denial may be appealed to the
commissioner who shall follow the procedure provided by subdivision four
of this section.
2. The commissioner may revoke any certificate or license on any
ground or grounds authorized in subdivision one of this section for the
denial of a license or certificate, or for a violation of the terms of
such license or certificate, or for a violation of any provision of this
article or regulations promulgated hereunder, or for non-compliance with
any order issued by the commissioner within the time specified in such
order.
The commissioner may, where he or she has probable reason to believe,
based on knowledge or reliable information, that a licensee or
certificate holder is disloyal to the United States, summarily revoke
the license or certificate or may give such licensee or certificate
holder notice and opportunity to be heard as provided in subdivision
four of this section. Revocation of a license or certificate for any
other ground may be ordered only after giving written notice and an
opportunity to be heard to the holder thereof. Such notice shall specify
the ground or grounds on which it is proposed to revoke the license or
certificate. When a license or certificate is revoked, the commissioner
may direct the seizure and/or disposition of explosives held by such
licensee or certificate holder. Upon revocation of a license or
certificate by the commissioner, the holder thereof shall surrender the
license or certificate to the commissioner at once.
3. The commissioner may summarily suspend the license or certificate
pending proceedings for revocation or other action, where he or she has
reason to believe, based on knowledge or reliable information, that the
continued possession of a license or certificate poses a danger to
public health, safety or welfare, and incorporates a finding to that
effect in his or her order. These proceedings shall be promptly
instituted and determined. Such suspension shall be effective on the
date specified in the order or upon service of a certified copy of such
order on the license or certificate holder, whichever shall be later.
4. Unless, within fifteen days from the date of notice, the applicant
for a license or certificate or the recipient of a notice stating that
the commissioner proposes to revoke a license or certificate held by him
or her, shall file a written answer with the commissioner denying the
ground or grounds on which a license or certificate has been denied or
not renewed or ground or grounds on which revocation of a license or
certificate is sought, and shall request a hearing, the commissioner may
make a final determination respecting the application for a license or
certificate, or may revoke a license or certificate forthwith. If,
within such fifteen days, the applicant, licensee or certificate holder
files such answer and request for hearing, the commissioner shall
schedule a hearing. The notice of hearing shall state the time, place,
and subject of the hearing, and shall be mailed to the applicant,
certificate holder or licensee at his or her last known address at least
five days before the date of hearing. Hearings shall be held by the
commissioner or his or her representative, and the applicant,
certificate holder or licensee may appear in person or may be
represented by an agent. After such hearing, the commissioner shall
render a decision in writing.
Seizure, impounding, destruction or disposition of explosives.
1. The commissioner is hereby authorized and empowered, without
application to any court, to seize and impound any explosives found
within this state, except in cities having a population of more than one
million inhabitants, which are in apparent violation of any of the
provisions of this article, regulations promulgated hereunder or laws or
regulations of the federal government, or which have been abandoned or
lost, or where the commissioner has reason to believe that public safety
is endangered by such explosives. Such explosives may be removed and
transported by the commissioner and stored in magazines provided or
obtained for that purpose by the state or by the commissioner.
2. The owner of such explosives may, within five days of such seizure,
make written demand upon the commissioner for a hearing. Upon such
demand, the commissioner shall give the owner written notice of the time
and place of such hearing to be held not less than ten days thereafter.
3. Where no hearing is demanded within the time herein prescribed or
where, after hearing, the commissioner finds that there has been a
violation of the provisions of this article, regulations promulgated
hereunder or laws or regulations of the federal government, or that
public safety is endangered, the commissioner may destroy or order the
destruction of such explosives without liability, or direct such other
disposition of the explosives. If the commissioner finds there has been
no such violation and that public safety has not been endangered, such
explosives shall be returned to the owner thereof.
4. Where such explosives have been abandoned or lost, and no claimant
has appeared within thirty days, demanded the return of the explosives
and proved, to the satisfaction of the commissioner, the claimant's
title to and right of possession of such explosives, the commissioner
may destroy or direct the destruction thereof, or direct such other
disposition thereof as is deemed proper.
5. Any provision herein to the contrary notwithstanding, where, in the
opinion of the commissioner, the manufacture, condition, storage,
packing or location of explosives is such that its continued existence
or transportation is a danger to public safety, the commissioner may,
without hearing and without liability therefor to the owner thereof,
seize and destroy or direct the seizure and destruction of such
explosives.
Record and notice of sales, deliveries or gifts. 1. Every
person selling, delivering, giving away or otherwise transferring or
disposing of explosives shall keep at his or her principal office or
place of business within the state, a record of the transaction,
including the name or type and quantity of the explosive, such
identification of the explosive as may be required by the regulations
promulgated pursuant to this article, the date of each sale, delivery,
gift, transfer or disposition, the name and business address of the
purchaser, donee, recipient or person to whom delivered, the number of
the license, if such license is required by section four hundred
fifty-eight of this article, and the name and address of the person
taking the explosives away. A report of all such transactions, when
requested, shall be submitted to the commissioner. Such record shall be
open to inspection by the commissioner or by federal, state and local
enforcement officers at all times. No person shall have in his or her
possession any explosives unless he or she has a bill of sale or other
evidence of title thereto.
2. Any provision in this article to the contrary notwithstanding, no
person in a city having more than one million inhabitants shall ship or
transport or cause to be shipped or transported explosives from such
city to any other place within the state, unless such person shall, at
least twenty-four hours prior to such shipment, transmit to the
commissioner a statement in writing giving the weight, name or brand and
type of explosives, the name and address of the person to whom such
explosives are to be sold, shipped, transported or delivered and the
date thereof. Upon receipt of such statement, the commissioner shall
provide immediate written notice of such shipment or transportation of
explosives to the mayor of a city having more than one million
inhabitants, or to the designee of the mayor. No person shall make any
such shipment except to a holder of a license issued hereunder.
3. No person within the state shall purchase, receive or accept
delivery of explosives from any place outside the state, and no person
shall bring explosives into the state from any place outside the state,
unless, he or she is in possession of a valid license issued by the
commissioner. The licensee receiving the explosives shall maintain a
record including the weight, name or brand and type of the explosives,
the name and address of the shipper and the date of shipment, for a
period of three years from the date of receipt or two years from the
date of final disposition of the explosives whichever occurs last.
Rules and regulations. The commissioner may make rules
supplemental to this article as deemed necessary or desirable to assure
the public safety as well as to provide reasonable and adequate
protection of the lives, health and safety of persons employed in the
manufacture, storage, handling, use, purchase, sale, disposition and
ownership of explosives. The commissioner may prescribe such regulations
as are deemed necessary and proper for the administration of this
article. The commissioner shall by rule adopt the codes, standards and
recommended practices promulgated by the most recent edition of National
Fire Protection Association, 1123 and 1126 Standards on Fireworks
Displays and Use of Pyrotechnics Before a Proximate Audience, in
accordance with the provisions of this article and article
twenty-eight-D of the general business law.
Review. All questions of fact arising under this article shall
be decided by the commissioner and there shall be no appeal from such
decision on any such question of fact. Upon the entry of an order issued
under sections four hundred fifty-nine and four hundred sixty of this
article, any party aggrieved thereby may commence a proceeding for
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 commissioner. Said proceeding shall be
commenced directly in the appellate division of the supreme court.
Nothing in this section shall in any way limit, qualify or prevent the
commissioner from destroying explosives as provided under section four
hundred sixty of this article.
Costs and penalties. 1. If the commissioner directs the
storage, destruction or other disposition of explosives pursuant to the
provisions of section four hundred fifty-nine or four hundred sixty of
this article, the commissioner may issue an order which shall set forth
the costs of such storage, transportation, handling, destruction or
other disposition and assess such costs against the owner of such
explosives, which shall be in addition to any other penalties imposed.
2. (a) If the commissioner determines that any person has violated any
provision of this article, section four hundred eighty-two of the
general business law relating to blasters and pyrotechnicians, or any
rule or regulation promulgated thereunder, the commissioner may issue an
order which shall describe the nature of the violation and assess such
person a civil penalty of up to ten thousand dollars per violation per
day until the violation is corrected. The penalty authorized pursuant to
this paragraph shall be paid to the commissioner for deposit in the
treasury of the state. In assessing the amount of the penalty, the
commissioner shall give due consideration to the size of the person's
business, the good faith effort of the person, the gravity of the
violation, and the history of previous violations.
(b) Whenever the commissioner issues an order under this section
against a person, the commissioner shall serve notice of the order by
registered mail upon the person at his or her last known address. Within
five days of service of the order, the person may make written demand
upon the commissioner for a hearing whereupon the commissioner shall
give such person written notice of the time and place of the hearing to
be held not less than ten days thereafter.
(c) Upon the entry of an order issued following a hearing under this
section, any party aggrieved by an order issued under this subdivision
or subdivision one of this section may commence a proceeding for 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 commissioner. Said proceeding shall be commenced
directly in the Appellate Division of the Supreme Court.
(d) Provided that no proceeding for judicial review as provided for in
this section shall then be pending and the time for initiation of such
proceeding shall have expired, the commissioner may file with the county
clerk of the county where the person resides or has a place of business,
the order of the commissioner, containing the amount of the civil
penalty. The filing of such order or decision shall have the full force
and effect of a judgment duly docketed in the office of such clerk, the
order or decision may be enforced by and in the name of the commissioner
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.
(e) A civil penalty provided for in this subdivision shall be in
addition to and may be imposed concurrently with any other penalty or
remedy provided for in this article.
3. Any person violating any provision of this article, or any rule or
regulation made hereunder, shall be guilty of a class E felony;
provided, however, that any person who possesses an explosive without
being duly licensed or otherwise authorized to do so under the
provisions of this article shall be guilty of a class D felony.
Whenever, as a result of a plea bargaining agreement the charge is
reduced to a lesser offense, such offense may, in addition to any term
of imprisonment prescribed by such offense, be punishable by a fine not
to exceed twenty-five hundred dollars.
Local laws. Except with regard to cities having a population
of over one million, the provisions of this article and the rules
adopted pursuant thereto shall be the minimum standard required and
shall supersede any special law or local ordinance inconsistent
therewith, and no local ordinance inconsistent therewith shall be
adopted, but nothing herein contained shall prevent the enactment by
local law or ordinance of additional requirements and restrictions.
Separability. If any provision of this article or the
application thereof to any person or circumstances is held invalid, the
remainder of the article and the application of such provision to other
persons or circumstances shall not be affected thereby.
ARTICLE 17 Public Safety
General provision as to construction, equipment and maintenance
of places of public assembly. All places of public assembly as
hereinbefore defined shall be so constructed, equipped and maintained as
to provide reasonable and adequate protection to the lives, health and
safety of all persons employed or assembled therein.
Rules. The board of standards and appeals shall make rules to
carry out the provisions of this article. Such rules shall be the
minimum standard required and shall supersede any special law or local
ordinance inconsistent therewith, and no local ordinance inconsistent
therewith shall be adopted, but nothing herein contained shall prevent
the enactment by local ordinance of additional requirements and
restrictions. Such rules of the board of standards and appeals for the
construction, equipment and maintenance of places of public assembly,
shall be subject to the procedure set forth in sections twenty-nine and
thirty of this chapter, may be limited in their application to certain
classes of buildings or to the conditions under which they are operated,
and some or all of them may apply only to those buildings or places to
be constructed, maintained or conducted in the future. Such rules shall
have the force and effect of law and be enforced in the same manner as
the provisions of this chapter.
Enforcement. The commissioner of labor shall enforce the
provisions of this article and rules adopted thereunder; provided,
however, that this section shall not apply to:
(a) any city exempted from this article by section four hundred
seventy-four-a hereof; or
(b) any city, town, or village having a department, board or officer
charged with the enforcement of building laws or ordinances, which files
with the commissioner of labor a duly certified copy of a resolution
adopted by its local legislative body assuming full responsibility for
enforcing the provisions of this article and the rules adopted
thereunder. Upon receipt of a certification of receipt of such
resolution by the commissioner, which shall be issued no later than
sixty days from the date of filing of such resolution, such city, town,
or village shall have all the powers of the commissioner of labor in
enforcing the provisions of this article and the rules adopted
thereunder. The provisions of this section, however, shall apply to any
such city, town, or village sixty days after the filing with the
commissioner of labor of a duly certified copy of a resolution adopted
by its local legislative body terminating its enforcement
responsibilities.
Certificate of compliance with requirements of law. 1. The
enforcing authority shall ascertain by inspection whether places of
public assembly conform to the requirements of this article and the
rules adopted thereunder. If such places are found to so conform, he or
it shall issue a certificate of compliance to that effect. Such
certificate shall be conspicuously posted on the premises. Before any
certificate of compliance shall be issued to a place of public assembly
erected after the first day of October, nineteen hundred and twenty-two,
plans for such building shall be filed with the industrial commissioner
or with the local enforcing authority for approval, and such plans shall
not be approved unless they conform to the provisions of this article
and the rules adopted thereunder. The industrial commissioner shall not
require the filing of plans before the issuance of a certificate of
compliance for a place of public assembly erected before July first,
nineteen hundred sixty-three over which enforcement jurisdiction was
delegated to the industrial commissioner on such date, nor for a place
of public assembly which may be transferred to his jurisdiction pursuant
to paragraph (b) of section four hundred seventy-two of this article.
2. A fee not to exceed one hundred dollars shall be charged to and
collected from the owner, lessee or person conducting the place of
assembly for each inspection, but not more than two hundred dollars in
any one year shall be so charged or collected, in respect of the same
premises, except that no fee shall be charged for inspection of
buildings operated as a public place of assembly by any political
subdivision or by an agricultural society or association receiving state
aid; provided, however, that no fee shall be charged to or collected
from a volunteer fire company or an organization of veterans for the
inspection of any place of public assembly operated by such a volunteer
fire company or organization of veterans.
Posting of means of egress in places of public assembly.
There shall be posted in a conspicuous place and manner at all exits in
every place of public assembly, a printed scale floor plan of that
particular floor or story, which shall show all means of egress, clearly
labeling those exits to be used in case of fire. Said printed scale
floor plan shall be no smaller than eight inches by ten inches and shall
be posted in such a manner that it cannot be readily removed.
Revocation of certificate of compliance. No place of public
assembly shall be conducted for pecuniary gain unless a certificate of
compliance shall have been issued and conspicuously posted therein. The
enforcing authority granting the certificate of compliance may revoke
the same if premises are not maintained according to the provisions of
law and the rules adopted thereunder.
Application to New York city and other cities. This article,
except for section four hundred seventy-five, shall not apply to the
city of New York, or to other cities having a bureau of buildings which
is charged with the duty of enforcing a building code enacted by the
legislative body of such city.
Crowd control plans in certain places of public assembly. 1.
(a) For the purposes of this section places of public assembly shall be
those with an occupancy capacity of at least five thousand persons and
shall include: (i) all stadiums, ballparks, gymnasiums, fieldhouses,
arenas, civic centers and similar facilities used for the conduct of
sporting events; and (ii) concert halls, recital halls, theatres, indoor
and outdoor amphitheatres or other auditoriums used for the presentation
of musical renditions or concerts by living persons who appear in the
immediate presence of their audience and which rely primarily for effect
on the use of electronic amplification of accompaniment and principal
voice or instrument together with visual and other special effects and
whose musical renditions or concerts are represented by the performers
to be, or advertised by the management of such halls, theatres,
amphitheatres or auditoriums as, rock and/or rapp renditions or
concerts. Such places of public assembly shall include the means of
ingress thereto and egress therefrom. Places of public assembly shall
not include halls owned by churches, religious organizations, granges,
public associations, free libraries as defined by section two hundred
fifty-three of the education law, and facilities for the performance of
sporting events or rock and/or rapp musical renditions owned and used by
public and nonpublic primary and secondary schools and boards of
cooperative educational services.
(b) For the purposes of this section, operator shall include the
primary tenant of a place of public assembly or the person or persons
responsible for the operation and management of said place of public
assembly. If no operator of said place of public assembly can be
ascertained, then the owner shall be deemed the operator. In any event,
the designation of such operator of said place of public assembly shall
be included in all plans of compliance filed in accordance with this
section.
2. The operators of places of public assembly as defined in this
section shall establish a plan to be used for the purposes of crowd
control in the event of a riot. Said plan shall include and set forth
any programs mandated by section one hundred six-b of the alcoholic
beverage control law or any other requirement of such law, and
additional procedures designed to control the over-consumption of
alcoholic beverages at such places of public assembly, which operators
deem to be necessary or desirable for inclusion in the plan. Said plan
shall be filed with the New York state emergency management office as
follows: (i) with respect to places of public assembly in existence on
the effective date of this section which have been used for sporting
events or presentations described in subparagraph (ii) of paragraph (a)
of subdivision one of this section, said plan shall be filed on or
before March first, in the year next succeeding the year in which this
section shall have become a law; and (ii) with respect to places of
public assembly constructed after the effective date of this section or
with respect to existing facilities used for the first time for
presentation of sporting events or musical renditions or concerts
described in subparagraph (ii) of paragraph (a) of subdivision one of
this section, said plan shall be filed thirty days before the sporting
event or the presentation of such musical renditions or concerts so
described. Additionally, the plan shall be filed with the police and
fire departments of the locality in which such place of public assembly
is located, as well as with the state or county law enforcement agency
having the primary responsibility to respond with the local police
department in the event of an emergency. With respect to the operation
of places of public assembly by a governmental entity which provides its
own police and fire protection, plans shall be established in
consultation with the officers charged with responsibility for providing
such protection and enforcement.
3. The New York state emergency management office shall issue a report
with recommendations to the governor and the legislature relative to the
sufficiency of crowd control planning on or before March fifteenth,
nineteen hundred ninety.
4. No owner, operator, governmental entity or any employee, officer,
or agent thereof shall be liable for any claim filed by a person based
upon negligence in the preparation or filing of such plans required
under this section.
ARTICLE 18 Unemployment Insurance Law
TITLE 1 Short Title; Public Policy of State
TITLE 2 Definitions
TITLE 3 Administration
TITLE 4 Unemployment Funds
TITLE 5 Coverage
TITLE 6 Contributions to Fund
TITLE 7 Benefits and Claims
TITLE 7-A Shared Work Programs
TITLE 8 Hearings and Appeals
TITLE 9 Penalities and Misdemeanors
TITLE 10 General and Miscellaneous Provisions
ARTICLE 19 Minimum Wage Act
Statement of public policy. There are persons employed in some
occupations in the state of New York at wages insufficient to provide
adequate maintenance for themselves and their families. Such employment
impairs the health, efficiency, and well-being of the persons so
employed, constitutes unfair competition against other employers and
their employees, threatens the stability of industry, reduces the
purchasing power of employees, and requires, in many instances, that
wages be supplemented by the payment of public moneys for relief or
other public and private assistance. Employment of persons at these
insufficient rates of pay threatens the health and well-being of the
people of this state and injures the overall economy.
Accordingly, it is the declared policy of the state of New York that
such conditions be eliminated as rapidly as practicable without
substantially curtailing opportunities for employment or earning power.
To this end minimum wage standards shall be established and maintained.
Definitions. As used in this article:
1. "Commissioner" means the industrial commissioner.
2. "Department" means the labor department.
3. "Board" or "wage board" means a board created as provided in this
article.
4. "Occupation" means an industry, trade, business or class of work in
which employees are gainfully employed.
5. "Employee" includes any individual employed or permitted to work by
an employer in any occupation, but shall not include any individual who
is employed or permitted to work: (a) on a casual basis in service as a
part time baby sitter in the home of the employer; (b) in a bona fide
executive, administrative, or professional capacity; (c) as an outside
salesman; (d) as a driver engaged in operating a taxicab; (e) as a
volunteer, learner or apprentice by a corporation, unincorporated
association, community chest, fund or foundation organized and operated
exclusively for religious, charitable or educational purposes, no part
of the net earnings of which inures to the benefit of any private
shareholder or individual; (f) as a member of a religious order, or as a
duly ordained, commissioned or licensed minister, priest or rabbi, or as
a sexton, or as a christian science reader; (g) in or for such a
religious or charitable institution, which work is incidental to or in
return for charitable aid conferred upon such individual and not under
any express contract of hire; (h) in or for such a religious,
educational or charitable institution if such individual is a student;
(i) in or for such a religious, educational or charitable institution if
the earning capacity of such individual is impaired by age or by
physical or mental deficiency or injury; (j) in or for a summer camp or
conference of such a religious, educational or charitable institution
for not more than three months annually; (k) as a staff counselor in a
children's camp; (l) in or for a college or university fraternity,
sorority, student association or faculty association, no part of the net
earnings of which inures to the benefit of any private shareholder or
individual, and which is recognized by such college or university, if
such individual is a student; (m) by a federal, state or municipal
government or political subdivision thereof; (n) as a volunteer at a
recreational or amusement event run by a business that operates such
events, provided that no single such event lasts longer than eight
consecutive days and no more than one such event concerning
substantially the same subject matter occurs in any calendar year, where
(1) any such volunteer shall be at least eighteen years of age, (2) a
business seeking coverage under this paragraph shall notify every
volunteer in writing, in language acceptable to the commissioner, that
by volunteering his or her services, such volunteer is waiving his or
her right to receive the minimum wage pursuant to this article, and (3)
such notice shall be signed and dated by a representative of the
business and the volunteer and kept on file by the business for
thirty-six months; (o) in the delivery of newspapers or shopping news to
the consumer by a person who is not performing commercial goods
transportation services for a commercial goods transportation contractor
within the meaning of article twenty-five-C of this chapter; or (p)
having entered into a contract to play baseball at the minor league
level and who is compensated pursuant to the terms of a collective
bargaining agreement that expressly provides for the wages, hours of
work, and working conditions of employees. The exclusions from the term
"employee" contained in this subdivision shall be as defined by
regulations of the commissioner.
"Employee" also includes any individual employed or permitted to work
in any non-teaching capacity by a school district or board of
cooperative educational services except that the provisions of sections
six hundred fifty-three through six hundred fifty-nine of this article
shall not be applicable in any such case.
6. "Employer" includes any individual, partnership, association,
corporation, limited liability company, business trust, legal
representative, or any organized group of persons acting as employer.
7. "Wage" includes allowances, in the amount determined in accordance
with the provisions of this article, for gratuities and, when furnished
by the employer to employees, for meals, lodging, apparel, and other
such items, services and facilities.
8. "Non-profitmaking institution" means any corporation,
unincorporated association, community chest, fund or foundation
organized and operated exclusively for religious, charitable or
educational purposes, no part of the net earnings of which inure to the
benefit of any private shareholder or individual.
9. "Food service worker" means any employee primarily engaged in the
serving of food or beverages to guests, patrons or customers in the
hotel or restaurant industries, including, but not limited to, wait
staff, bartenders, captains and bussing personnel; and who regularly
receive tips from such guests, patrons or customers.
Minimum wage. 1. Statutory. Every employer shall pay to each
of its employees for each hour worked a wage of not less than:
$4.25 on and after April 1, 1991,
$5.15 on and after March 31, 2000,
$6.00 on and after January 1, 2005,
$6.75 on and after January 1, 2006,
$7.15 on and after January 1, 2007,
$8.00 on and after December 31, 2013,
$8.75 on and after December 31, 2014,
$9.00 on and after December 31, 2015, and until December 31, 2016, or,
if greater, such other wage as may be established by federal law
pursuant to 29 U.S.C. section 206 or its successors
or such other wage as may be established in accordance with the
provisions of this article.
(a) New York City. (i) Large employers. Every employer of eleven or
more employees shall pay to each of its employees for each hour worked
in the city of New York a wage of not less than:
$11.00 per hour on and after December 31, 2016,
$13.00 per hour on and after December 31, 2017,
$15.00 per hour on and after December 31, 2018, or, if greater, such
other wage as may be established by federal law pursuant to 29 U.S.C.
section 206 or its successors or such other wage as may be established
in accordance with the provisions of this article.
(ii) Small employers. Every employer of ten or less employees shall
pay to each of its employees for each hour worked in the city of New
York a wage of not less than:
$10.50 per hour on and after December 31, 2016,
$12.00 per hour on and after December 31, 2017,
$13.50 per hour on and after December 31, 2018,
$15.00 per hour on and after December 31, 2019, or, if greater, such
other wage as may be established by federal law pursuant to 29 U.S.C.
section 206 or its successors or such other wage as may be established
in accordance with the provisions of this article.
(b) Remainder of downstate. Every employer shall pay to each of its
employees for each hour worked in the counties of Nassau, Suffolk and
Westchester a wage not less than:
$10.00 per hour on and after December 31, 2016,
$11.00 per hour on and after December 31, 2017,
$12.00 per hour on and after December 31, 2018,
$13.00 per hour on and after December 31, 2019,
$14.00 per hour on and after December 31, 2020,
$15.00 per hour on and after December 31, 2021,
or, if greater, such other wage as may be established by federal law
pursuant to 29 U.S.C. section 206 or its successors or such other wage
as may be established in accordance with the provisions of this article.
(c) Remainder of state. Every employer shall pay to each of its
employees for each hour worked outside of the city of New York and the
counties of Nassau, Suffolk, and Westchester, a wage of not less than:
$9.70 on and after December 31, 2016,
$10.40 on and after December 31, 2017,
$11.10 on and after December 31, 2018,
$11.80 on and after December 31, 2019,
$12.50 on and after December 31, 2020,
and on each following December thirty-first up to and until December
31, 2022, a wage published by the commissioner on or before October
first, based on the then current minimum wage increased by a percentage
determined by the director of the budget in consultation with the
commissioner, with the result rounded to the nearest five cents,
totaling no more than fifteen dollars, where the percentage increase
shall be based on indices including, but not limited to, (i) the rate of
inflation for the most recent twelve month period ending June of that
year based on the consumer price index for all urban consumers on a
national and seasonally unadjusted basis (CPI-U), or a successor index
as calculated by the United States department of labor, (ii) the rate of
state personal income growth for the prior calendar year, or a successor
index, published by the bureau of economic analysis of the United States
department of commerce, or (iii) wage growth; or, if greater, such other
wage as may be established by federal law pursuant to 29 U.S.C. section
206 or its successors or such other wage as may be established in
accordance with the provisions of this article.
(d) The rates and schedules established in paragraphs (a) and (b) of
this subdivision shall not be deemed to be the minimum wage under this
subdivision for purposes of the calculations specified in subdivisions
one and two of section five hundred twenty-seven of this chapter.
1-a. Annual minimum wage from January 1, 2024 to December 31, 2026.
(a) New York city. Notwithstanding subdivision one of this section,
every employer regardless of size shall pay to each of its employees for
each hour worked in the city of New York a wage of not less than:
$16.00 on and after January 1, 2024,
$16.50 on and after January 1, 2025,
$17.00 on and after January 1, 2026, or, if greater, such other wage
as may be established by federal law pursuant to 29 U.S.C. section 206
or its successors or such other wage as may be established in accordance
with the provisions of this article.
(b) Remainder of downstate. Notwithstanding subdivision one of this
section, every employer shall pay to each of its employees for each hour
worked in the counties of Nassau, Suffolk, and Westchester, a wage of
not less than:
$16.00 on and after January 1, 2024,
$16.50 on and after January 1, 2025,
$17.00 on and after January 1, 2026, or, if greater, such other wage
as may be established by federal law pursuant to 29 U.S.C. section 206
or its successors or such other wage as may be established in accordance
with the provisions of this article.
(c) Remainder of state. Notwithstanding subdivision one of this
section, every employer shall pay to each of its employees for each hour
worked outside the city of New York and the counties of Nassau, Suffolk,
and Westchester, a wage of not less than:
$15.00 on and after January 1, 2024,
$15.50 on and after January 1, 2025,
$16.00 on and after January 1, 2026, or, if greater, such other wage
as may be established by federal law pursuant to 29 U.S.C. section 206
or its successors or such other wage as may be established in accordance
with the provisions of this article.
1-b. Annual minimum wage increase beginning on January first, two
thousand twenty-seven. (a) New York city. On and after January first,
two thousand twenty-seven, every employer regardless of size shall pay
to each of its employees for each hour worked in the city of New York, a
wage of not less than the adjusted minimum wage rate established
annually by the commissioner. Such adjusted minimum wage rate shall be
determined by increasing the then current year's minimum wage rate by
the rate of change in the average of the three most recent consecutive
twelve-month periods between the first of August and the thirty-first of
July, each over their preceding twelve-month periods published by the
United States department of labor non-seasonally adjusted consumer price
index for northeast region urban wage earners and clerical workers
(CPI-W) or any successor index as calculated by the United States
department of labor, with the result rounded to the nearest five cents.
(b) Remainder of downstate. On and after January first, two thousand
twenty-seven, every employer shall pay to each of its employees for each
hour worked in the counties of Nassau, Suffolk, and Westchester, a wage
of not less than the adjusted minimum wage rate established annually by
the commissioner. Such adjusted minimum wage rate shall be determined by
increasing the then current year's minimum wage rate by the rate of
change in the average of the three most recent consecutive twelve-month
periods between the first of August and the thirty-first of July, each
over their preceding twelve-month periods published by the United States
department of labor non-seasonally adjusted consumer price index for the
northeast region urban wage earners and clerical workers (CPI-W) or any
successor index as calculated by the United States department of labor,
with the result rounded to the nearest five cents.
(c) Remainder of state. On and after January first, two thousand
twenty-seven, every employer shall pay to each of its employees for each
hour worked outside of the city of New York and the counties of Nassau,
Suffolk, and Westchester a wage of not less than the adjusted minimum
wage rate established annually by the commissioner. Such adjusted
minimum wage rate shall be determined by increasing the then current
year's minimum wage rate by the rate of change in the average of the
three most recent consecutive twelve-month periods between the first of
August and the thirty-first of July, each over their preceding
twelve-month periods published by the United States department of labor
non-seasonally adjusted consumer price index for northeast region urban
wage earners and clerical workers (CPI-W) or any successor index as
calculated by the United States department of labor, with the result
rounded to the nearest five cents.
(d) Exceptions. Effective January first, two thousand twenty-seven and
thereafter, notwithstanding paragraphs (a), (b) and (c) of this
subdivision, there shall be no increase in the minimum wage in the state
for the following year if any of the following conditions are met,
provided, however, that such exception shall be limited to no more than
two consecutive years:
(i) the rate of change in the average of the most recent period of the
first of August to the thirty-first of July over the preceding period of
the first of August to the thirty-first of July published by the United
States department of labor non-seasonally adjusted consumer price index
for the northeast region urban wage earners and clerical workers
(CPI-W), or any successor index as calculated by the United States
department of labor, is negative;
(ii) the three-month moving average of the seasonally adjusted New
York state unemployment rate as determined by the U-3 measure of labor
underutilization for the most recent period ending the thirty-first of
July as calculated by the United States department of labor rises by
one-half percentage point or more relative to its low during the
previous twelve months; or
(iii) seasonally adjusted, total non-farm employment for New York
state in July, calculated by the United States department of labor,
decreased from the seasonally adjusted, total non-farm employment for
New York state in April, and seasonally adjusted, total non-farm
employment for New York state in July, calculated by the United States
department of labor, decreased from the seasonally adjusted, total
non-farm employment for New York state in January.
(e) The commissioner shall publish the adjusted minimum wage rates no
later than the first of October of each year to take effect on the
following first day of January.
2. Existing wage orders. The minimum wage orders in effect on the
effective date of this act shall remain in full force and effect, except
as modified in accordance with the provisions of this article; provided,
however, that the minimum wage order for farm workers codified at part
one hundred ninety of title twelve of the New York code of rules and
regulations in effect on January first, two thousand twenty shall be
deemed to be a wage order established and adopted under this article and
shall remain in full force and effect except as modified in accordance
with the provisions of this article or article nineteen-A of this
chapter.
Such minimum wage orders shall be modified by the commissioner to
increase all monetary amounts specified therein in the same proportion
as the increase in the hourly minimum wage as provided in subdivisions
one, one-a, and one-b of this section, including the amounts specified
in such minimum wage orders as allowances for gratuities, and when
furnished by the employer to its employees, for meals, lodging, apparel
and other such items, services and facilities. All amounts so modified
shall be rounded off to the nearest five cents. The modified orders
shall be promulgated by the commissioner without a public hearing, and
without reference to a wage board, and shall become effective on the
effective date of such increases in the minimum wage except as otherwise
provided in this subdivision, notwithstanding any other provision of
this article.
3. Non-profitmaking institutions. (a) Application of article. This
article shall apply to non-profitmaking institutions.
(b) Option available to non-profitmaking institutions. The provisions
of any wage order issued under this article shall not apply, however, to
any non-profitmaking institution which pays and continues to pay to each
of its employees in every occupation a wage, exclusive of allowances, of
not less than the minimum wage provided in subdivision one of this
section provided that such institution had certified under oath to the
commissioner, on or before September first, nineteen hundred sixty, that
on or before October first, nineteen hundred sixty it would pay and
thereafter intended to pay such wage to each of its employees in every
occupation and provided further that all the provisions of this article
have not become applicable to such institution by operation of paragraph
(c) of this subdivision. If such institution was not organized or did
not hire any employees as defined in subdivision five of section six
hundred fifty-one of this chapter before September first, nineteen
hundred sixty, such provisions shall not apply so long as, commencing
six months after it was organized, or first employed such employees it
paid and continues to pay such wage to each of its employees in every
occupation, provided that such institution certified under oath within
six months after it was organized or first employed such employees that
it would pay and thereafter intended to pay such wage to each of its
employees in every occupation and provided further that all the
provisions of this article have not become applicable to such
institution by operation of paragraph (c) of this subdivision.
(c) Termination of option. All the provisions of this article,
including all of the provisions of any wage order issued thereunder
which, but for the operation of paragraph (b) of this subdivision, would
apply to any non-profitmaking institution, shall become fully applicable
to such institution sixty days after such institution files a notice
with the commissioner requesting that the provisions of such wage order
apply to it, or immediately upon the issuance of an order by the
commissioner finding that such institution has failed to pay the wages
provided in paragraph (b) of this subdivision, but in no event shall any
such order discharge the obligation of such institution to pay the wages
provided by paragraph (b) of this subdivision for any period prior to
the issuance of such order.
4. Notwithstanding subdivisions one, one-a, one-b, and two of this
section, the wage for an employee who is a food service worker receiving
tips shall be a cash wage of at least two-thirds of the minimum wage
rates set forth in subdivision one of this section, rounded to the
nearest five cents or seven dollars and fifty cents, whichever is
higher, provided that the tips of such an employee, when added to such
cash wage, are equal to or exceed the minimum wage in effect pursuant to
subdivisions one, one-a, and one-b of this section and provided further
that no other cash wage is established pursuant to section six hundred
fifty-three of this article.
5. Notwithstanding subdivisions one, one-a, one-b, and two of this
section, meal and lodging allowances for a food service worker receiving
a cash wage pursuant to subdivision four of this section shall not
increase more than two-thirds of the increase required by subdivision
two of this section as applied to state wage orders in effect pursuant
to subdivisions one, one-a, and one-b of this section.
6. Notwithstanding subdivision one of this section, and sections six
hundred fifty-three and six hundred fifty-five of this article, on or
after January first, two thousand nineteen, and each January first
thereafter until such time as the minimum wage is fifteen dollars in all
areas of the state, the division of budget shall conduct an analysis of
the state of the economy in each region, and the effect of the minimum
wage increases listed in this section, to determine whether there should
be a temporary suspension or delay in any scheduled increases. In
conducting its analysis, the division of budget shall consult the
department, the department's division of research and statistics, the
United States department of labor, the federal reserve bank of New York
and other economic experts. The division of budget will reference
well-established economic indexes and accepted economic factors,
including those set forth in section six hundred fifty-four of this
article, to justify and explain its decision. After reviewing such
indexes and factors, the division shall determine whether scheduled
increases in the minimum wage shall continue up to and including fifteen
dollars. The division of budget will issue a report and recommendation
to the commissioner, who shall take action on that report and
recommendation pursuant to section six hundred fifty-six of this
article.
Investigation of adequacy of wages. (1) The commissioner shall
have power on his own motion to cause an investigation to be made of the
wages being paid to persons employed in any occupation or occupations to
ascertain whether the minimum wages established in accordance with the
provisions of this article are sufficient to provide adequate
maintenance and to protect the health of the persons employed in such
occupation or occupations. The commissioner shall, on the petition of
fifty or more residents of the state engaged in or affected by an
occupation or occupations sought to be investigated, cause such an
investigation of such occupation or occupations to be conducted. If, on
the basis of information in his possession with or without such an
investigation, the commissioner is of the opinion that any substantial
number of persons employed in any occupation or occupations are
receiving wages insufficient to provide adequate maintenance and to
protect their health, he shall appoint a wage board to inquire into and
report and recommend adequate minimum wages and regulations for
employees in such occupation or occupations.
(2) The commissioner shall, within six months after enactment of any
change in the statutory minimum wage set forth in subdivision one of
section six hundred fifty-two of this article, appoint a wage board to
inquire and report and recommend any changes to wage orders governing
wages payable to food service workers. Such wage board shall be
established consistent with the provisions of subdivision one of section
six hundred fifty-five of this article, except the representatives of
the employees shall be selected upon the nomination of the state
American Federation of Labor/Congress of Industrial Organizations; and
provided, further, that the representatives of the employers shall be
selected upon the nomination of the New York State Business Council. Any
wage order authorizing a lesser wage than the previously and statutorily
mandated minimum wage for such employees shall be reviewed by the wage
board to ascertain at what level such wage order is sufficient to
provide adequate maintenance and to protect the health and livelihood of
employees subject to such a wage order after a statutory increase in the
mandated minimum wage.
Basis of changes in minimum wage. In establishing minimum
wages and regulations for any occupation or occupations pursuant to the
provisions of the following sections of this article, the wage board and
the commissioner shall consider the amount sufficient to provide
adequate maintenance and to protect health and, in addition, the wage
board and the commissioner shall consider the value of the work or
classification of work performed, and the wages paid in the state for
work of like or comparable character.
Wage board; procedure; report. 1. Wage board. A wage board
shall be composed of not more than three representatives of employers,
an equal number of representatives of employees and an equal number of
persons selected from the general public. The commissioner shall
appoint the members of the board, the representatives of the employers
and employees to be selected so far as practicable from nominations
submitted by employers and employees in such occupation or occupations.
The commissioner shall designate as the chairman one of the members
selected from the general public. The members of the board shall not
receive a salary or other compensation, but shall be paid actual and
necessary traveling expenses while engaged in the performance of their
duties.
2. Organization. The chairman of the board is authorized to delegate
to a panel of the members, composed of an equal number of employer,
employee and public members, any or all of the powers which the board
itself may exercise, except as otherwise provided in subdivision four of
this section. Two-thirds of the members of the board or of a panel, as
the case may be, shall constitute a quorum. The commissioner may from
time to time formulate rules governing the manner in which the wage
board shall function and perform its duties under this article.
3. Powers. The wage board shall have power to conduct public hearings.
The board may also consult with employers and employees, and their
respective representatives, in the occupation or occupations involved,
and with such other persons, including the commissioner, as it shall
determine. The board shall also have power to administer oaths and to
require by subpoena the attendance and testimony of witnesses, and the
production of all books, records, and other evidence relative to any
matters under inquiry. Such subpoenas shall be signed and issued by the
chairman of the board, or any other public member, and shall be served
and have the same effect as if issued out of the supreme court. The
board shall have power to cause depositions of witnesses residing within
or without the state to be taken in the manner prescribed for like
depositions in civil actions in the supreme court. The board shall not
be bound by common law or statutory rules of procedure or evidence.
4. Report. Within forty-five days of the appointment of the wage board
to inquire into wages in any occupation or occupations, the board shall
(a) conduct public hearings and (b) submit to the commissioner a report,
including its recommendations as to minimum wages and regulations for
the employees in such occupation or occupations. The report and
recommendations of the board shall be submitted only after a vote of not
less than a majority of all its members in support of such report and
recommendations. No report or recommendation of a panel shall be
submitted without the prior vote of not less than a majority of all the
members of the board in support of such report or recommendation. The
commissioner may extend up to ninety days the time in which the report
shall be submitted.
5. Minimum wage recommendations. (a) The minimum wage recommended by
the wage board shall not be in excess of an amount sufficient to provide
adequate maintenance and to protect the health of the employees. In no
event, however, shall any minimum wage recommended by the board be less
than the wage specified in section six hundred fifty-two of this
chapter, except (1) as expressly otherwise provided in paragraph (c) of
this subdivision, and (2) where the board finds conditions of employment
are such as to make an hourly rate impracticable, in which event the
board may recommend a wage rate other than an hourly rate, provided that
such recommended rate carries out the purposes of this article and
safeguards the minimum wage specified in section six hundred fifty-two
of this chapter. The board may classify employments in any occupation
according to the nature of the work rendered and recommend minimum wages
in accordance with such classification. The board may also recommend a
minimum wage varying with localities if, in the judgment of the board,
conditions make such variation appropriate.
(b) In addition to recommendations for minimum wages, the wage board
may recommend such regulations as it deems appropriate to carry out the
purposes of this article and to safeguard minimum wages. Such
recommended regulations may include regulations defining the exclusions
from the term "employee" set forth in subdivision five of section six
hundred fifty-one. Such recommended regulations may also include, but
are not limited to, regulations governing piece rates, incentives, and
commissions in relation to time rates; overtime or part-time rates;
waiting time and call-in pay rates; wage rate provisions governing split
shift, excessive spread of hours and weekly guarantees; and allowances
for gratuities and, when furnished by the employer to his employees, for
meals, lodging, apparel and other such items, services and facilities.
(c) The wage board may also recommend, to the extent necessary in
order to prevent curtailment of opportunities for employment,
regulations for (1) the employment of learners and apprentices, under
special certificates issued by the commissioner, at such wages lower
than the minimum wage established by this article and subject to such
limitations as to time, number, proportion and length of service as
shall be prescribed in such regulation, (2) the employment of
individuals whose earning capacity is affected or impaired by youth or
age or by physical or mental deficiency or injury, under special
certificates issued by the commissioner, at such wages lower than the
minimum wage established by this article and for such period as shall be
prescribed in such regulation, (3) the establishment of a period not
extending beyond seventeen consecutive weeks during which a resort hotel
or camp may employ students under special certificates issued by the
commissioner, at such wages lower than the minimum wage established by
this article as shall be prescribed in such regulation, and (4) the
employment of residential employees in a non-profit making religious,
charitable or educational organization or in a non-profit making college
or university sorority or fraternity under special certificates issued
by the commissioner at such weekly wage as shall be prescribed in such
regulation.
Action by commissioner upon wage board report. When the wage
board submits its report and recommendations to the commissioner, the
commissioner shall forthwith file them with the secretary of the
department. Within five days of their receipt, the commissioner shall
publish a notice of such filing in at least ten newspapers of general
circulation in the state. Any objections to the report and
recommendations shall be filed with the commissioner within fifteen days
after such publication. The commissioner may, if he deems it
appropriate, order oral argument, which shall be scheduled before the
commissioner, or such representative as he may designate, on five days'
notice to the persons who have filed objections to the report and
recommendations. Whether or not oral argument is scheduled, the
commissioner shall by order accept or reject the board's report and
recommendations within forty-five days after filing with the secretary
of the department. The commissioner may by such order modify the
regulations recommended by the board. Such order of the commissioner
shall become effective thirty days after publication, in the manner
prescribed in this section, of a notice of such order. The commissioner
may, within such forty-five days, confer with the wage board, which may
make such changes in its report or recommendations as it may deem fit.
The commissioner also may, within such forty-five days, remand the
matter to the board for such further proceeding as he may direct.
Appeals from wage orders and regulations. 1. Finality. Any
minimum wage order and regulation issued by the commissioner pursuant to
this article shall, unless appealed from as provided in this section, be
final. The findings of the commissioner as to the facts shall be
conclusive on any appeal from an order of the commissioner issued
pursuant to sections six hundred fifty-two, six hundred fifty-six, or
six hundred fifty-nine.
2. Review by board of standards and appeals. Any person in interest,
including a labor organization or employer association, in any
occupation for which a minimum wage order or regulation has been issued
under the provisions of this article who is aggrieved by such order or
regulation may obtain review before the board of standards and appeals
by filing with said board, within forty-five days after the date of the
publication of the notice of such order or regulation, a written
petition requesting that the order or regulation be modified or set
aside. A copy of such petition shall be served promptly upon the
commissioner. On such appeal, the commissioner shall certify and file
with the board of standards and appeals a transcript of the entire
record, including the testimony and evidence upon which such order or
regulation was made and the report of the wage board. The board of
standards and appeals, upon the record certified and filed by the
commissioner, shall, after oral argument, determine whether the order or
regulation appealed from is contrary to law. Within forty-five days
after the expiration of the time for the filing of a petition, the board
of standards and appeals shall issue an order confirming, amending or
setting aside the order or regulation appealed from. The appellate
jurisdiction of the board of standards and appeals shall be exclusive
and its order final except that the same shall be subject to an appeal
taken directly to the appellate division of the supreme court, third
judicial department, within sixty days after its order is issued. The
commissioner shall be considered an aggrieved party entitled to take an
appeal from an order of the board of standards and appeals.
3. Security. The taking of an appeal by an employer to the board of
standards and appeals shall not operate as a stay of a minimum wage
order or regulation issued under this article unless and until, and only
so long as, the employer shall have provided security determined by the
board of standards and appeals in accordance with this section. The
security shall be sufficient to guarantee to the employees affected the
payment of the difference between the wage they receive and the minimum
wage they would be entitled to receive under the terms of the minimum
wage order or regulation (such difference being hereinafter referred to
as "underpayments") in the event that such order or regulation is
affirmed by the board of standards and appeals. The security shall be
either:
a. A bond filed with the board of standards and appeals issued by a
fidelity or surety company authorized to do business in this state. The
bond shall be sufficient to cover the amount of underpayments due at the
time the bond is filed with the board of standards and appeals and the
amount of underpayments that can reasonably be expected to accrue within
the following sixty days; or
b. An escrow account established by the employer in behalf of
employees and deposited in a bank or trust company in this state, of
which the employer has notified the board of standards and appeals in
writing that he has established such account. The account shall be
sufficient to cover the amount of underpayments due at the time of
notification to the board of standards and appeals and shall be kept
current by the employer depositing therein the amount of underpayments
accruing each and every pay period. Such deposits shall be made no later
than the day on which the wages for each pay period are payable. As an
alternative thereto, an employer may deposit the amount of underpayments
due at the time the deposit is made and the amount of underpayments that
can reasonably be expected to accrue within the following sixty days, as
determined by the board of standards and appeals. The employer shall
keep accurate records showing the total amount of each deposit, the
period covered, and the name and address of each employee and the amount
deposited to his account. The employees' escrow account shall be deemed
to be a trust fund for the benefit of the employees affected, and no
bank or trust company shall release funds in such account without the
written approval of the board of standards and appeals.
4. Maintenance of security. The commissioner, at the request and on
behalf of the board of standards and appeals, shall have the right to
inspect the books and records of every employer who appeals from an
order or who provides a security in accordance with subdivision eight of
this section. In the event that the board of standards and appeals finds
that the security provided by an employer is insufficient to cover the
amount of underpayments, it shall notify the employer to increase the
amount of the security. If the employer fails to increase the security
to the amount requested within seven days after such notice, the stay
shall be terminated. If the board of standards and appeals finds that
the amount of the security is excessive, it shall decrease the amount of
security required.
5. Review of determination as to security. Notwithstanding any
provision in this chapter, any determination of the board of standards
and appeals with reference to subdivisions three and four of this
section shall be reviewable only by a special proceeding under article
seventy-eight of the civil practice law and rules instituted in the
supreme court in the third judicial district within ten days after such
determination.
6. Security on court review. In the event that an appeal is taken from
the order of the board of standards and appeals to the supreme court in
the third judicial district pursuant to subdivision two of this section,
the court may continue the security in effect or require such security
as it deems proper.
7. Waiver of security. Notwithstanding any provision in this section,
the board of standards and appeals may, in its discretion, waive the
requirement of a security for an employer who the board of standards and
appeals finds is of such financial responsibility that payments to
employees of any underpayments due or to accrue are assured without the
security provided by this section.
8. Stay for other employers. Any employer affected by a minimum wage
order or regulation from which an appeal has been taken by another
employer to the board of standards and appeals or to the supreme court
in the third judicial district, may obtain a stay of proceedings against
him by providing a security in accordance with subdivisions three and
four of this section within thirty days after the filing of the appeal
by the other employer.
Appeals from compliance orders. An appeal pursuant to section
two hundred eighteen or two hundred nineteen of this chapter from an
order issued by the commissioner directing compliance with any provision
of this article or with any minimum wage order or regulation promulgated
thereunder, shall not bring under review any minimum wage order or
regulation promulgated under this article. The provisions of subdivision
two of section six hundred fifty-seven relating to appeals from
determinations of the board and the provisions of subdivisions three
through seven of section six hundred fifty-seven shall apply to an
appeal from a compliance order.
Reconsideration of wage orders and regulations. 1. By wage
board. At any time after a minimum wage order has been in effect for six
months or more, the commissioner, on his own motion or on a petition of
fifty or more residents of the state engaged in or affected by the
occupation or occupations to which an order is applicable, may reconvene
the same wage board or appoint a new wage board to recommend whether or
not the minimum wage and regulations prescribed by such order should be
modified, and the provisions of section six hundred fifty-five through
six hundred fifty-seven shall thereafter apply.
2. By commissioner. The commissioner, without referral to the wage
board, may, at any time after public hearing, by order propose such
modifications of or additions to any regulations as he may deem
appropriate to effectuate the purposes of this article. Notice of
hearing and promulgation of any such order shall be published in
accordance with the provisions contained in section six hundred
fifty-six. Such order shall be effective thirty days after such
publication and section six hundred fifty-seven shall thereafter apply.
Commissioner's powers of investigation. The commissioner or his
authorized representative shall have power: (a) to investigate the wages
of persons in any occupation in the state; (b) to enter the place of
business or employment of any employer for the purpose of (1) examining
and inspecting any and all books, registers, payrolls and other records
that in any way relate to or have a bearing upon the wages paid to, or
the hours worked by any employees, (2) ascertaining whether the
provisions of this article and the orders and regulations promulgated
hereunder are being complied with; and (c) to require from any employer
full and correct statements and reports in writing, at such times as the
commissioner may deem necessary, of the wages paid to and the hours
worked by his employees.
Records of employers. For all employees covered by this
article, every employer shall establish, maintain, and preserve for not
less than six years contemporaneous, true, and accurate payroll records
showing for each week worked the hours worked, the rate or rates of pay
and basis thereof, whether paid by the hour, shift, day, week, salary,
piece, commission, or other basis; gross wages; deductions; allowances,
if any, claimed as part of the minimum wage; and net wages for each
employee, plus such other information as the commissioner deems material
and necessary. For all employees who are not exempt from overtime
compensation as established in the commissioner's minimum wage orders or
otherwise provided by New York state law or regulation, the payroll
records must include the regular hourly rate or rates of pay, the
overtime rate or rates of pay, the number of regular hours worked, and
the number of overtime hours worked. For all employees paid a piece
rate, the payroll records shall include the applicable piece rate or
rates of pay and number of pieces completed at each piece rate. On
demand, the employer shall furnish to the commissioner or his duly
authorized representative a sworn statement of the hours worked, rate or
rates of pay and basis thereof, whether paid by the hour, shift, day,
week, salary, piece, commission, or other basis; gross wages;
deductions; and allowances, if any, claimed as part of the minimum wage,
for each employee, plus such other information as the commissioner deems
material and necessary. Every employer shall keep such records open to
inspection by the commissioner or his duly authorized representative at
any reasonable time. Every employer of an employee shall keep a digest
and summary of this article or applicable wage order, which shall be
prepared by the commissioner, posted in a conspicuous place in his
establishment and shall also keep posted such additional copies of said
digest and summary as the commissioner prescribes. Employers shall, on
request, be furnished with copies of this article and of orders, and of
digests and summaries thereof, without charge. Employers shall permit
the commissioner or his duly authorized representative to question
without interference any employee of such employer in a private location
at the place of employment and during working hours in respect to the
wages paid to and the hours worked by such employee or other employees.
Penalties. 1. Failure to pay minimum wage or overtime
compensation. Any employer or his or her agent, or the officer or agent
of any corporation, partnership, or limited liability company, who pays
or agrees to pay to any employee less than the wage applicable under
this article shall be guilty of a misdemeanor and upon conviction
therefor shall be fined not less than five hundred nor more than twenty
thousand dollars or imprisoned for not more than one year, and, in the
event that any second or subsequent offense occurs within six years of
the date of conviction for a prior offense, shall be guilty of a felony
for the second or subsequent offense, and upon conviction therefor,
shall be fined not less than five hundred nor more than twenty thousand
dollars or imprisoned for not more than one year plus one day, or
punished by both such fine and imprisonment, for each such offense. Each
payment to any employee in any week of less than the wage applicable
under this article shall constitute a separate offense.
2. Failure to keep records. Any employer or his or her agent, or the
officer or agent of any corporation, partnership, or limited liability
company, who fails to keep the records required under this article or to
furnish such records or any information required to be furnished under
this article to the commissioner or his or her authorized representative
upon request, or who hinders or delays the commissioner or his or her
authorized representative in the performance of his or her duties in the
enforcement of this article, or refuses to admit the commissioner or his
or her authorized representative to any place of employment, or
falsifies any such records or refuses to make such records accessible to
the commissioner or his or her authorized representative, or refuses to
furnish a sworn statement of such records or any other information
required for the proper enforcement of this article to the commissioner
or his or her authorized representative, shall be guilty of a
misdemeanor and upon conviction therefor shall be fined not less than
five hundred nor more than five thousand dollars or imprisoned for not
more than one year, and, in the event that any second or subsequent
offense occurs within six years of the date of conviction for a prior
offense, shall be guilty of a felony for the second or subsequent
offense, and upon conviction therefor, shall be fined not less than five
hundred nor more than twenty thousand dollars or imprisoned for not more
than one year plus one day, or punished by both such fine and
imprisonment, for each such offense. Each day's failure to keep the
records requested under this article or to furnish such records or
information to the commissioner or his or her authorized representative
shall constitute a separate offense.
Civil action. 1. By employee. If any employee is paid by his or
her employer less than the wage to which he or she is entitled under the
provisions of this article, he or she shall recover in a civil action
the amount of any such underpayments, together with costs all reasonable
attorney's fees, prejudgment interest as required under the civil
practice law and rules, and unless the employer proves a good faith
basis to believe that its underpayment of wages was in compliance with
the law, an additional amount as liquidated damages equal to one hundred
percent of the total of such underpayments found to be due. Any
agreement between the employee, and the employer to work for less than
such wage shall be no defense to such action.
2. By commissioner. On behalf of any employee paid less than the wage
to which the employee is entitled under the provisions of this article,
the commissioner may bring any legal action necessary, including
administrative action, to collect such claim, and the employer shall be
required to pay the full amount of the underpayment, plus costs, and
unless the employer proves a good faith basis to believe that its
underpayment was in compliance with the law, an additional amount as
liquidated damages. Liquidated damages shall be calculated by the
commissioner as no more than one hundred percent of the total amount of
underpayments found to be due the employee. In any action brought by the
commissioner in a court of competent jurisdiction, liquidated damages
shall be calculated as an amount equal to one hundred percent of
underpayments found to be due the employee.
3. Limitation of time. Notwithstanding any other provision of law, an
action to recover upon a liability imposed by this article must be
commenced within six years. The statute of limitations shall be tolled
from the date an employee files a complaint with the commissioner or the
commissioner commences an investigation, whichever is earlier, until an
order to comply issued by the commissioner becomes final, or where the
commissioner does not issue an order, until the date on which the
commissioner notifies the complainant that the investigation has
concluded. Investigation by the commissioner shall not be a prerequisite
to nor a bar against a person bringing a civil action under this
article.
4. Attorneys' fees. In any civil action by an employee or by the
commissioner, the employee or commissioner shall have the right to
collect attorneys' fees and costs incurred in enforcing any court
judgment. Any judgment or court order awarding remedies under this
section shall provide that if any amounts remain unpaid upon the
expiration of ninety days following issuance of judgment, or ninety days
after expiration of the time to appeal and no appeal therefrom is then
pending, whichever is later, the total amount of judgment shall
automatically increase by fifteen percent.
Referrals by employment agencies. No employment agency shall
place or attempt to place any employee in an occupation at less than the
wage applicable to such occupation under this article.
The term "employment agency" as used in this section shall mean an
employment agency as defined in section one hundred seventy-one of the
general business law.
Savings clause. If any provision of this article or the
application thereof to any person, employer, occupation or circumstance
is held invalid, the remainder of the article and the application of
such provision to other persons, employees, occupations, or
circumstances shall not be affected thereby.
ARTICLE 19-A Minimum Wage Standards and Protective Labor Practices For Farm Workers
Statement of public policy; findings. The legislature of the
state of New York declares that it is the public policy of the state and
the purpose of this act that minimum wage standards shall apply to farm
workers, so as to eliminate as rapidly as practicable the employment of
farm workers at wages insufficient to provide adequate maintenance and
protection of health, without substantially curtailing opportunities for
employment or earning power.
The legislature hereby finds that the establishment of minimum wage
standards for farm laborers involves distinct and unusual problems; that
the agricultural labor force is made up of regular all-year workers as
well as short-term seasonal workers; that although some workers are paid
on an hourly basis, many are paid on a piecework, weekly, monthly, or
other basis; and that the agricultural industry is particularly affected
by weather and market conditions and by perishability of products.
Accordingly, the legislature further declares that it is the purpose of
this act to provide a flexible approach with full consideration of the
unusual problems involved.
Definitions. As used in this article: 1. "Farm" includes stock,
dairy, poultry, furbearing animal, fruit and truck farms, plantations,
orchards, nurseries, greenhouses, or other similar structures, used
primarily for the raising of agricultural or horticultural commodities.
2. "Employee" includes any individual employed or permitted to work by
an employer on a farm but shall not include: (a) domestic service in the
home of the employer; (b) the parent, spouse, child or other member of
the employer's immediate family; (c) a minor under seventeen years of
age employed as a hand harvest worker on the same farm as his parent or
guardian and who is paid on a piece-rate basis at the same piece rate as
employees seventeen years of age or over; or (d) an individual employed
or permitted to work for a federal, state, or a municipal government or
political subdivision thereof.
3. "Employer" includes any individual, partnership, association,
corporation, cooperative, business trust, legal representative, or any
organized group of persons acting as an employer of an individual
employed or permitted to work on a farm. If a farm labor contractor
recruits or supplies farm workers for work on a farm, such farm workers
shall, for the purposes of this article, be deemed to be employees of
the owner, lessee or operator of such farm.
4. "Farm labor contractor" includes: a. Any person who, for a fee,
recruits, transports, supplies, or hires farm or food processing workers
to work for, or under the direction, supervision, or control of, a third
person; or
b. Any person who recruits, transports, supplies, or hires farm or
food processing workers and who, for a fee, directs, supervises or
controls all or any part of the work of such workers. "Fee" includes any
money or other valuable consideration paid or promised to be paid to a
farm labor contractor for the performance of any of the services
enumerated in this definition. The term "farm labor contractor" shall
not include an employment agency licensed in accordance with the
provisions of article eleven of the general business law.
5. "Wage" includes allowances in the amount determined in accordance
with the provisions of this article for meals, lodging, and other items,
service and facilities when furnished by the employer to his employees.
6. "Hours worked" means the time that a farm worker is permitted to
work in the fields or at his assigned place of work, and shall include
time spent on a single farm in going from one field to another, or in
waiting for baskets, pick-up, or for similar purposes; provided,
however, that time not worked because of weather conditions shall not be
considered as hours worked.
7. "Work agreement" means a job service recruitment or placement
order; a farm labor contract or migrant labor registration; an
agricultural employment contract executed by the employer or its
representative with the Commonwealth of Puerto Rico or with the
representatives of a foreign government; an agreement voluntarily
entered into by the employer and the worker; or any comparable
agreement.
Application of article. This article shall apply to every
employer during any part of the twelve consecutive months beginning
February first, nineteen hundred seventy and February first of each
subsequent year, preceded by a calendar year in which the cash
remuneration paid to all employees aggregated twelve hundred dollars or
more, provided, however, that one hundred eighty days after this act
shall take effect this article shall apply to every employer if in the
previous calendar year the cash remuneration paid to all employees
aggregated two thousand dollars or more and on July first, nineteen
hundred eighty-four this article shall apply to every employer if in the
previous calendar year the cash remuneration paid to all employees
aggregated three thousand dollars or more.
Minimum wage. 1. Statutory. Every employer shall pay to each of
its employees for each hour worked a wage of not less than the wage
established pursuant to subdivision one of section six hundred fifty-two
of this chapter, or such other wage as may be established in accordance
with the provisions of this article.
2. Existing wage order. The minimum wage order in effect on the
effective date of this act shall remain in full force and effect, except
as modified in accordance with the provisions of this article.
Farm workers; mandatory work agreements. Notwithstanding the
provisions of any general, special or local law, rule or regulation to
the contrary, for the purpose of notifying each employee, in writing, of
the conditions of employment every employer shall utilize the farm work
agreement prescribed by the commissioner.
Regulations. 1. The commissioner may promulgate such
regulations as he deems appropriate to carry out the purposes of this
article and to safeguard minimum wage standards. Such regulations may
include, but are not limited to, the defining of the circumstances or
conditions for the acceptance of non-hourly rates and piece rates as
equivalent to the minimum hourly rates established by this article. Such
regulations also may include, but are not limited to, waiting time and
call-in pay rates; wage provisions governing guaranteed earnings during
specified periods of work; allowances for meals, lodging, and other
items, services and facilities when furnished by the employer; or by
physical or mental deficiency or injury, under special certificates
issued by the commissioner, at such wages lower than the minimum wage
established by this article and for such period as shall be prescribed
in such regulations.
2. Such regulations may vary with localities if in the judgment of the
commissioner conditions make such variation appropriate.
3. Such regulations shall be promulgated by the commissioner after a
public hearing held after due notice.
A notice of the public hearing and a notice of the promulgation of any
such regulation shall be published in the state bulletin. The notice of
the promulgation of any such regulation shall be published at least
twenty days before the effective date of the regulation.
Farm laborers wage board. 1. Wage board. The commissioner
shall hereby convene a farm laborers wage board. The wage board shall be
comprised of three members: one representative of the farm bureau, one
representative of the New York State AFL-CIO and one member appointed by
the commissioner, who shall be selected from the general public and
designated as chairperson. The wage board shall hold its first hearing
no later than March first, two thousand twenty. The members of the board
shall not receive a salary or other compensation, but shall be paid
actual and necessary traveling expenses while engaged in the performance
of their duties.
2. Organization. Two-thirds of the members of the board shall
constitute a quorum. The chairperson may from time to time formulate
rules governing the manner in which the wage board shall function and
perform its duties under this article.
3. Powers. The wage board shall have power to conduct public hearings.
The board may also consult with agricultural employers and farm
laborers, and their respective representatives, in the occupation or
occupations involved, and with such other persons, including the
commissioner and the commissioner of agriculture and markets, as it
shall determine. The board shall also have power to administer oaths and
to require by subpoena the attendance and testimony of witnesses, and
the production of all books, records, and other evidence relative to any
matters under inquiry. Such subpoenas shall be signed and issued by the
chairperson of the board and shall be served and have the same effect as
if issued out of the supreme court. The board shall have power to cause
depositions of witnesses residing within or without the state to be
taken in the manner prescribed for like depositions in civil actions in
the supreme court. The board shall not be bound by common law or
statutory rules of procedure or evidence.
4. Public hearings. Within forty-five days of the appointment of the
wage board, the board shall conduct public hearings. The wage board
shall only meet within the state and must hold at least three hearings
at which the public will be afforded an opportunity to provide comments.
At least one Spanish language interpreter shall be present at each
public hearing to interpret oral testimony delivered in Spanish. Where a
witness reveals the need for an interpreter in a language other than
Spanish, to the extent practicable, an interpreter in that language
shall be provided. Any materials advertising such hearings shall be
bilingual in English and Spanish. Any written materials disbursed at the
hearing or subsequent to the hearing, including written testimony and
hearing transcripts, shall be available in English, Spanish, and, to the
extent practicable, any other language upon request.
5. Report. The wage board shall make a report to the governor and the
legislature, including its recommendations as to overtime work for farm
laborers. The report and recommendations of the board shall be submitted
only after a vote of not less than a majority of all its members in
support of such report and recommendations. Such report shall be
submitted no later than December thirty-first, two thousand twenty. The
overtime rates recommended by the wage board shall not be in excess of
sixty hours, and the wage board shall specifically consider the extent
to which overtime hours can be lowered below such amount set in law, and
may provide for a series of successively lower overtime work thresholds
and phase-in dates as part of its determinations.
6. The wage board shall consider existing overtime rates in similarly
situated industries in New York state. Nothing contained in the wage
board's report or recommendations shall diminish or limit any rights,
protections, benefits or entitlements currently available to any farm
laborer.
7. The commissioner shall comply with section six hundred fifty-six of
this chapter upon receipt of the wage board's recommendations. The
commissioner may reconvene the same wage board or appoint a new wage
board in compliance with section six hundred fifty-nine of this chapter.
Appeals from regulations. 1. Finality. Any regulation issued
by the commissioner pursuant to this article shall, unless appealed from
as provided in this section, be final. The findings of the commissioner
as to the facts shall be conclusive.
2. Review by board of standards and appeals. Any person in interest,
including a labor organization or employer association, who is aggrieved
by such regulation may obtain review before the board of standards and
appeals by filing with said board, within forty-five days after the date
of the publication of the notice of such regulation, a written petition
requesting that the regulation be modified or set aside. A copy of such
petition shall be served promptly upon the commissioner. On such appeal,
the commissioner shall certify and file with the board of standards and
appeals a transcript of the entire record, including the testimony and
evidence upon which such regulation was made. The board of standards and
appeals, upon the record certified and filed by the commissioner, shall,
after oral argument, determine whether the regulation appealed from is
contrary to law. Within forty-five days after the expiration of the time
for the filing of a petition, the board of standards and appeals shall
issue an order confirming, amending or setting aside the regulation
appealed from. The appellate jurisdiction of the board of standards and
appeals shall be exclusive and its order final except that the same
shall be subject to an appeal taken directly to the appellate division
of the supreme court, third judicial department, within sixty days after
its order is issued. The commissioner shall be considered an aggrieved
party entitled to take an appeal from an order of the board of standards
and appeals.
3. Security. The taking of an appeal by an employer to the board of
standards and appeals shall not operate as a stay of a minimum wage
regulation issued under this article unless and until, and only so long
as, the employer shall have provided security determined by the board of
standards and appeals in accordance with this section. The security
shall be sufficient to guarantee to the employees affected the payment
of the difference between the wage they receive and the minimum wage
they would be entitled to receive under the terms of the minimum wage
regulation (such difference being hereinafter referred to as
"underpayments") in the event that such regulation is affirmed by the
board of standards and appeals. The security shall be either:
a. A bond filed with the board of standards and appeals issued by a
fidelity or surety company authorized to do business in this state. The
bond shall be sufficient to cover the amount of underpayments due at the
time the bond is filed with the board of standards and appeals and the
amount of underpayments that can reasonably be expected to accrue within
the following sixty days; or
b. An escrow account established by the employer in behalf of
employees and, deposited in a bank or trust company in this state, of
which the employer has notified the board of standards and appeals in
writing that he has established such account. The account shall be
sufficient to cover the amount of underpayments due at the time of
notification to the board of standards and appeals and shall be kept
current by the employer depositing therein the amount of underpayments
accruing each and every pay period. Such deposits shall be made no later
than the day on which the wages for each pay period are payable. As an
alternative thereto, an employer may deposit the amount of underpayments
due at the time the deposit is made and the amount of underpayments that
can reasonably be expected to accrue within the following sixty days, as
determined by the board of standards and appeals. The employer shall
keep accurate records showing the total amount of each deposit, the
period covered, and the name and address of each employee and the amount
deposited to his account. The employees escrow account shall be deemed
to be a trust fund for the benefit of the employees affected, and no
bank or trust company shall release funds in such account without the
written approval of the board of standards and appeals.
4. Maintenance of security. The commissioner, at the request and on
behalf of the board of standards and appeals, shall have the right to
inspect the books and records of every employer who appeals or who
provides a security in accordance with subdivision eight of this
section. In the event that the board of standards and appeals finds that
the security provided by an employer is insufficient to cover the amount
of underpayments, it shall notify the employer to increase the amount of
the security. If the employer fails to increase the security of the
amount requested within seven days after such notice, the stay shall be
terminated. If the board of standards and appeals finds that the amount
of the security is excessive, it shall decrease the amount of security
required.
5. Review of determination as to security. Notwithstanding any
provision in this chapter, any determination of the board of standards
and appeals with reference to subdivisions three and four of this
section shall be reviewable only by a special proceeding under article
seventy-eight of the civil practice law and rules instituted in the
supreme court in the third judicial district within ten days after such
determination.
6. Security on court review. In the event that an appeal is taken from
the order of the board of standards and appeals to the supreme court in
the third judicial district pursuant to subdivision two of this section,
the court may continue the security in effect or require such security
as it deems proper.
7. Waiver of security. Notwithstanding any provision in this section,
the board of standards and appeals may, in its discretion, waive the
requirement of a security for an employer who the board of standards and
appeals finds is of such financial responsibility that payments to
employees of any underpayments due or to accrue are assured without the
security provided by this section.
8. Stay for other employers. Any employer affected by a minimum wage
regulation from which an appeal has been taken by another employer to
the board of standards and appeals or to the supreme court in the third
judicial district, may obtain a stay of proceedings against him by
providing a security in accordance with subdivisions three and four of
this section within thirty days after the filing of the appeal by the
other employer.
Appeals from compliance orders. Within sixty days after the
issuance by the commissioner of an order to comply with any provision of
this article or with any minimum wage regulation promulgated thereunder,
any person aggrieved may appeal questions of law and fact involved in
such order to the board of standards and appeals by filing with said
board a written petition in accordance with such rules as the board
shall prescribe, provided, however, that no such appeal shall bring
under review any minimum wage regulation promulgated under this article.
The provisions of subdivision two of section six hundred seventy-six
relating to appeals from determinations of the board and the provisions
of subdivisions three through seven of section six hundred seventy-six
shall apply to appeals such as herein provided. Unless an appeal such as
herein provided is taken within the prescribed time, the findings of
fact and conclusions of law contained in such order to comply shall be
final and binding and no board or court shall have jurisdiction to
review such order, or finding or conclusion contained therein, or to
restrain or interfere with its enforcement.
Commissioner's powers of investigation. The commissioner or
his authorized representative shall have power: (a) to investigate the
wages of persons employed on a farm; (b) to enter the place of business
or employment of any employer for the purpose of (1) examining and
inspecting any and all books, registers, payrolls and other records that
in any way relate to or have a bearing upon the wages paid to, or the
hours worked by any employee, (2) ascertaining whether the provisions of
this article and the regulations promulgated hereunder are being
complied with; and (c) to require from any employer full and correct
statements and reports in writing of the records required by this
article, at such times as the commissioner may deem necessary.
Records of employers. Every employer shall keep true and
accurate records of hours worked by each employee, the wages paid, and
such other information as the commissioner deems material and necessary,
and shall, on demand, furnish to the commissioner or his duly authorized
representative a sworn statement of the same. Every employer shall keep
such records open to inspection by the commissioner or his duly
authorized representative at any reasonable time. Every employer of an
employee shall keep a digest or summary of this article and regulations,
which shall be prepared by the commissioner, posted in a conspicuous
place in his establishment and shall also keep posted such additional
copies of said digest or summary as the commissioner prescribes.
Employers shall, on request, be furnished with copies of this article
and regulations, and of digests or summaries thereof, without charge.
Employers shall permit the commissioner or his duly authorized
representative to question any individual employed by such employer in
the place of employment and during working hours in respect to the wages
paid and the hours worked when records of hours worked are required
under this article.
Penalties. 1. Discrimination against employee. Any employer or
his agent, or the officer or agent of any corporation, who discharges or
in any other manner discriminates against any employee because such
employee has made a complaint to his employer, or to the commissioner or
his authorized representative, that he has not been paid in accordance
with the provisions of this article, or because such employee has caused
to be instituted a proceeding under or related to this article, or
because such employee has testified or is about to testify in an
investigation or proceeding under this article, shall be guilty of a
misdemeanor and upon conviction be punished by a fine of not less than
fifty dollars nor more than five hundred dollars.
2. Payment of less than minimum wage. Any employer or his agent, or
the officer or agent of any corporation, who pays or agrees to pay to
any employee less than the wage applicable under this article shall be
guilty of a misdemeanor and upon conviction be punished by a fine of not
less than fifty dollars nor more than five hundred dollars or by
imprisonment of not less than ten nor more than ninety days or by both
such fine and imprisonment, and each payment to any employee in any week
of less than the wage applicable under this article shall constitute a
separate offense.
3. Failure to keep records. Any employer or his agent, or the officer
or agent of any corporation, who fails to keep the records required
under this article or to furnish such records or any information
required to be furnished under this article to the commissioner or his
authorized representative upon request, or who hinders or delays the
commissioner or his authorized representative in the performance of his
duties in the enforcement of this article, or refuses to admit the
commissioner or his authorized representative to any place of
employment, or falsifies any such records or refuses to make such
records accessible to the commissioner or his authorized representative,
or refuses to furnish a sworn statement of such records or any other
information required for the proper enforcement of this article to the
commissioner or his authorized representative, shall be guilty of a
misdemeanor and upon conviction be punished by a fine of not less than
fifty dollars nor more than five hundred dollars, and each day's failure
to keep the records required under this article or to furnish such
records or information to the commissioner or his authorized
representative shall constitute a separate offense.
Civil action. 1. By employee. If any employee is paid by his
employer less than the wage to which he is entitled under the provisions
of this article, he may recover in a civil action the amount of any such
underpayments, together with costs and such reasonable attorney's fees
as may be allowed by the court, and if such underpayment was willful, an
additional amount as liquidated damages equal to twenty-five percent of
the total of such underpayment found to be due him and any agreement
between him and his employer to work for less than such wage shall be no
defense to such action.
2. By commissioner. On behalf of any employee paid less than the wage
to which he is entitled under the provisions of this article, the
commissioner may bring any legal action necessary to collect such claim,
and the employer shall be required to pay the costs and if such
underpayment was willful, an additional amount as liquidated damages
equal to twenty-five percent of the total of such underpayments found to
be due him.
3. Limitation of time. Notwithstanding any other provision of law, an
action to recover upon a liability imposed by this article must be
commenced within six years.
Referrals by employment agencies. No employment agency shall
place or attempt to place any employee in an occupation at less than the
wage applicable to such occupation under this article.
The term "employment agency" as used in this section shall mean an
employment agency as defined in section one hundred seventy-one of the
general business law.
Savings clause. If any portion of this article or the
application thereof to any person, employer, occupation or circumstance
is held invalid, the remainder of the article and the application of
such provision to other persons, employees, occupations, or
circumstances shall not be affected thereby.
ARTICLE 19-B Domestic Workers and Household Employees
Application. The provisions of this article shall apply to all
employment agencies, under the authority of this chapter and as defined
in section one hundred seventy-one of the general business law, which
arrange employment for domestic or household employees.
Statement of employee rights and employer obligations under
state and federal law. 1. Every licensed employment agency under the
jurisdiction of the commissioner and engaged in the job placement of
domestic workers or household employees shall provide to each applicant
for employment as a domestic worker or household employee and his or her
prospective employer, before job placement is arranged, a written
statement indicating the rights of such worker and employee and the
obligations of his or her employer under state and federal law. In the
event any such licensed employment agency maintains a website, the text
of such written statement shall also be provided on the agency's
website. The department shall promulgate rules and regulations detailing
what information should be included in such written statement. Such
rules and regulations shall require that such statement of rights and
obligations embody provisions of state and federal laws that pertain to
domestic workers or household employees, both in their capacity as
workers and employees in New York state and the United States and in
their capacity specifically as domestic workers or household employees
in New York state and the United States. Such statement of rights and
obligations shall include, but not be limited to, a general description
of employee rights and employer obligations pursuant to laws regarding
minimum wage, overtime and hours of work, record keeping, social
security payments, unemployment insurance coverage, disability insurance
coverage and workers' compensation. Every licensed employment agency
under the jurisdiction of the commissioner and to which this article
applies shall certify that the written statement required by this
subdivision conforms to rules and regulations promulgated by the
department and shall file a copy of such written statement with the
department.
2. Every employment agency engaged in the job placement of domestic
workers or household employees shall keep on file in its principal place
of business for a period of three years a statement, signed by the
employer of a domestic worker or household employee whom the employment
agency has placed with such employer, indicating that the employer has
read and understands the statement of rights and obligations he or she
received pursuant to subdivision one of this section.
Statement of job conditions; records. 1. Every licensed
employment agency under the jurisdiction of the commissioner and engaged
in the job placement of domestic workers or household employees shall
provide to each applicant for employment as a domestic worker or
household employee a written statement, in a form approved by the
commissioner, of the job conditions of each potential employment
position to which the agency recommends that the applicant apply. Each
such statement shall fully and accurately describe the nature and terms
of employment, including the name and address of the person to whom the
applicant is to apply for such employment, the name and address of the
person authorizing the hiring for such position, wages, hours of work,
the kind of services to be performed and agency fee.
2. Every employment agency engaged in the job placement of domestic
workers or household employees shall keep on file in its principal place
of business for a period of three years a duplicate copy of the written
statement of job conditions required by subdivision one of this section.
Enforcement. The commissioner, or his or her duly authorized
agent or inspector, is authorized pursuant to section one hundred
eighty-nine of the general business law to implement and carry out the
requirements of this article.
Violations. Any person who violates, and the officers of a
corporation and stockholders holding ten percent or more of the stock of
a corporation which is not publicly traded who knowingly permit the
corporation to violate, subdivisions one and two of sections six hundred
ninety-one and six hundred ninety-two of this article shall be guilty of
a misdemeanor and upon conviction shall be subject to a fine not to
exceed one thousand dollars, or imprisonment for not more than one year,
or both, by any court of competent jurisdiction. Criminal proceedings
based upon violation of such sections may be instituted by the
commissioner and/or any persons aggrieved by such violations.
ARTICLE 19-C Representation of Child Care Providers
Statement of public policy; findings. The legislature
declares that it is the public policy of the state and the purpose of
this act to create a framework for child care providers to secure
representation to help improve the environment in which they work.
The legislature hereby finds child care providers perform an essential
service for working parents and guardians in this state by creating a
safe, educational and enjoyable home-like environment for their
children. Many of New York's children spend a significant part of their
crucial early years of development under the supervision of child care
providers. It is in the best interest of New York state to maintain a
child care delivery system that fosters quality child care options and
compensation, and benefits and working conditions for child care
providers commensurate with the value of the work they perform.
Accordingly child care providers are hereby given the option to
organize themselves and select representatives for the purpose of
discussing with the state the conditions of their employment, the
stability of funding and operations of child care programs and the
expansion of quality child care.
Definitions. As used in this article, "child care provider"
shall mean:
1. An operator of a group family day care home as defined in paragraph
(d) of subdivision one of section three hundred ninety of the social
services law or
2. A family day care home as defined in paragraph (c) of subdivision
one of section three hundred ninety of the social services law or
3. An individual providing child care in reference to one or more
children who are receiving child care assistance under title five-c of
article six of the social services law under circumstances where the
individual is not required to be licensed or registered under section
three hundred ninety of the social services law or to be licensed under
the administrative code of the city of New York.
Representation units. For purposes of this article only, New
York's child care providers shall be divided into four representation
units as follows:
1. All child care providers in New York city who are paid from funds
administered by New York city pursuant to section four hundred ten-u of
the social services law.
2. All registered or licensed child care providers in New York city
who are not paid from funds administered by New York city pursuant to
section four hundred ten-u of the social services law.
3. All registered or licensed child care providers outside the city of
New York and
4. All child care providers outside New York city who provide child
care in a residence to one or more children who are receiving child care
assistance under title 5-c of article six of the social services law
under circumstances where the individual is not required to be licensed
or registered under section three hundred ninety of the social services
law.
Procedure for recognition. 1. For the purpose of this
article, New York state shall recognize as the representative of the
child care providers in any unit set forth in section six hundred
ninety-five-c of this article each representative as is designated by a
majority of the providers in the unit pursuant to the following
procedure: A perspective representative may demonstrate majority
designation upon submission of authorization cards, approved within
twelve months of this submission, by the majority of providers in the
unit, to the state employment relations board (SERB) or any successor
agency for the purpose of review. The SERB and/or its designee shall
review the cards and if it determines that the cards constitute at least
fifty percent plus one of the providers in the unit at issue, then the
SERB shall certify the party making application as the designated
representative of the unit. If the SERB determines that cards submitted
constitute at least thirty percent of providers in the unit at issue,
but not more than fifty percent, it shall conduct an election in a
manner directed by the SERB and consistent with its standard election
procedure to determine if a majority of members designate the
prospective representative.
2. Any relevant state agency, including the office of children and
family services shall provide the SERB with information necessary to
determine the size of the units and the identities of members of said
unit subject to any limitations or dissemination of information as the
agency believes necessary to protect confidentiality, or as otherwise
required by law.
Challenges. Any party seeking to challenge the status of a
unit representative may submit information to the SERB. The SERB shall
determine whether the information provides a reasonable basis to
constitute that a majority of the unit wishes to be represented by a
different representative or a majority of the unit decides no
representation. If the SERB so determines, it shall adopt a process it
believes warranted to ascertain the majority's choice of representation,
including by the submission of authorization cards or election, unless
such process has been undertaken in the previous two years.
Application of this article. 1. The office of children and
family services shall meet with the designated representative of those
units of child care providers, either jointly or separately, for the
purpose of entering into a written agreement to the extent feasible. The
agreement may address the stability, funding and operation of child care
programs, expansion of quality child care, improvement of working
conditions, salaries and benefits and payment for child care providers.
If issues under discussion require the participation and/or approval of
other state agencies, those agencies shall participate in the
discussions. Nothing herein shall require that an agreement be reached
on any matters described above.
2. In the event an agreement is reached, it shall be embodied in
writing between the office of children and family services and other
affected agencies and the designated representative. The agreement shall
be binding on the state, contingent upon any regulatory or legislative
action that may be required.
3. If legislative or regulatory action or appropriation of funds is
required the parties will jointly seek such action.
Legal effect. Nothing herein shall:
1. Permit child care providers collectively the right to engage in a
strike or to take work action to secure any right or privilege from the
state or its agencies;
2. Render a child care provider a state officer or employee or in any
way imply an employee-employer relationship with the state or its
subdivisions, including but not limited to a public retirement system,
public health insurance program, unemployment insurance, workers
compensation, disability coverage, New York civil service law or
indemnification under the public officers law;
3. Alter any current regulations, policies or procedures for health,
safety, discipline inspection or enforcement applicable to child care
providers or programs unless agreed to and enacted;
4. Interfere with the existing relationship between consumers and
child care providers including existing rights of parents or guardians
to change or terminate a provider's service;
5. Interfere with any ability of child care providers or child care
provider representatives to meet or correspond with any state agency
with regard to any matter of relevance; and
6. Create any contractual right or obligations.
ARTICLE 19-D Minimum Wage Rates For Covered Airport Workers
Definitions. As used in this article: 1. "Covered airport
location" means John F. Kennedy International Airport and LaGuardia
Airport or any location used to perform work related to the preparation
or delivery of food for consumption on airplanes departing from John F.
Kennedy International Airport or LaGuardia Airport.
2. (a) "Covered airport worker" means any person employed to perform
work at a covered airport location.
(b) "Covered airport worker" shall include any person employed to
perform work at a covered airport location, provided at least half of
the employee's time during any workweek is performed at a covered
airport location.
(c) "Covered airport worker" shall not include persons employed in an
executive, administrative, or professional capacity as defined in
subparagraph one of paragraph (a) of section thirteen of the Fair Labor
Standards Act of 1938 (29 U.S.C. s.213 et seq.), or persons employed by
the Port Authority of New York and New Jersey or any other governmental
agency.
3. "Successor airport employer" means any employer that employs
covered airport workers who provide services at a covered airport
location that are substantially similar to those that were provided by
covered airport workers previously employed by another employer at such
covered airport location.
4. "Employer" means any person, corporation, limited liability
company, or association employing any individual in an occupation,
industry, trade, business or service. The term "employer" shall not
include a governmental agency or employers with ten or fewer employees.
5. The "applicable standard rate" means the wage and benefit rates
designated by the commissioner based on the determinations made by the
General Services Administration pursuant to the federal McNamara-O'Hara
Service Contract Act of 1965 (41 U.S.C. 6701 et seq.), for the
appropriate localities and classifications of building service
employees; provided, however, that in no event shall the prevailing wage
rate applicable to a covered airport worker on and after January first,
two thousand twenty-five and every year thereafter be less than the
following:
(a) any otherwise applicable minimum wage rate established through a
regulation of the Port Authority of New York and New Jersey; and
(b) an amount of supplemental wages or a supplemental healthcare
contribution equal to the rate for health and welfare for all
occupations, designated by the commissioner based on the determinations
made by the federal department of labor pursuant to the McNamara-O'Hara
Service Contract Act of 1965 (41 U.S.C. 6701 et seq.) for the geographic
region in which the covered airport location is situated and in effect
on the date of the designation by the commissioner; and
(c) paid leave equal to the paid leave requirements designated by the
commissioner the immediately preceding January first, based on the
determinations made by the General Services Administration pursuant to
the McNamara-O'Hara Service Contract Act of 1965 (41 U.S.C. 6701 et
seq.).
6. "Commissioner" means the commissioner of labor of the state of New
York.
Minimum wage rate for covered airport workers. All employers
at a covered airport location shall ensure that every covered airport
worker is compensated at a rate that is no less than the applicable
standard rate. Nothing in this article shall alter or limit any
employer's obligation to pay any otherwise applicable prevailing wage
under article eight or nine of this chapter.
Commissioner's powers of investigation. The commissioner or
such commissioner's authorized representative shall have the power to:
1. investigate the compensation of covered airport workers in the
state;
2. enter the place of business or employment of any employer for the
purpose of (a) examining and inspecting any and all books, registers,
payrolls, and other records that in any way relate to or have a bearing
upon the compensation provided to, or the hours worked by any employees,
and (b) ascertaining whether the provisions of this article and the
rules and regulations promulgated hereunder are being complied with; and
3. require from any employer full and correct statements and reports
in writing, at such times as the commissioner may deem necessary, of the
compensation provided to and the hours by such employer's employees.
Records of employers. For every employee covered by this
article, every employer shall establish, maintain, and preserve for not
less than six years contemporaneous, true, and accurate payroll records
showing for each week worked the hours worked, the compensation
provided, plus such other information as the commissioner deems material
and necessary. For all covered airport workers who are not exempt from
overtime compensation as established in the commissioner's minimum wage
orders or otherwise provided by law, rule, or regulation, the payroll
records shall include the compensation provided and the regular hourly
rate or rates of pay, the overtime rate or rates of pay, the number of
regular hours worked, the number of overtime hours worked and the cost
of benefits and/or benefit supplements. On demand, the employer shall
furnish to the commissioner or such commissioner's duly authorized
representative a sworn statement of the hours worked, rate or rates of
compensation, for each covered airport worker, plus such other
information as the commissioner deems material and necessary. Every
employer shall keep such records open to inspection by the commissioner
or such commissioner's duly authorized representative at any reasonable
time. Every employer of a covered airport worker shall keep a digest and
summary of this article which shall be prepared by the commissioner,
posted in a conspicuous place in their establishment and shall also keep
posted such additional copies of said digest and summary as the
commissioner prescribes. Employers shall, on request, be furnished with
copies of this article and of orders, and of digests and summaries
thereof, without charge. Employers shall permit the commissioner or such
commissioner's duly authorized representative to question without
interference any employee of such employer in a private location at the
place of employment and during working hours in respect to the wages
paid to and the hours worked by such employee or other employees.
Penalties. 1. If the commissioner finds that any employer has
violated any provision of this article or of a rule or regulation
promulgated thereunder, the commissioner may, after an opportunity for a
hearing, and by an order which shall describe particularly the nature of
the violation, assess the employer a civil penalty of not more than ten
thousand dollars for the first such violation within six years, not more
than twenty thousand dollars for a second violation within six years and
not more than fifty thousand dollars for a third or subsequent violation
within six years. Such penalty shall be paid to the commissioner for
deposit in the treasury of the state. In assessing the amount of the
penalty, the commissioner shall give due consideration to the size of
the employer's business, the good faith basis of the employer to believe
that its conduct was in compliance with the law, the gravity of the
violation, the history of previous violations and the failure to comply
with record-keeping or other requirements.
2. Any order issued under subdivision one of this section shall be
deemed a final order of the commissioner and not subject to review by
any court or agency unless the employer files a petition with the
industrial board of appeals for a review of the order, pursuant to
section one hundred one of this chapter.
3. The civil penalty provided for in this section shall be in addition
to and may be imposed concurrently with any other remedy or penalty
provided for in this chapter.
4. Upon a showing by an employee organization, the commissioner may
investigate by examining payroll records whether an employer withheld
hours of work to employees for the purpose of reducing the employer's
obligations under this article. If, after the opportunity for a hearing,
the commissioner determines that an employer withheld hours of work to
employees for the purpose of reducing the employer's obligations under
this article, the commissioner may, in addition to any other penalty
available, also require that the employer pay the applicable standard
rate to all of the employer's employees, regardless of the number of
hours worked by the employees.
Civil action. 1. On behalf of any employee paid less than the
applicable standard rate to which the employee is entitled under the
provisions of this article, the commissioner may bring any legal action
necessary, including administrative action, to collect such claim, and
the employer shall be required to pay the full amount of the
underpayment, plus costs, and unless the employer proves a good faith
basis to believe that its underpayment was in compliance with the law,
an additional amount as liquidated damages. Liquidated damages shall be
calculated by the commissioner as no more than one hundred percent of
the total amount of underpayments found to be due the employee. In any
action brought by the commissioner in a court of competent jurisdiction,
liquidated damages shall be calculated as an amount equal to one hundred
percent of underpayments found to be due the employee.
2. Notwithstanding any other provision of law, an action to recover
upon a liability imposed by this article must be commenced within six
years. The statute of limitations shall be tolled from the date an
employee files a complaint with the commissioner or the commissioner
commences an investigation, whichever is earlier, until an order to
comply issued by the commissioner becomes final, or where the
commissioner does not issue an order, until the date on which the
commissioner notifies the complainant that the investigation has
concluded.
3. In any civil action by the commissioner, the commissioner shall
have the right to collect attorneys' fees and costs incurred in
enforcing any court judgment. Any judgment or court order awarding
remedies under this section shall provide that if any amounts remain
unpaid upon the expiration of ninety days following issuance of
judgment, or ninety days after expiration of the time to appeal and no
appeal therefrom is then pending, whichever is later, the total amount
of judgment shall automatically increase by fifteen percent.
Regulations. The commissioner may promulgate such regulations
as such commissioner deems appropriate to carry out the purposes of this
article and to safeguard minimum compensation standards.
Savings clause. 1. If any provision of this article or the
application thereof to any person, occupation or circumstance is held
invalid, the remainder of the article and the application of such
provision to other persons, employees, occupations, or circumstances
shall not be affected thereby.
2. If any clause, sentence, paragraph, subdivision, section or part of
this article shall be adjudged by any court of competent jurisdiction to
be invalid, such judgment shall not affect, impair, or invalidate the
remainder thereof, but shall be confined in its operation to the clause,
sentence, paragraph, subdivision, section or part thereof directly
involved in the controversy in which such judgment shall have been
rendered. It is hereby declared to be the intent of the legislature that
this article would have been enacted even if such invalid provisions had
not been included herein.
ARTICLE 20 New York State Labor Relations Act
Findings and policy. In the interpretation and application of
this article, and otherwise, it is hereby declared to be the public
policy of the state to encourage the practice and procedure of
collective bargaining, and to protect employees in the exercise of full
freedom of association, self-organization and designation of
representatives of their own choosing for the purposes of collective
bargaining, or other mutual aid and protection, free from the
interference, restraint or coercion of their employers.
It is also hereby declared as the public policy of this state that the
best interests of the people of the state are served by the prevention
or prompt settlement of labor disputes and that the voluntary resolution
of such disputes will tend to promote permanent industrial peace and the
health, welfare, comfort and safety of the people of the state.
Representatives of employers and employees engaged in such disputes are
encouraged voluntarily to submit them to the agency created by this
article prior to engaging in a strike, lock-out or other cessation of
employment; and should participate fully and promptly in any meetings
which may be arranged by the agency for the purpose of resolving the
dispute.
To carry out such policy, the necessity for the enactment of the
provisions of this article is hereby declared as a matter of legislative
determination.
All the provisions of this article shall be liberally construed for
the accomplishment of this purpose.
This article shall be deemed an exercise of the police power of the
state for the protection of the public welfare, prosperity, health and
peace of the people of the state.
Definitions. When used in this article:
1. The term "person" includes one or more individuals, partnerships,
associations, corporations, legal representatives, trustees, trustees in
bankruptcy, or receivers.
2. (a) The term "employer" includes any person acting on behalf of or
in the interest of an employer, directly or indirectly, with or without
his knowledge, and shall include any person who is the purchaser of
services performed by a person described in paragraph (b) of subdivision
three of this section, but a labor organization or any officer or agent
thereof shall only be considered an employer with respect to individuals
employed by such organization.
(b) The term "employer" includes agricultural employers. The term
"agricultural employer" shall mean any employer engaged in cultivating
the soil or in raising or harvesting any agricultural or horticultural
commodity including custom harvesting operators, and employers engaged
in the business of crops, livestock and livestock products as defined in
section three hundred one of the agriculture and markets law, or other
similar agricultural enterprises.
3. (a) The term "employees" includes but is not restricted to any
individual employed by a labor organization; any individual whose
employment has ceased as a consequence of, or in connection with, any
current labor dispute or because of any unfair labor practice, and who
has not obtained any other regular and substantially equivalent
employment; and shall not be limited to the employees of a particular
employer, unless the article explicitly states otherwise, but shall not
include any individual employed by his parent or spouse or in the
domestic service of and directly employed, controlled and paid by any
person in his home, any individual whose primary responsibility is the
care of a minor child or children and/or someone who lives in the home
of a person for the purpose of serving as a companion to a sick,
convalescing or elderly person or any individuals employed only for the
duration of a labor dispute, or any individual who participates in and
receives rehabilitative or therapeutic services in a charitable
non-profit rehabilitation facility or sheltered workshop or any
individual employed in a charitable non-profit rehabilitation facility
or sheltered workshop who has received rehabilitative or therapeutic
services and whose capacity to perform the work for which he is engaged
is substantially impaired by physical or mental deficiency or injury.
(b) The term "employee" shall also include a professional musician or
a person otherwise engaged in the performing arts who performs services
as such. "Engaged in the performing arts" shall mean performing services
in connection with production of or performance in any artistic endeavor
which requires artistic or technical skill or expertise.
(c) The term "employee" shall also include farm laborers. "Farm
laborers" shall mean any individual engaged or permitted by an employer
to work on a farm. Members of an agricultural employer's immediate
family who are related to the third degree of consanguinity or affinity
shall not be considered to be employed on a farm if they work on a farm
out of familial obligations and are not paid wages, or other
compensation based on their hours or days of work.
4. The term "representatives" includes a labor organization or an
individual whether or not employed by the employer of those whom he
represents.
5. The term "labor organization" means any organization which exists
and is constituted for the purpose, in whole or in part, of collective
bargaining, or of dealing with employers concerning grievances, terms or
conditions of employment, or of other mutual aid or protection and which
is not a company union as defined herein.
6. The term "company union" means any committee, employee
representation plan or association of employees which exists for the
purpose, in whole or in part, of dealing with employers concerning
grievances or terms and conditions of employment, which the employer has
initiated or created or whose initiation or creation he has suggested,
participated in or in the formulation of whose governing rules or
policies or the conducting of whose management, operations or elections
the employer participates in or supervises or which the employer
maintains, finances, controls, dominates, or assists in maintaining or
financing, whether by compensating anyone for services performed in its
behalf or by donating free services, equipment, materials, office or
meeting space or anything else of value, or by any other means.
7. The term "unfair labor practice" means only those unfair labor
practices listed in section seven hundred four.
8. The term "labor dispute" includes, but is not restricted to, any
controversy between employers and employees or their representatives as
defined in this section concerning terms, tenure or conditions of
employment or concerning the association or representation of persons in
negotiating, fixing, maintaining, changing, or seeking to negotiate,
fix, maintain or change terms or conditions of employment, or concerning
the violation of any of the rights granted or affirmed by this article,
regardless of whether the disputants stand in the proximate relation of
employer and employee.
9. The term "board" means the public employment relations board
created by section two hundred five of the civil service law, in
carrying out its functions under this article.
10. The term "policies of this article" means the policies set forth
in section seven hundred.
11. The term "non-profitmaking hospital or residential care center"
means an organized residential facility for the medical diagnosis,
treatment and care of illness, disease, injury, infirmity or deformity,
or a residential facility providing nursing care or care of the aged or
dependent children, or a facility for the prevention of cruelty to
children or animals, which is located anywhere in the state and which is
maintained and operated by an association or corporation, no part of the
net earnings of which inures to the benefit of any private shareholder
or individual.
12. The term "employee of a non-profitmaking hospital or residential
care center" means any person employed or permitted to work by or at a
non-profitmaking hospital or residential care center but shall not
include any person employed or permitted to work: (a) in or for such a
non-profitmaking hospital or residential care center, which work is
incidental to or in return for charitable aid conferred upon such
individual and not under any express contract of hire; or (b) as a
volunteer.
Special mediators. The board may, when necessary, appoint or
designate special mediators who shall have the authority and power of
members of the board with regard to such matter, provided that their
authority and power to act for the board shall cease upon the conclusion
of the specific matter so assigned to them or by revocation by the board
of their appointment or designation. Such special mediators shall, when
performing the work of the board as aforesaid, be compensated at a rate
to be determined by the board subject to the approval of the director of
the budget, together with an allowance for actual and necessary expenses
incurred in the discharge of their duties hereunder.
Settlement of labor disputes. 1. Upon its own motion, in an
existing, imminent or threatened labor dispute, the board may and, upon
the direction of the governor, the board shall take such steps as it may
deem expedient to effect a voluntary, amicable and expeditious
adjustment and settlement of the differences and issues between employer
and employees which have precipitated or culminated in or threatened to
precipitate or culminate in such labor dispute. In providing its
services, the board shall take into consideration and make all parties
aware of the availability of other mediation services, such as the
federal mediation and conciliation service, and shall make every effort
to give priority to those parties which do not have access to such other
services. To this end, it shall be the duty of the board: (a) to arrange
for, hold, adjourn, or reconvene a conference or conferences between the
disputants and/or one or more of their representatives; (b) to invite
the disputants and/or their representative to attend such conferences
and submit, either orally or in writing, the grievances of and
differences between the disputants; (c) to discuss such grievances and
differences with the disputants and their representatives and in the
course of such proceeding, upon the consent of all disputants and their
representatives, to appoint fact-finding boards and to arbitrate such
grievances and differences; and (d) to assist in negotiating and
drafting agreements for the adjustment in settlement of such grievances
and differences and for the termination or avoidance, as the case may
be, of the existing or threatened labor dispute.
2. The board shall have the power at the request of the parties to a
collective bargaining agreement between an employer and its employees to
arbitrate such grievances and differences as may arise thereunder and to
establish panels of qualified persons to be available to serve as
arbitrators of such grievances and differences. The board shall
promulgate regulations setting forth eligibility requirements for
inclusion on such panels, in order to ensure the availability of
qualified, accessible, affordable arbitrators.
3. In carrying out any of its work under this article, the board may
designate one of its members or an officer or employee of the board to
act in its behalf and may delegate to such designee one or more of its
duties hereunder and, for such purpose, such designee shall have all of
the powers hereby conferred upon the board in connection with the
discharge of the duty or duties so delegated.
4. No member or officer of the board having any financial or other
interest in a trade, business, industry or occupation in which a labor
dispute exists or is threatened and of which the board has taken
cognizance, shall be qualified to participate in any way in the acts or
efforts of the board in connection with the settlement or avoidance
thereof.
5. Members of the board and all other employees of the board,
including any arbitrator serving on an arbitration panel established by
the board, shall not be compelled to disclose to any administrative or
judicial tribunal any information relating to, or acquired in, the
course of their official activities under this article, nor shall any
reports, minutes, written communications, or other documents of the
board pertaining to such information be subject to subpoena; except that
where the information so required indicates that the person appearing or
who has appeared before the board has been the victim or subject of a
crime, said members of the board, the executive secretary and all other
employees of the board, including any arbitrator serving on an
arbitration panel established by the board, may be required to testify
fully in relation thereto upon any examination, trial, or other
proceeding in which the commission of a crime is the subject of inquiry.
Impasse resolution procedures for agricultural employers and
farm laborers. 1. For purposes of this section, an impasse may be deemed
to exist if the parties fail to achieve agreement by the end of a
forty-day period from the date of certification or recognition of an
employee organization or from the expiration date of a collective
bargaining agreement.
2. Upon impasse, agricultural employers or recognized employee
organizations may request the board to render assistance as provided in
this section. If the board determines an impasse exists in the course of
collective negotiations between an agricultural employer and a
recognized employee organization, the board shall aid the parties in
effecting a voluntary resolution of the dispute.
3. On request of either party, as provided in subdivision two of this
section, and in the event the board determines that an impasse exists in
collective negotiations between such employee organization and an
agricultural employer as to the conditions of employment of farm
laborers, the board shall render assistance as follows:
a. to assist the parties to effect a voluntary resolution of the
dispute, the board shall appoint a mediator from a list of qualified
persons maintained by the board;
b. if the mediator is unable to effect settlement of the controversy
within thirty days after his or her appointment, either party may
petition the board to refer the dispute to a neutral arbitrator;
c. upon petition of either party, the board shall refer the dispute to
a neutral arbitrator as hereinafter provided;
i. the neutral arbitrator shall be appointed jointly by the
agricultural employer and employee organization within ten days after
receipt by the board of a petition for arbitration. Each of the
respective parties is to share equally the cost of the neutral
arbitrator. If, within seven days after the mailing date, the parties
are unable to agree upon the neutral arbitrator, the board shall submit
to the parties a list of qualified, disinterested persons for the
selection of a neutral arbitrator. Each party shall alternately strike
from the list one of the names with the order of striking determined by
lot, until the remaining one person shall be designated as the neutral
arbitrator. This process shall be completed within five days of receipt
of this list. The parties shall notify the board of the designated
neutral arbitrator;
ii. the neutral arbitrator shall hold hearings on all matters related
to the dispute. The parties may be heard either in person, by counsel,
or by other representatives, as they may respectively designate. The
panel may grant more than one adjournment each for each party; provided,
however, that a second request of either party and any subsequent
adjournments may be granted on request of either party, provided that
the party which requests the adjournment shall pay the arbitrator's fee.
The parties may present, either orally or in writing, or both,
statements of fact, supporting witnesses and other evidence, and
argument of their respective positions with respect to each case. The
arbitrator shall have authority to require the production of such
additional evidence, either oral or written as she or he may desire from
the parties and shall provide at the request of either party that a full
and complete record be kept of any such hearings, the cost of such
record to be borne by the requesting party. If such record is created,
it shall be shared with both parties regardless of which party paid for
it;
iii. the arbitrator shall make a just and reasonable determination of
the matters in dispute. In arriving at such determination, the
arbitrator shall specify the basis for her or his findings, taking into
consideration, in addition to any factors stipulated by the parties or
any other relevant factors, the following:
A. comparison of the wages, hours and conditions of employment of the
employees involved in the arbitration proceeding with the wages, hours,
and conditions of employment of other employees performing similar
services or requiring similar skills under similar working conditions
and with other employees generally in agricultural employment in
comparable communities;
B. the interests and welfare of the farm laborers and the financial
ability of the agricultural employer to pay;
C. comparison of peculiarities in regard to other trades or
professions, including specifically, (i) hazards of employment; (ii)
physical qualifications; (iii) educational qualifications; (iv) mental
qualifications; (v) job training and skills;
D. the terms of collective agreements negotiated between the parties
in the past providing for compensation and fringe benefits; and
E. the impact on the food supply and commodity pricing.
iv. the determination of the neutral arbitrator shall be final and
binding upon the parties for the period prescribed by the arbitrator,
but in no event shall such period exceed two years from the date of the
arbitrator's determination;
v. the determination of the public arbitration panel shall be subject
to review by a court of competent jurisdiction in the manner prescribed
by law.
Rights of employees. Employees shall have the right of
self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing, and
to engage in concerted activities, for the purpose of collective
bargaining or other mutual aid or protection, free from interference,
restraint, or coercion of employers, but nothing contained in this
article shall be interpreted to prohibit employees from exercising the
right to confer with their employer at any time, provided that during
such conference there is no attempt by the employer, directly or
indirectly, to interfere with, restrain or coerce employees in the
exercise of the rights guaranteed by this section.
Notwithstanding any other provision of law, for farm laborers the term
"concerted activities" shall not include a right to strike or other
concerted stoppage of work or slowdown.
Unfair labor practices. It shall be an unfair labor practice
for an employer:
1. To spy upon or keep under surveillance, whether directly or through
agents or any other person, any activities of employees or their
representatives in the exercise of the rights guaranteed by section
2. To prepare, maintain, distribute or circulate any blacklist of
individuals for the purpose of preventing any of such individuals from
obtaining or retaining employment because of the exercise by such
individuals of any of the rights guaranteed by section seven hundred
three.
3. To dominate or interfere with the formation, existence, or
administration of any employee organization or association, agency or
plan which exists in whole or in part for the purpose of dealing with
employers concerning terms or conditions of employment, labor disputes
or grievances, or to contribute financial or other support to any such
organization, by any means, including but not limited to the following:
(a) by participating or assisting in, supervising, controlling or
dominating (1) the initiation or creation of any such employee
organization or association, agency, or plan, or (2) the meetings,
management, operation, elections, formulation or amendment of
constitution, rules or policies, of any such employee organization or
association, agency or plan; (b) by urging the employees to join any
such employee organization or association, agency or plan for the
purpose of encouraging membership in the same; (c) by compensating any
employee or individual for services performed in behalf of any such
employee organization or association, agency or plan, or by donating
free services, equipment, materials, office or meeting space or anything
else of value for the use of any such employee organization or
association, agency or plan; provided that, an employer shall not be
prohibited from permitting employees to confer with him during working
hours without loss of time or pay.
4. To require an employee or one seeking employment, as a condition of
employment, to join any company union or to refrain from forming, or
joining or assisting a labor organization of his own choosing.
5. To encourage membership in any company union or discourage
membership in any labor organization, by discrimination in regard to
hire or tenure or in any term or condition of employment: Provided that
nothing in this article shall preclude an employer from making an
agreement with a labor organization requiring as a condition of
employment membership therein, if such labor organization is the
representative of employees as provided in section seven hundred five.
6. To refuse to bargain collectively with the representatives of
employees, subject to the provisions of section seven hundred five.
7. To refuse to discuss grievances with representatives of employees,
subject to the provisions of section seven hundred five.
8. To discharge or otherwise discriminate against an employee because
he has signed or filed any affidavit, petition or complaint or given any
information or testimony under this article.
9. To distribute or circulate any blacklist of individuals exercising
any right created or confirmed by this article or of members of a labor
organization, or to inform any person of the exercise by any individual
of such right, or of the membership of any individual in a labor
organization for the purpose of preventing individuals so blacklisted or
so named from obtaining or retaining employment.
10. To do any acts, other than those already enumerated in this
section, which interfere with, restrain or coerce employees in the
exercise of the rights guaranteed by section seven hundred three.
11. To utilize any state funding appropriated for any purpose to train
managers, supervisors or other administrative personnel regarding
methods to discourage union organization, or to discourage an employee
from participating in a union organizing drive.
Unfair practices; performing arts. It shall not be an unfair
labor practice for an employer engaged in the performing arts to make an
agreement with a labor organization, of which performing artists are
members, covering employees engaged in the performing arts, or who, upon
their employment, will be so engaged, because the majority status of
such labor organization has not been established under the provisions of
this article or because such agreement requires, as a condition of
employment, membership in such labor organization after the seventh day
following the beginning of such employment or the effective date of such
agreement, whichever is later. Nothing in this section shall be
construed as to bar any proceeding brought pursuant to section seven
hundred five of this article.
Unfair labor practices. 1. It shall be an unfair labor
practice for a farm laborer or an employee organization representing
farm laborers to strike any agricultural employer. The term "strike"
shall mean, for the purposes of this section, any strike or other
concerted stoppage of work or slowdown by farm laborers.
2. It shall be an unfair labor practice for an agricultural employer
to:
a. lockout its laborers. The term "lockout" shall mean, for the
purposes of this section, a refusal by an agricultural employer to
permit farm laborers to work as a result of a dispute with such farm
laborers or employee organization representing such farm laborers that
affects wages, hours and other terms and conditions of employment of
such farm laborers, provided, however, that a lockout shall not include
a termination of employment for good cause that does not involve such
laborers exercising any rights guaranteed by this article;
b. refuse to continue all the terms of an expired agreement until a
new agreement is negotiated;
c. discourage union organization or to discourage an employee from
participating in a union organizing drive, engaging in protected
concerted activity, or otherwise exercising the rights guaranteed under
this article.
3. Nothing in this section shall be construed as to bar any proceeding
brought pursuant to section seven hundred four or seven hundred five of
this article.
Representatives and elections. 1. Representatives designated by
the board after a showing of majority interest or selected for the
purposes of collective bargaining by the majority of the employees in a
unit appropriate for such purposes or by the majority of the employees
voting in an election conducted pursuant to this section shall be the
exclusive representatives of all the employees in the appropriate unit
for the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions of employment: Provided,
that employees, directly or through representatives, shall have the
right at any time to present grievances to their employer.
The board shall designate a representative for purposes of collective
bargaining when such representative demonstrates a showing of majority
interest by employees in the unit. In cases where the parties to a
dispute are without agreement on the means to ascertain the choice, if
any, of employee organization as their representative, the board shall
ascertain such employees' choice of employee organization, on the basis
of dues deduction authorization and other evidence, or if necessary by
conducting an election. In the event that either party provides to the
board, prior to the designation of a representative, clear and
convincing evidence that the dues deduction authorizations, and other
evidence upon which the board would otherwise rely to ascertain the
employees' choice of representative, are fraudulent or were obtained
through coercion, the board shall promptly thereafter conduct an
election. The board shall also investigate and consider a party's
allegations that the dues deduction authorizations and other evidences
submitted in support of a designation of representative without an
election were subsequently changed, altered, withdrawn or withheld as a
result of employer fraud, coercion or any other unfair employer labor
practice as defined in section seven hundred four of this article. If
the board determines that a representative would have had a majority
interest but for the employer's fraud, coercion or unfair labor
practice, it shall designate the representative without the conduct of
an election.
1-a. If the choice available to the employees in a negotiating unit is
limited to selecting or rejecting a single employee organization, that
choice shall be ascertained by the board on the basis of dues deduction
authorizations instead of by an election. In such case, the employee
organization involved will be certified without an election if a
majority of the employees within the unit have executed a showing dues
deductions authorizations.
1-b. The board shall determine whether any supervisory employee shall
be excluded from any negotiating unit that includes rank-and-file farm
laborers; provided, however, that nothing in this subdivision shall be
construed to limit or prohibit any supervisory employee from organizing
a separate negotiating unit.
2. The board shall decide in each case whether, in order to insure to
employees the full benefit of their right to self-organization, to
collective bargaining and otherwise to effectuate the policies of this
article, the unit appropriate for the purposes of collective bargaining
shall be the employer unit, multiple employer unit, craft unit, plant
unit, or any other unit; provided, however, that in any case where the
majority of employees of a particular craft, or in the case of a
non-profitmaking hospital or residential care center where the majority
of employees of a particular profession or craft, shall so decide the
board shall designate such profession or craft as a unit appropriate for
the purpose of collective bargaining.
3. Whenever it is alleged by an employee or his representative, or by
an employer or his representative, that there is a question or
controversy concerning the representation of employees, the board shall
investigate such question or controversy and certify in writing to all
persons concerned the name or names of the representatives who have been
designated or selected. In any such investigation the board shall
provide for an appropriate hearing upon due notice, either in conjuction
with a proceeding under section seven hundred six or otherwise, and may
conduct an election by secret ballot of employees, or use any other
suitable method to ascertain such representatives (either before or
after the aforesaid hearing), provided, however, that the board shall
not have authority to investigate or determine any question or
controversy between individuals or groups within the same labor
organization nor between labor organizations affiliated with the same
parent labor organization concerning the internal affairs of any labor
organization but nothing contained in this proviso shall be deemed to
preclude the board from investigating and determining which, if any, of
affiliated groups or labor organizations have been designated or
selected by employees as their representatives for the purposes of
collective bargaining within the meaning of this article.
4. The board shall have power to determine who may participate in the
election and to establish the rules governing any such election:
Provided, that no election need be directed by the board solely because
of the request of an employer or of employees prompted thereto by their
employer, nor shall any individuals employed only for the duration of a
strike or lockout be eligible to vote in such election; and provided
further, that no such election shall be conducted under the employer's
supervision, or, except as may be required by the board, on the
employer's property, during working hours, or with his participation or
assistance.
5. If at an election conducted pursuant to this section three or more
nominees for exclusive collective bargaining representatives appear on
the ballot and no one of them receives a majority of the votes cast at
the election, the two nominees who received the highest number of votes
shall appear on the ballot of a second election to be conducted
hereunder, and the one receiving a majority of the votes cast at the
second election shall be the exclusive representative of all the
employees in such unit for the purpose of collective bargaining in
respect to rates of pay, wages, hours of employment, or other conditions
of employment.
6. A labor organization nominated as the representative of employees
shall be listed by name on the ballots authorized by subdivision three
of this section. In any investigation conducted by the board pursuant to
this section the board may make a finding as to whether any committee,
employee representation plan, or association of employees involved is a
company union, and if any such committee, employee representation plan,
or association of employees be found to be a company union, it shall not
be listed on the ballots, certified or otherwise recognized as eligible
to be the representative of employees under this article.
Prevention of unfair labor practices. 1. The board is empowered
and directed, as hereinafter provided, to prevent any employer from
engaging in any unfair labor practice. This power shall not be affected
or impaired by any means of adjustment, mediation or conciliation in
labor disputes that have been or may hereafter be established by law.
2. Whenever a charge has been made that any employer has engaged in or
is engaging in any unfair labor practice, the board or its agent shall
have the power to serve upon such employer a copy of the charge that was
filed with the board and a notice setting the date for the service and
filing of an answer. Any such charge may be amended from time to time
prior to the issuance of an order based thereon. The employer or the
person so charged shall have the right to file an answer to the original
or amended charge and to appear in person or otherwise to give testimony
at the place and time set by the board or its agent. In the discretion
of a member or agent conducting the hearing, or of the board, any other
person may be allowed to intervene in the said proceeding and to present
testimony. In any such proceeding the board or its agent shall not be
bound by technical rules of evidence prevailing in the courts of law or
equity.
3. The testimony taken at the hearing shall be reduced to writing and
filed with the board. Thereafter, in its discretion, the board upon
notice may take further testimony or hear argument. If upon all the
testimony taken the board shall determine that the respondent has
engaged in or is engaging in any unfair labor practice, the board shall
state its findings of fact and shall issue and cause to be served on
such respondent an order requiring such respondent to cease and desist
from such unfair labor practice, and to take such further affirmative or
other action as will effectuate the policies of this article, including,
but not limited to (a) withdrawal of recognition from and refraining
from bargaining collectively with any employee organization or
association, agency or plan defined in this article as a company union
or established, maintained or assisted by any action defined in this
article as an unfair labor practice; (b) awarding of back pay; (c)
reinstatement with or without back pay of any employee discriminated
against in violation of section seven hundred four, or maintenance of a
preferential list from which such employee shall be returned to work;
(d) reinstatement with or without back pay of all employees whose work
has ceased or whose return to work has been delayed or prevented as the
result of the aforementioned or any other unfair labor practice in
respect to any employee or employees or maintenance of a preferential
list from which such employees shall be returned to work. Such order may
further require such person to make reports from time to time showing
the extent to which the order has been complied with. If upon all the
testimony the board shall be of the opinion that the person or persons
named in the complaint have not engaged in or are not engaging in any
such unfair labor practice, then the board shall make its findings of
fact and shall issue an order dismissing the complaint.
4. Until a transcript of the record in a case shall have been filed in
a court, as hereinafter provided, the board may at any time, upon
reasonable notice and in such manner as it shall deem proper, modify or
set aside, in whole or in part, any finding or order made or issued by
it.
5. The board shall not require as a condition of taking action or
issuing any order under this article, that employees on strike or
engaged in any other lawful, concerted activity shall discontinue such
strike or such activity.
6. The board shall consider all complaints or petitions filed with it
and conduct all proceedings under this article with all possible
expedition.
Judicial review. 1. The board shall have power to petition the
supreme court of the state within the county wherein the unfair labor
practice in question occurred or wherein any person charged with the
unfair labor practice resides or transacts business, or if such court be
on vacation or in recess, then to the supreme court of any county
adjoining the county wherein the unfair labor practice in question
occurred or wherein any person charged with the unfair labor practice
resides or transacts business, for the enforcement of such order and for
appropriate temporary relief or restraining order, and shall certify and
file in the court a transcript of the entire record in the proceeding,
including the pleadings and testimony upon which such order was made and
the findings and order of the board. Upon such filing, the court shall
cause notice thereof to be served upon such person, and thereupon shall
have jurisdiction of the proceeding and of the question determined
therein, and shall have power to grant such temporary relief or
restraining order as it deems just and proper, and to make and enter
upon the pleadings, testimony, and proceedings set forth in such
transcript a decree enforcing, modifying, and enforcing as so modified,
or setting aside in whole or in part the order of the board.
2. No objection that has not been urged before the board, its member,
agent or agency, shall be considered by the court, unless the failure or
neglect to urge such objection shall be excused because of extraordinary
circumstances. The findings of the board as to the facts, if supported
by evidence, shall be conclusive. If either party shall apply to the
court for leave to adduce additional evidence and shall show to the
satisfaction of the court that such additional evidence is material and
that there were reasonable grounds for the failure to adduce such
evidence in the hearing before the board, its member, agent, or agency,
the court may order such additional evidence to be taken before the
board, its member, agent, or agency, and to be made a part of the
transcript. The board may modify its finding as to the facts, or make
new findings, by reason of additional evidence so taken and filed, and
it shall file such modified or new findings, which, if supported by
evidence, shall be conclusive, and shall file its recommendations, if
any, for the modification or setting aside of its original order.
3. The jurisdiction of the supreme court shall be exclusive and its
judgment and decree shall be final, except that appeals shall lie to the
appellate division of said court and to the court of appeals, in the
manner and subject to the limitations provided in the civil practice law
and rules irrespective of the nature of the decree or judgment or the
amount involved.
4. Any person aggrieved by a final order of the board granting or
denying in whole or in part the relief sought may obtain a review of
such order in the supreme court of the county where the unfair labor
practice in question was alleged to have been engaged in or wherein such
person resides or transacts business by filing in such court a written
petition praying that the order of the board be modified or set aside,
or if such court be on vacation or in recess, then to the supreme court
of any county adjoining the county wherein the unfair labor practice in
question occurred or wherein any such person resides or transacts
business. A copy of such petition shall be forthwith served upon the
board, and thereupon the aggrieved party shall file in the court a
transcript of the entire record in the proceeding, certified by the
board, including the pleading and testimony and order of the board. Upon
such filing, the court shall proceed in the same manner as in the case
of an application by the board under subdivision one of this section,
and shall have the same exclusive jurisdiction to grant to the board
such temporary relief or restraining order as it deems just and proper,
and in like manner to make and enter a decree enforcing, modifying and
enforcing as so modified, or setting aside in whole or in part the order
of the board; and the findings of the board as to the facts shall in
like manner be conclusive.
5. The commencement of proceedings under subdivisions one and four of
this section shall not, unless specifically ordered by the court,
operate as a stay of the board's order.
6. When granting appropriate temporary relief or a restraining order,
or making and entering a decree enforcing, modifying and enforcing as so
modified or setting aside in whole or in part an order of the board, as
provided in this section, the jurisdiction of courts sitting in equity
shall not be limited by acts pertaining to equity jurisdiction of
courts.
7. Petitions filed under this article shall be heard expeditiously and
shall be considered and determined upon the transcript filed, without
requirement of printing. Upon the filing of a record in the supreme
court, the case shall be heard with greatest possible expedition, and
shall take precedence over all other matters except matters of the same
character.
Investigatory powers. For the purpose of all hearings and
investigations, which, in the opinion of the board, are necessary and
proper for the exercise of the powers vested in it by sections seven
hundred five and seven hundred six,
1. The board, or its duly authorized agents or agencies, shall at all
reasonable times have access to, for the purposes of examination, and
the right to examine, copy or photograph any evidence, including
payrolls or lists of employees, of any person being investigated or
proceeded against that relates to any matter under investigation or in
question. The board shall have power to issue subpoenas requiring the
attendance and testimony of witnesses and the production of any evidence
that relates to any matter under investigation or in question before the
board, its member, agent, or agency, conducting the hearing or
investigation. Any member of the board, or any agent or agency
designated by the board for such purposes, may administer oaths and
affirmations, examine witnesses, and receive evidence.
2. If any witness resides outside of the state, or through illness or
other cause is unable to testify before the board or its member, agent,
or agency conducting the hearing or investigation, his or her testimony
or deposition may be taken within or without this state, in such manner
and in such form as the board or its member, agent or agency conducting
the hearing may by special order or general rule, prescribe.
3. In case of contumacy or refusal to obey a subpoena issued to any
person the supreme court of any county within the jurisdiction of which
the inquiry is carried on or within the jurisdiction of which said
person guilty of contumacy or refusal to obey is found or resides or
transacts business, upon application by the board shall have
jurisdiction to issue to such person an order requiring such person to
appear before the board, its member, agent, or agency, there to produce
evidence if so ordered, or there to give testimony touching the matter
under investigation or in question; and any failure to obey such order
of the court may be punished by said court as a contempt thereof.
4. Upon any such investigation or hearing, the board, a member
thereof, or any officer duly designated by the board to conduct such
investigation or hearing, may confer immunity in accordance with the
provisions of section 50.20 of the criminal procedure law.
* 5. Charges, petitions, orders, and other process and papers of the
board, its member, agent, or agency, may be served either personally or
by regular mail or by leaving a copy thereof at the principal office or
place of business of the person required to be served. The verified
return by the individual so serving the same setting forth the manner of
such service shall be proof of the same, and the return post office
receipt therefor when registered and mailed as aforesaid shall be proof
of service of the same. Witnesses summoned before the board, its member,
agent, or agency shall be paid the same fees and mileage that are paid
witnesses in the courts of this state, and witnesses whose depositions
are taken and the person taking the same shall severally be entitled to
the same fees as are paid for like services in the courts of this state.
Final orders issued by the board shall be served upon the parties by
registered or certified mail.
* NB Effective until November 22, 2023
* 5. Complaints, charges, petitions, orders, notices of hearing, and
other process and papers of the board, parties appearing before the
board, its members, agents, or agency, may be served either personally
or by regular mail or by leaving a copy thereof at the principal office
or place of business of the person required to be served, provided that
service shall be effectuated by e-filing pursuant to section seven
hundred eight-a of this article upon the effectiveness of such section,
and further provided that until the effectiveness of section seven
hundred eight-a of this article, parties shall provide courtesy copies
of all process and papers served by regular mail to the recipient party
by electronic mail to the electronic mailing address designated by the
party for such purpose unless the party can establish to the board that
it does not have access to the means to send courtesy copies by
electronic mail or that it would impose an undue burden. The verified
return or certificate of service by the individual so serving the same
setting forth the manner of such service shall be proof of the same, and
the return post office receipt therefor when registered and mailed as
aforesaid shall be proof of service of the same. Witnesses summoned
before the board, its member, agent, or agency shall be paid the same
fees and mileage that are paid witnesses in the courts of this state,
and witnesses whose depositions are taken and the person taking the same
shall severally be entitled to the same fees as are paid for like
services in the courts of this state. The board shall e-file all orders,
notices of hearing, and other process and papers originating from the
board pursuant to section seven hundred eight-a of this article upon the
effectiveness of such section, provided that until the effectiveness of
section seven hundred eight-a of this article, the board shall serve
final orders upon the parties by registered or certified mail and shall
send courtesy copies of such orders, notices of hearing, and other
process and papers originating from the board by electronic mail upon
all parties who have provided an electronic mailing address designated
for such purpose.
* NB Effective November 22, 2023
6. All process of any court to which application may be made under
this article may be served in the county wherein the person or persons
required to be served reside or may be found.
7. The several departments, commissions, divisions, authorities,
boards, bureaus, agencies and officers of the state or any political
subdivision or agency thereof, shall furnish the board, upon its
request, all records, papers, and information in their possession
relating to any matter before the board.
8. Subpoenas under this article shall be subject to paragraph (k) of
subdivision five of section two hundred five of the civil service law
and the rules and regulations promulgated under paragraph (l) of
subdivision five of section two hundred five of the civil service law.
* § 708-a. E-filing program for the purpose of filing papers
electronically. 1. Notwithstanding any other provision of law, the New
York state public employment relations board shall establish and
promulgate rules authorizing an electronic filing program (hereinafter
referred to as "e-filing"), in the use of electronic means for: (a) the
commencement of a proceeding; and (b) the filing and service of papers
in pending proceedings. The board's website shall contain the e-filing
program along with instructions for e-filing, such rules regarding
e-filing, and certain forms promulgated by the board that parties or
other persons may use to prepare their documents for e-filing.
2. Unless otherwise permitted under this section, all documents filed
in cases before the board shall be filed electronically (hereinafter
referred to as "e-filed"), on the board's website, unless the party can
establish to the board that it does not have access to the means for
e-filing or that e-filing would impose an undue burden.
* NB Effective November 22, 2023
Punitive provision. Any person who shall wilfully resist,
prevent, impede, or interfere with any member of the board or any of its
agents or agencies in the performance of duties pursuant to this
article, or who shall in any manner interfere with the free exercise by
employees of their right to select representatives in an election
directed by the board pursuant to section seven hundred and five, shall
be punished by a fine of not more than five thousand dollars or by
imprisonment for not more than one year, or both.
Public records and proceedings. Subject to rules and
regulations to be made by the board consistent with article six of the
public officers law, the complaints, orders and testimony relating to a
proceeding instituted by the board under section seven hundred six of
this article may be made public records and be made available for
inspection or copying. All proceedings pursuant to section seven hundred
six of this article shall be open to the public.
* § 710-a. Publicly accessible decision index. The board shall
establish and maintain a current index, by topic, of the principles of
law established by the decisions rendered by the board and its
predecessors and the courts concerning matters arising under this
article. Such index shall cite all appropriate authority which supports
such principles and, where appropriate, all conflicting authority. Such
index shall also contain a glossary of technical and statutory terms
commonly used by the board in its decisions. Copies of such index shall
be made available to the public electronically on the board's website.
* NB Effective November 22, 2023
Electronically available information. The board shall create
written materials informing employers and employees of the rights
afforded pursuant to this article to be made available on the board's
website. Such materials shall be translated into the twelve most common
non-English languages spoken by limited-English proficient individuals
in the state, based on the data in the most recent American Community
Survey published by the United States Census Bureau. Such materials
shall include the rights afforded under the farm laborers fair labor
practices act pursuant to chapter one hundred five of the laws of two
thousand nineteen.
Cooperation. The department and the other departments of the
state and the officers and employees thereof shall render such
assistance to the board as it may request in connection with its work
hereunder. The board shall at all times have the cooperation of and
shall cooperate with the department and the several boards, divisions
and officers thereof in carrying out the policy declared in section
seven hundred of this article.
Repeal of inconsistent provisions. Insofar as the provisions of
this article are inconsistent with the provisions of any other general,
special or local law, the provisions of this article shall be
controlling.
Limitations. Nothing in this article shall be construed so as
to interfere with, impede or diminish in any way the right of employees
to strike or engage in other lawful, concerted activities, except that
it shall continue to be unlawful for the employees of a non-profitmaking
hospital or residential care center, or their representatives, or any
other persons to engage in or to induce or encourage, or to attempt to
engage in or to induce or encourage any strike, work stoppage, slowdown
or withholding of goods or services by such employees or other persons
at such hospital or residential care center, provided, however, that
nothing herein shall be construed to prohibit publicity, other than
picketing, for the purpose of truthfully advising the public that a
grievance or dispute, as defined in section seven hundred sixteen of
this article, exists at such hospital or residential care center, as
long as such publicity does not have the effect of inducing any persons
to withhold goods or services at such hospital or residential care
center.
It shall be unlawful for a non-profitmaking hospital or residential
care center to institute, declare or cause, or to attempt to institute,
declare or cause any lockout of the employees of such hospital or
residential care center.
Separability. If any clause, sentence, paragraph, or part of
this article or the application thereof to any person or circumstances,
shall, for any reason, be adjudged by a court of competent jurisdiction
to be invalid, such judgment shall not affect, impair, or invalidate the
remainder of this article, and the application thereof to other person
or circumstances, but shall be confined in its operation to the clause,
sentence, paragraph, or part thereof directly involved in the
controversy in which such judgment shall have been rendered and to the
person or circumstances involved. It is hereby declared to be the
legislative intent that this article would have been adopted had such
invalid provisions not been included.
Grievances and disputes in non-profitmaking hospitals and
residential care centers. 1. As used in this section "grievance" means
any controversy or claim arising out of or relating to the
interpretation, application or breach of the provisions of an existing
collective bargaining contract. As used in this section "dispute" means
all other controversies, claims or disputes between the employees of a
non-profitmaking hospital or residential care center, or their
representatives, and such hospital or residential care center concerning
wages, hours, union security, seniority or other economic matters,
including, but not limited to, controversies, claims or disputes arising
in the course of negotiating, fixing, maintaining, changing or arranging
such terms or conditions.
2. Every collective bargaining contract between the employees of a
non-profitmaking hospital or residential care center, or their
representatives, and such hospital or residential care center which does
not contain provisions for the final and binding determination of
grievances shall be deemed to include provision for the submission of
such grievances, upon the request of either or both parties, to final
and binding arbitration pursuant to such rules as may be established
from time to time by the board.
3. Every collective bargaining contract between the employees of a
non-profitmaking hospital or residential care center, or their
representatives, and such hospital or residential care center which does
not contain provisions for the final and binding determination of
disputes shall be deemed to include provisions for:
(a) the appointment of a fact-finding commission by the board upon the
request of both parties to the dispute, or by the commissioner upon his
own motion and upon certification by such board that in its opinion
efforts to effect a voluntary settlement of the dispute have been
unsuccessful. Such fact-finding commission shall have all of the powers
and duties, including the power to make recommendations for the
settlement of the dispute, as are vested in a board of inquiry by
article twenty-two of this chapter; and
(b) the submission of the dispute to final and binding arbitration,
pursuant to such rules as may be established from time to time by the
board, by such board upon the request of both parties to the dispute, or
by the commissioner upon his own motion and upon certification by such
board that in its opinion efforts to effect a voluntary settlement of
the dispute have been unsuccessful. The commissioner or the board may
submit a dispute to final and binding arbitration pursuant to this
paragraph without first submitting it to a fact-finding commission
pursuant to the preceding paragraph of this subdivision.
4. In the absence of a collective bargaining contract between the
employees of a non-profitmaking hospital or residential care center, or
their representatives, and such hospital or residential care center, the
board and the commissioner may, in the manner and upon the conditions
provided in subdivision three of this section, exercise all of the
powers vested in them by the provisions of such subdivision of such
section.
5. Nothing in this section shall be deemed to affect, impair or alter
any collective bargaining contract between the employees of a
non-profitmaking hospital or residential care center, or their
representatives, and such hospital or residential care center which was
executed prior to July first, nineteen hundred sixty-three, during the
term of such contract.
6. (a) A petition under section seven hundred seven of this article
involving a non-profitmaking hospital or residential care center shall
be filed directly with the appellate division of the supreme court in
the department embracing the specified supreme court, and shall be heard
upon the certified transcript of the record in the proceeding before the
board, without requirement of printing. Such petition shall be heard in
a summary manner and have precedence over all other cases in such court.
An appeal may be taken to the court of appeals in the same manner and
subject to the same limitations not inconsistent herewith as is now
provided in the civil practice law and rules and a preference shall be
granted in the hearing thereof on motion of any party thereto.
(b) An application to confirm, modify, correct or vacate an
arbitration award made pursuant to the procedure established by this
section shall be made in accordance with the provisions of article
seventy-five of the civil practice law and rules, and the provisions of
paragraph (a) of this subdivision pertaining to a petition filed
thereunder shall apply to an application filed hereunder.
(c) The supreme court shall have jurisdiction, upon such notice as it
deems appropriate, to restrain or enjoin any violation of the provisions
of this section or section seven hundred thirteen and to grant such
other and further equitable relief as may be appropriate. The
provisions of section eight hundred seven of this chapter shall not
apply to an action or proceeding instituted pursuant to this section or
section seven hundred thirteen.
7. The fact-finders and arbitrators appointed pursuant to subdivision
three of this section may consider the following standards in arriving
at a final arbitration decision in disputes referred to them:
(a) the interest and welfare of the public;
(b) changes in the cost of living as they affect employees' purchasing
power;
(c) comparison of the wages, hours and conditions of employment of the
employees involved in the arbitration proceedings, and the wages, hours
and conditions of employment of employees doing the same, similar or
comparable work or work requiring the same, similar or comparable skills
and expenditures of energy and effort, giving consideration to such
factors as are peculiar to the industry involved;
(d) comparison of wages, hours and conditions of employment as
reflected in non-profitmaking hospitals and residential care centers in
other comparable areas;
(e) the security and tenure of employment with due regard for the
effect of technological changes thereon as well as the effect of any
unique skills, required training and other attributes developed in the
industry and required for the job;
(f) economic factors of the respective parties which are relevant to
the arbitration decision;
(g) such other factors not confined to the foregoing which are
normally or traditionally taken into consideration in the determination
of wages, hours and conditions of employment through voluntary
collective bargaining arbitration or otherwise between the parties or in
the industry.
8. Where the validity of a certification of representatives issued by
the board has been questioned by a refusal to bargain by a
non-profitmaking hospital or a residential care center, the provisions
of subdivision three of this section pertaining to fact-finding and
arbitration shall not apply unless and until an unfair labor practice
charge for refusal to bargain has been filed with the board. If such
unfair labor practice charge has been filed, (1) no application made
pursuant to section seventy-five hundred three of the civil practice law
and rules, or otherwise, shall be granted to stay fact-finding or
arbitration under this section; (2) the court shall consolidate the
petitions and applications filed pursuant to paragraphs (a) and (b) of
subdivision six of this section; and (3) no arbitration award made
pursuant to this subdivision shall become effective until there has been
a final determination that the labor organization has the right to
exclusive representation of the employees in the unit with respect to
which such award was made, pursuant to sections seven hundred five and
seven hundred seven of this article, provided that nothing herein shall
be interpreted to limit the discretion of the arbitrators to make such
award retroactive.
9. Notwithstanding the provisions of section eight hundred seven of
the labor law, where it appears that there may have been a violation of
section seven hundred thirteen of this article, the chief executive
officer of the non-profitmaking hospital or residential care center
involved, or, in the case of a lockout, any affected employee or his
certified representative, shall forthwith apply to the supreme court for
an injunction against such violation. If such chief executive officer,
or employee or his representative, fails or refuses to act as aforesaid,
and if the chief executive officer of the city or village in which such
hospital or center is located, or the chief executive officer of a town
with respect to such hospital or center located in the area of the town
outside any village therein, shall, in his discretion, determine that
the violation constitutes a threat to the public health, safety and
welfare of such city, village or town, as the case may be, such chief
executive officer shall so advise in writing the chief legal officer of
such city, village or town who shall forthwith apply to the supreme
court for an injunction against such violation. If an order of the court
enjoining or restraining such violation does not receive compliance,
such chief executive officer, employee or his representative, or chief
legal officer, as the case may be, shall forthwith apply to the supreme
court to punish such violation under section seven hundred fifty of the
judiciary law. As used in this paragraph, the term "chief executive
officer" shall mean (i) in the case of cities, the mayor, except in
those cities having a city manager, it shall mean such city manager;
(ii) in the case of villages, the mayor, except in those villages having
a president or manager, it shall mean such latter officer; and (iii) in
the case of towns, the supervisor or presiding supervisor.
State mediation board, state labor relations board, and state
employment relations board abolished. The state mediation board created
by chapter five hundred sixty-nine of the laws of nineteen hundred
sixty-eight, the New York state labor relations board created by chapter
four hundred forty-three of the laws of nineteen hundred thirty-seven,
and the state employment relations board created by chapter one hundred
sixty-six of the laws of nineteen hundred ninety-one are hereby
abolished. All the functions, powers and duties of such boards are
hereby assigned to and shall hereafter be exercised and performed by and
through the board. Any controversy, proceeding or other matter pending
before the New York state board of mediation, the state labor relations
board or the state employment relations board at the time this section
takes effect, may be conducted and completed by the board and for such
purposes the board shall be deemed to be a continuation of the
functions, powers and duties of the New York state board of mediation,
the state labor relations board or the state employment relations board,
respectively, and not a new entity. Upon the transfer of functions to
the board pursuant to this section, all appropriations and
reappropriations heretofore or hereafter made to the department of labor
relating to the state board of mediation or the state labor relations
board or segregated pursuant to law, to the extent of remaining
unexpended or unencumbered balances thereof, whether allocated or
unallocated and whether obligated or unobligated are hereby made
available for use and expenditure by the board for the same purposes for
which originally appropriated or reappropriated. Whenever the state
board of mediation or the state labor relations board or the chairman of
the state board of mediation or of the state labor relations board or
the state employment relations board is referred to or designated in any
general, special or local law or in any rule, regulation, contract or
other document, such reference or designation shall be deemed to refer
to the board and the chairman thereof, respectively.
Short title. This article shall be known and may be cited and
referred to as the "New York state employment relations act."
ARTICLE 20-A Labor and Management Improper Practices Act
Definitions. When used in this article, the term:
1. "Person" includes one or more individuals, partnerships,
associations, or corporations, whether acting for themselves or in a
representative capacity.
2. "Labor organization" means any organization of any kind which
exists for the purpose, in whole or in part, of representing employees
employed within the state of New York in dealing with employers or
employer organizations or with a state government, or any political or
civil subdivision or other agency thereof, concerning terms and
conditions of employment, grievances, labor disputes, or other matters
incidental to the employment relationship, and shall include the parent
national or international organization of a local labor organization.
3. "Employer" means any person conducting a business or employing
another within the state of New York, but shall not include a state
government or any political or civil subdivision or other agency
thereof.
4. "Employer organization" means any organization of any kind which
exists for the purpose, in whole or in part, of representing employers
in dealing with employees or labor organizations concerning terms and
conditions of employment, grievances, labor disputes, or other matters
incidental to the employment relationship at a place of business
maintained in the state of New York.
5. "Labor relations consultant" means any person who, for
compensation, advises or represents an employer, employer organization,
or labor organization concerning employee organizing, concerted
activities or collective bargaining activities, but shall not include a
director, officer or regular employee of such employer, employer
organization or labor organization, or an attorney engaged in the
practice of law.
6. "Officer" means any person holding or in fact performing or
authorized to perform the functions of an office named or described in
the constitution, charter, articles of incorporation, articles of
association or by-laws of a labor organization or employer organization.
7. "Agent" means any person, other than an attorney engaged in the
practice of law, who represents or is authorized to represent a labor
organization or employer organization, alone or with others in its
dealings with employers, employees, members, employer organizations,
labor organizations, or other persons, regardless of whether his
relationship to the labor organization or employer organization is that
of an independent contractor or employee.
Fiduciary obligations of officers and agents. No officer or
agent of a labor organization shall, directly or indirectly
1. Have or acquire any pecuniary or personal interest which would
conflict with his fiduciary obligation to such organization;
2. Engage in any business or financial transaction which conflicts
with his fiduciary obligation; or
3. Act in any way which subordinates the interests of such labor
organization to his own pecuniary or personal interests.
Specific prohibited financial interests and transactions. 1.
Without limiting his fiduciary obligation provided in section seven
hundred twenty-two, it shall constitute a violation of his fiduciary
obligation for an officer or agent of a labor organization:
(a) To have, directly or indirectly, any financial interest in any
business or transaction of either an employer whose employees his labor
organization represents or seeks to represent for purposes of collective
bargaining, or an employer who is in the same industry as such an
employer;
(b) To have, directly or indirectly, any financial interest in the
business or transaction of any person who sells to, buys from, or
otherwise deals with (i) an employer whose employees his labor
organization represents or seeks to represent for purposes of collective
bargaining, or (ii) an employer organization which represents such
employer, or (iii) an employer who is in the same industry as such an
employer;
(c) To have, directly or indirectly, any financial interest in the
business of any person who sells to, buys from, or otherwise deals with
his labor organization;
(d) To have, directly or indirectly, any financial interest in any
transaction with his labor organization for the purchase or sale of
property or services, except reasonable compensation for services
rendered by him to such organization as officer or agent;
(e) To receive, directly or indirectly, any payments, loans, or gifts
from (i) an employer whose employees his labor organization represents
or seeks to represent for purposes of collective bargaining, or (ii) an
employer organization which represents such employer, or (iii) an
employer who is in the same industry as such an employer; provided,
however, that such an officer or agent may receive reasonable
compensation for services rendered by him as an employee of such
employer, or payments required by collective agreement to be made in
lieu of wages for time lost from work while engaged in collective
bargaining, handling of grievances, or otherwise in the administration
of a collective agreement;
(f) To lend any funds of the labor organization, directly or
indirectly, to either any officer, agent, or employee of such
organization, or any business in which an officer, agent, or employee of
such organization has, directly or indirectly, a financial interest;
provided, however, that loans may be made from a loan fund which has
been set aside in accordance with a written resolution of the governing
board of the labor organization for the specific purpose of making
personal loans to its officers, agents, and employees generally, in
compliance with established, written rules; or
(g) To lend or invest any funds of the labor organization, directly or
indirectly, in any business of an employer whose employees his labor
organization represents or seeks to represent for purposes of collective
bargaining, except where the governing board of the labor organization
has adopted a written resolution finding and determining that such loan
or investment will promote the best interests of the employees and will
not adversely affect collective bargaining.
2. The fact that conduct or acts of an officer or agent of a labor
organization have not caused damage to such organization or any of its
members, or have been ratified or acquiesced in by such organization or
its members, shall not be relevant in determining whether such conduct
or acts constitute a violation by such officer or agent of any of the
obligations provided in section seven hundred twenty-two and in this
section.
3. Nothing contained in this section shall prohibit an officer or
agent of a labor organization from:
(a) holding a financial interest acquired as an employee through a
regularly established employee benefit plan, including a stock purchase,
profit sharing, pension or retirement plan;
(b) holding securities traded on a securities exchange registered as a
national exchange under the securities exchange act of nineteen hundred
thirty-four, or securities traded on over-the-counter markets within the
meaning of such act, or shares in an investment company registered under
the investment company act of nineteen hundred forty, or securities of a
public utility holding company registered under the public utility
holding company act of nineteen hundred thirty-five, and all federal
laws amendatory and supplemental to such acts; provided, however, that
any investment in such securities or shares shall not constitute more
than one per cent of the outstanding securities or shares of the
respective class or classes of securities or shares which he holds;
(c) lending to, or investing in, any business owned predominantly by a
labor organization or labor organizations; or
(d) receiving gifts, otherwise lawful, from employers whose employees
his labor organization represents and from employer organizations which
represent such employers, provided the cumulative retail value of such
gifts from all such employers and employer organizations does not exceed
one hundred dollars in any calendar year.
4. Nothing contained in this section shall prohibit any labor
organization from:
(a) Acquiring a nominal number of shares in any corporation for the
purpose of qualifying as stockholder in order to obtain financial
statements of the corporation; or
(b) Lending to, or investing in, any business owned predominately by a
labor organization or labor organizations.
Obligation of employers and others. No employer, employer
organization, labor relations consultant or other person shall knowingly
participate in or induce any conduct or act which violates any of the
obligations of any officer or agent of a labor organization provided in
section seven hundred twenty-three.
Enforcement of fiduciary obligations. 1. Where an officer or
agent of a labor organization has violated or is violating any of his
obligations provided in sections seven hundred twenty-two and seven
hundred twenty-three, such labor organization and the parent
organization of such labor organization shall each have the right to
bring an action or proceeding in any court of competent jurisdiction for
legal or equitable relief to redress such violation of obligation. Any
member of such labor organization shall have the right to bring such
action or proceeding if (a) after request by any member that such action
or proceeding be brought, such organization shall fail to do so, or (b)
such request would be futile, or (c) such organization has failed to
prosecute diligently any such action or proceeding which it has brought.
2. If any such action or proceeding is determined in favor of such
organization or any such member, the court may award, in addition to
other costs authorized by law, reasonable attorneys' fees and
disbursements out of any moneys awarded or funds or assets recovered in
such action or proceeding.
3. Any employer, employer organization, labor relations consultant, or
other person who knowingly participated in or induced any conduct or act
which violates any of the obligations of an officer or agent of a labor
organization provided in sections seven hundred twenty-two and seven
hundred twenty-three, shall be subject to the same liabilities and
judicial remedies as such officer or agent, including but not limited to
joint and several liability with such officer or agent for any losses
suffered by the labor organization, or any member thereof, as a result
of any such violation of obligation, and joint and several liability to
pay over to such labor organization or such member any gains or profits
made as a result of such knowing participation or inducement.
4. Each wilful and knowing violation of any of the provisions of
sections seven hundred twenty-three or seven hundred twenty-four of this
article shall constitute a misdemeanor, punishable by imprisonment for
not more than one year, or by a fine of not more than one thousand
dollars, or by both.
Financial reporting. 1. Every labor organization and employer
organization shall make available to each of its members a copy of its
annual financial report, or such portions thereof as the industrial
commissioner shall find relevant and appropriate, in such manner as the
industrial commissioner shall prescribe. The president or chief
executive officer and the treasurer or chief financial officer of the
organization personally shall be responsible for the preparation of such
report, and both shall verify such report. The officers responsible for
the preparation of reports shall be responsible for providing copies of
reports under this section.
Enforcement of financial reporting and accounting duties. 1.
Any officer, agent, or employee of any labor organization or employer
organization, or any employer or labor relations consultant who wilfully
fails or refuses to comply with any provision of sections seven hundred
twenty-six or seven hundred twenty-seven of this article shall be guilty
of a misdemeanor, punishable by imprisonment for not more than one year,
or by a fine of not more than one thousand dollars, or by both.
2. Any officer, agent, or employee of a labor organization or employer
organization, or any employer or labor relations consultant who
knowingly causes any person to fail or refuse to comply with any
provision of sections seven hundred twenty-six or seven hundred
twenty-seven of this article shall be guilty of a misdemeanor,
punishable by imprisonment for not more than one year, or by a fine of
not more than one thousand dollars, or by both.
3. Any prosecution brought under subdivisions one and two of this
section shall, in the case of a labor organization or an employer
organization, be conducted in the county where such organization has a
place of business and, in the case of an employer or labor relations
consultant, in the county where such person resides or has a place of
business; provided, however, that if such organization does not have a
place of business within the state of New York or such person has
neither a residence nor place of business within the state, the
prosecution shall be conducted in the county of Albany.
4. If any officer, agent, or employee of a labor organization or
employer organization, or any employer or labor relations consultant
fails or refuses to comply with any provision of sections seven hundred
twenty-six or seven hundred twenty-seven of this article, or causes any
person to fail or refuse to comply with the provisions of these
sections, the industrial commissioner may issue an order directing
compliance. If the order is not complied with within ten days after
issuance, there may be instituted in the name of the people of the state
a proceeding to compel compliance with these sections.
Limitation of prosecutions under this article. A prosecution
for a misdemeanor consisting of a violation of any provision of article
twenty-A of the labor law must be commenced within two years after the
facts constituting the crime have been or, in the exercise of reasonable
diligence, should have been discovered by the industrial commissioner or
by an officer or employee in the department of labor charged with the
responsibility of investigating matters reported or required to be
reported to the industrial commissioner pursuant to such article.
Rules and regulations; extensions of time. 1. The industrial
commissioner may, from time to time, promulgate, amend and rescind
appropriate rules and regulations designed to carry out the express
provisions and purposes of this article.
Construction and saving clause. 1. Nothing contained in this
article shall be construed to relieve any labor organization, employer
organization, or any of its officers, agents, employees, representatives
or members, or any employer or labor relations consultant from
compliance with any other provision of this chapter or any other
applicable law of this state.
2. Nothing contained in this article shall be construed to limit the
responsibilities or duties of any officer or agent of a labor
organization or employer organization under the common law or any law of
this state, and nothing contained in this article shall be construed to
take away or limit any right or remedy to which members of a labor
organization or employer organization are entitled under the common law
or any law of this state.
3. Nothing contained in this article shall be construed to limit or
otherwise affect the right of any person under any statute or rule of
law to organize or join labor organizations, to bargain collectively, to
picket, strike, or engage in other concerted activities for the purpose
of collective bargaining or other mutual aid and protection, or the
right of any labor organization under any statute or rule of law to
carry on such activities, nor to enlarge or otherwise affect the power
of courts to issue injunctions under section eight hundred seven of this
chapter.
Separability. If any provision of this article or the
application of such provision to any person or circumstance shall be
held invalid, the remainder of this article and the application of such
provision to persons or circumstances other than those to which it is
held invalid shall not be affected thereby.
ARTICLE 20-B Psychological Stress Evaluators and Employment
Definitions. As used in this article:
1. "Employer" means any individual, person, corporation, department,
board, bureau, agency, commission, division, office, council or
committee of the state government, public benefit corporation, public
authority or political subdivision of the state, or other business
entity, which employs or seeks to employ an individual or individuals.
All provisions of this article pertaining to employers shall apply in
equal force and effect to their agents and representatives.
2. "Employee" means an individual employed by an employer.
3. "Prospective employee" means an individual seeking or being sought
for employment with an employer.
4. "Psychological stress evaluator" means any mechanical device or
instrument which purports to determine the truth or falsity of
statements made by an employee or prospective employee on the basis of
vocal fluctuations or vocal stress.
5. "Psychological stress evaluator examination" means:
(a) the questioning or interviewing of an employee or prospective
employee for the purpose of subjecting the statements of such employee
or prospective employee to analysis by a psychological stress evaluator;
(b) the recording of statements made by an employee or prospective
employee for the purpose of subjecting such statements to analysis by a
psychological stress evaluator; or
(c) analyzing, with a psychological stress evaluator, statements made
by an employee or prospective employee for the purpose of determining
the truth or falsity of such statements.
Practitioner limitations. 1. It shall be unlawful for any
individual to knowingly administer or participate in the administration
of a psychological stress evaluator examination of an employee or
prospective employee as defined in section seven hundred thirty-three of
this chapter.
2. Any individual violating any of the provisions of this section
shall be guilty of a class B misdemeanor upon the first conviction and
upon any subsequent convictions shall be guilty of a class A
misdemeanor.
Employer limitations. 1. No employer or his agent shall
require, request, suggest or knowingly permit any employee or
prospective employee of such employer to submit to a psychological
stress evaluator examination and no employer shall administer or utilize
the results of such test within or without the state of New York for any
reason whatsoever.
2. A violation of any of the provisions of this section shall be a
class B misdemeanor upon the first conviction and upon any subsequent
conviction a class A misdemeanor.
Employee rights in related proceedings. No employee shall be
discharged, disciplined or discriminated against in any manner for
filing a complaint or testifying in any proceeding or action involving
violations of the provisions of this article. Any employee discriminated
against in violation of the provisions of this section shall be
compensated by his employer for double the amount of any loss of wages
and benefits arising out of such discrimination and shall be restored to
his previous position of employment.
Supplemental provisions. No individual shall administer or
participate in the administration of a psychological stress evaluator
examination within the state to any individual seeking employment
outside the state of New York or for the purpose of continuing
employment outside the state of New York. Any individual violating the
provisions of this section shall be guilty of a class B misdemeanor upon
first conviction and upon any subsequent convictions shall be guilty of
a class A misdemeanor.
Actions for damages. Any employee or prospective employee
damaged as the result of a violation of any of the provisions of this
article shall be entitled to file an action for damages in the supreme
court of this state.
Applicability of article. This article shall only apply to
employee and prospective employee-employer relations.
ARTICLE 20-C Retaliatory Action By Employers
Retaliatory action by employers; prohibition. 1. Definitions.
For purposes of this section, unless the context specifically indicates
otherwise:
(a) "Employee" means an individual who performs services for and under
the control and direction of an employer for wages or other
remuneration, including former employees, or natural persons employed as
independent contractors to carry out work in furtherance of an
employer's business enterprise who are not themselves employers.
(b) "Employer" means any person, firm, partnership, institution,
corporation, or association that employs one or more employees.
(c) "Law, rule or regulation" includes: (i) any duly enacted federal,
state or local statute or ordinance or executive order; (ii) any rule or
regulation promulgated pursuant to such statute or ordinance or
executive order; or (iii) any judicial or administrative decision,
ruling or order.
(d) "Public body" includes the following:
(i) the United States Congress, any state legislature, or any elected
local governmental body, or any member or employee thereof;
(ii) any federal, state, or local court, or any member or employee
thereof, or any grand or petit jury;
(iii) any federal, state, or local regulatory, administrative, or
public agency or authority, or instrumentality thereof;
(iv) any federal, state, or local law enforcement agency,
prosecutorial office, or police or peace officer;
(v) any federal, state or local department of an executive branch of
government; or
(vi) any division, board, bureau, office, committee, or commission of
any of the public bodies described in subparagraphs (i) through (v) of
this paragraph.
(e) "Retaliatory action" means an adverse action taken by an employer
or his or her agent to discharge, threaten, penalize, or in any other
manner discriminate against any employee or former employee exercising
his or her rights under this section, including (i) adverse employment
actions or threats to take such adverse employment actions against an
employee in the terms of conditions of employment including but not
limited to discharge, suspension, or demotion; (ii) actions or threats
to take such actions that would adversely impact a former employee's
current or future employment; or (iii) threatening to contact or
contacting United States immigration authorities or otherwise reporting
or threatening to report an employee's suspected citizenship or
immigration status or the suspected citizenship or immigration status of
an employee's family or household member, as defined in subdivision two
of section four hundred fifty-nine-a of the social services law, to a
federal, state, or local agency.
(f) "Supervisor" means any individual within an employer's
organization who has the authority to direct and control the work
performance of the affected employee; or who has managerial authority to
take corrective action regarding the violation of the law, rule or
regulation of which the employee complains.
2. Prohibitions. An employer shall not take any retaliatory action
against an employee, whether or not within the scope of the employee's
job duties, because such employee does any of the following:
(a) discloses, or threatens to disclose to a supervisor or to a public
body an activity, policy or practice of the employer that the employee
reasonably believes is in violation of law, rule or regulation or that
the employee reasonably believes poses a substantial and specific danger
to the public health or safety;
(b) provides information to, or testifies before, any public body
conducting an investigation, hearing or inquiry into any such activity,
policy or practice by such employer; or
(c) objects to, or refuses to participate in any such activity, policy
or practice.
3. Application. The protection against retaliatory action provided by
paragraph (a) of subdivision two of this section pertaining to
disclosure to a public body shall not apply to an employee who makes
such disclosure to a public body unless the employee has made a good
faith effort to notify his or her employer by bringing the activity,
policy or practice to the attention of a supervisor of the employer and
has afforded such employer a reasonable opportunity to correct such
activity, policy or practice. Such employer notification shall not be
required where: (a) there is an imminent and serious danger to the
public health or safety; (b) the employee reasonably believes that
reporting to the supervisor would result in a destruction of evidence or
other concealment of the activity, policy or practice; (c) such
activity, policy or practice could reasonably be expected to lead to
endangering the welfare of a minor; (d) the employee reasonably believes
that reporting to the supervisor would result in physical harm to the
employee or any other person; or (e) the employee reasonably believes
that the supervisor is already aware of the activity, policy or practice
and will not correct such activity, policy or practice.
4. Violation; remedy. (a) An employee who has been the subject of a
retaliatory action in violation of this section may institute a civil
action in a court of competent jurisdiction for relief as set forth in
subdivision five of this section within two years after the alleged
retaliatory action was taken.
(b) Any action authorized by this section may be brought in the county
in which the alleged retaliatory action occurred, in the county in which
the complainant resides, or in the county in which the employer has its
principal place of business. In any such action, the parties shall be
entitled to a jury trial.
(c) It shall be a defense to any action brought pursuant to this
section that the retaliatory action was predicated upon grounds other
than the employee's exercise of any rights protected by this section.
5. Relief. In any action brought pursuant to subdivision four of this
section, the court may order relief as follows:
(a) an injunction to restrain continued violation of this section;
(b) the reinstatement of the employee to the same position held before
the retaliatory action, or to an equivalent position, or front pay in
lieu thereof;
(c) the reinstatement of full fringe benefits and seniority rights;
(d) the compensation for lost wages, benefits and other remuneration;
(e) the payment by the employer of reasonable costs, disbursements,
and attorney's fees;
(f) a civil penalty of an amount not to exceed ten thousand dollars;
and/or
(g) the payment by the employer of punitive damages, if the violation
was willful, malicious or wanton.
6. Employer relief. A court, in its discretion, may also order that
reasonable attorneys' fees and court costs and disbursements be awarded
to an employer if the court determines that an action brought by an
employee under this section was without basis in law or in fact.
7. Existing rights. Nothing in this section shall be deemed to
diminish the rights, privileges, or remedies of any employee under any
other law or regulation or under any collective bargaining agreement or
employment contract.
8. Publication. Every employer shall inform employees of their
protections, rights and obligations under this section, by posting a
notice thereof. Such notices shall be posted conspicuously in easily
accessible and well-lighted places customarily frequented by employees
and applicants for employment.
Prohibition; health care employer who penalizes employees
because of complaints of employer violations. 1. Definitions. As used in
this section, the following terms shall have the following meanings:
(a) "Employee" means any person who performs health care services for
and under the control and direction of any public or private employer
which provides health care services for wages or other remuneration.
(b) "Employer" means any partnership, association, corporation, the
state, or any political subdivision of the state which: (i) provides
health care services in a facility licensed pursuant to article
twenty-eight or thirty-six of the public health law; (ii) provides
health care services within a primary or secondary public or private
school or public or private university setting; (iii) operates and
provides health care services under the mental hygiene law or the
correction law; or (iv) is registered with the department of education
pursuant to section sixty-eight hundred eight of the education law.
(c) "Agent" means any individual, partnership, association,
corporation, or group of persons acting on behalf of an employer.
(d) "Improper quality of patient care" means, with respect to patient
care, any practice, procedure, action or failure to act of an employer
which violates any law, rule, regulation or declaratory ruling adopted
pursuant to law, where such violation relates to matters which may
present a substantial and specific danger to public health or safety or
a significant threat to the health of a specific patient.
(e) "Improper quality of workplace safety" means, with respect to
employees, any practice, procedure, action or failure to act of an
employer which violates any law, rule, regulation, or declaratory ruling
adopted pursuant to law where such violation relates to matters which
may present an unsafe workplace environment or risk of employee safety
or a significant threat to the health of a specific employee.
(f) "Public body" means:
(1) the United States Congress, any state legislature, or any elected
local governmental body, or any member or employee thereof;
(2) any federal, state or local court, or any member or employee
thereof, any grand or petit jury;
(3) any federal, state or local regulatory, administrative or public
agency or authority, or instrumentality thereof;
(4) any federal, state or local law enforcement agency, prosecutorial
office, or police or peace officer;
(5) any federal, state or local department of an executive branch of
government; or
(6) any division, board, bureau, office, committee or commission of
any of the public bodies described in subparagraph one, two, three, four
or five of this paragraph.
(g) "Retaliatory action" means the discharge, suspension, demotion,
penalization or discrimination against an employee, or other adverse
employment action taken against an employee in the terms and conditions
of employment.
(h) "Supervisor" means any person within an employer's organization
who has the authority to direct and control the work performance of an
employee, or who has the authority to take corrective action regarding
the violation of a law, rule or regulation to which an employee submits
a complaint.
2. Retaliatory action prohibited. Notwithstanding any other provision
of law, no employer shall take retaliatory action against any employee
because the employee does any of the following:
(a) discloses or threatens to disclose to a supervisor, to a public
body, to a news media outlet, or to a social media forum available to
the public at large, an activity, policy or practice of the employer or
agent that the employee, in good faith, reasonably believes constitutes
improper quality of patient care or improper quality of workplace
safety; or
(b) objects to, or refuses to participate in any activity, policy or
practice of the employer or agent that the employee, in good faith,
reasonably believes constitutes improper quality of patient care or
improper quality of workplace safety.
3. Application. The protection against retaliatory personnel action
provided by subdivision two of this section shall not apply unless the
employee has brought the improper quality of patient care or improper
quality of workplace safety to the attention of a supervisor and has
afforded the employer a reasonable opportunity to correct such activity,
policy or practice. This subdivision shall not apply to an action or
failure to act described in paragraph (a) of subdivision two of this
section where the improper quality of patient care or improper quality
of workplace safety described therein presents an imminent threat to
public health or safety or to the health of a specific patient or
specific health care employee and the employee reasonably believes in
good faith that reporting to a supervisor would not result in corrective
action.
4. Enforcement. A health care employee may seek enforcement of this
section pursuant to subdivisions four and five of section seven hundred
forty of this article.
5. Relief. In any court action brought pursuant to this section it
shall be a defense that the personnel action was predicated upon grounds
other than the employee's exercise of any rights protected by this
section.
6. Publication. Every employer shall inform employees of their
protections, rights and obligations under this section by posting a
notice thereof. Such notices shall be posted conspicuously in easily
accessible and well-lighted places customarily frequented by employees
and applicants for employment.
ARTICLE 21 New York Call Center Jobs Act
Definitions. As used in this article:
1. The term "call center" means a facility or other operation whereby
employees receive phone calls or other electronic communication for the
purpose of providing customer assistance.
2. (a) The term "call center employer" means any business entity that
employs fifty or more employees, excluding part-time employees; or fifty
or more employees that in the aggregate work at least fifteen hundred
hours per week, excluding overtime hours, for the purpose of staffing a
call center.
(b) The term "part-time employee" means an employee who is employed
for an average of fewer than twenty hours per week or who has been
employed for fewer than six of the twelve months preceding the date on
which notice is required under this article.
(c) The term "tax credit" means any of the following tax credits
allowed under the tax law: recovery tax credit, tax-free New York area
tax elimination credit, minimum wage reimbursement credit, empire state
jobs retention program credit, economic transformation and facility
redevelopment program tax credit, excelsior jobs program credit,
employee training incentive program tax credit, empire state
apprenticeship program tax credit, and employment incentive tax credit.
List of relocated call centers. 1. A call center employer that
intends to relocate a call center or more than thirty percent of a call
center's employees measured as the employment level of the previous
calendar month compared to the average employment level at such site
over the previous twelve months, from New York state to a foreign
country shall notify the commissioner at least ninety days before such
relocation.
2. A call center employer that violates subdivision one of this
section shall be subject to a civil penalty not to exceed ten thousand
dollars for each day of such violation, except that the commissioner may
reduce such amount for just cause shown.
3. The commissioner shall compile an annual list of all call center
employers that relocate pursuant to subdivision one of this section, and
such list shall be made available to the public and shall prominently
display a link to the list on the department's website. The commissioner
shall provide a copy of such list to the commissioner of taxation and
finance.
Grants, guaranteed loans and tax benefits. 1. Except as
provided in subdivision four of this section and notwithstanding any
other provision of law, a call center employer that appears on the list
described in section seven hundred seventy-one of this article shall be
ineligible to enter into any agreements for any state grants or state
guaranteed loans for a period of five years from the date such list is
published.
2. Except as provided in subdivision four of this section and
notwithstanding any other provision of law, a call center employer that
appears on the list described in section seven hundred seventy-one of
this article shall remit the unamortized value of any state grant or
state guaranteed loans it has previously received for the call center
appearing on the list, if the agreement for such grants and loans was
entered into after the effective date of this article. Nothing in this
subdivision shall be deemed to prevent the call center employer from
receiving any grant to provide training or other employment assistance
to individuals who are selected as being in particular need of training
or other employment assistance due to the transfer or relocation of the
call center employer's facility or operating units.
3. Except as provided in subdivision four of this section and
notwithstanding any other provision of law, a call center employer that
appears on the list described in section seven hundred seventy-one of
this article shall not be allowed any tax credit described in
subdivision (c) of section seven hundred seventy of this article for the
five taxable years, excluding short taxable years, immediately
succeeding the taxable year in which the call center first appears on
such list, if the agreement for such tax credit was entered into after
the effective date of this article.
4. The commissioner, in consultation with the appropriate agency
providing a loan, grant or tax credit may waive the requirement provided
under subdivision one, two or three of this section if the call center
employer demonstrates that such requirement would:
(a) threaten state or national security;
(b) result in substantial actual or potential job loss in the state of
New York; or
(c) harm the environment.
If the commissioner waives such requirement, such commissioner shall
promptly notify the commissioner of taxation and finance of such waiver.
Procurement contracts. The head of each state agency shall use
reasonable best efforts to ensure that all state-business-related
contracts for call center and customer service work be performed by
state contractors or other agents or subcontractors entirely within the
state of New York. Presence on the list described in section seven
hundred seventy-one of this article shall be considered a negative
indication of ability to maintain jobs in the state as part of any
vendor responsibility analysis.
State benefits for workers. No provision of this article shall
be construed to permit withholding or denial of payments, compensation,
or benefits under any other state law, including but not limited to
state unemployment compensation, disability payments or worker
retraining or readjustment funds, to workers employed by call center
employers that relocate to a foreign country.
No private right of action. Nothing set forth in this article
shall be construed as creating, establishing, or authorizing a private
cause of action by an aggrieved person against a call center employer
who has violated, or is alleged to have violated, any provision of this
article.
Regulations. The commissioner shall promulgate such rules and
regulations as shall be necessary and proper to effectuate the purposes
and provisions of this article.
ARTICLE 21-A Warehouse Worker Protection Act
Definitions. As used in this article:
1. "Defined time period" means any unit of time measurement equal to
or less than the duration of an employee's shift, and includes hours,
minutes, and seconds and any fraction thereof.
2. "Employee" means an employee who is not exempt from the minimum
wage and any overtime compensation provisions of this chapter and any
applicable minimum wage orders and who works at a warehouse distribution
center and is subject to a quota as defined in this section; provided,
however, that "employee" does not include a driver or courier to or from
a warehouse distribution center.
3. (a) "Employee work speed data" means information an employer
collects, stores, analyzes, or interprets relating to an individual
employee's performance of a quota, including, but not limited to,
quantities of tasks performed, quantities of items or materials handled
or produced, rates or speeds of tasks performed, measurements or metrics
of employee performance in relation to a quota, and time categorized as
performing tasks or not performing tasks.
(b) "Aggregated work speed data" means a compilation of employee work
speed data for multiple employees, in summary form, assembled in full or
in another form such that the data cannot be identified with any
individual.
4. "Employer" means a person who directly or indirectly, or through an
agent or any other person, including through the services of a
third-party employer, temporary services, or staffing agency,
independent contractor, or any similar entity, employs or exercises
control over the wages, hours, or working conditions of one hundred or
more employees at a single warehouse distribution center or one thousand
or more employees at one or more warehouse distribution centers in the
state.
For the purposes of this definition, all employees of a controlled
group of corporations shall be counted in determining the number of
employees employed at a single warehouse distribution center or at one
or more warehouse distribution centers in the state.
5. "Person" means an individual, corporation, partnership, limited
partnership, limited liability partnership, limited liability company,
business trust, estate, trust, association, joint venture, agency,
instrumentality, or any other legal or commercial entity, whether
domestic or foreign.
6. "Quota" means a work standard which:
(a) an employee is assigned or required to perform: at a specified
productivity speed; or a quantified number of tasks, or to handle or
produce a quantified amount of material, within a defined time period;
or under which the employee may suffer an adverse employment action if
they fail to complete the performance standard.
(b) an employee's actions are categorized between time performing
tasks and not performing tasks, and the employee's failure to complete a
task performance standard or recommendation may have an adverse impact
on the employee's continued employment or the conditions of such
employment.
7. "Warehouse distribution center" means an establishment as defined
by any of the following North American industry classification system
("NAICS") codes, however such establishment is denominated:
(a) four hundred ninety-three for warehousing and storage but does not
include four hundred ninety-three thousand one hundred thirty for farm
product warehousing and storage;
(b) four hundred twenty-three for merchant wholesalers, durable goods;
(c) four hundred twenty-four for merchant wholesalers, nondurable
goods;
(d) four hundred fifty-four thousand one hundred ten for electronic
shopping and mail-order houses; or
(e) four hundred ninety-two thousand one hundred ten for couriers and
express delivery services.
8. "Work-related musculoskeletal disorders" means work-related
conditions (injuries, illness or disorders) of the muscles, nerves,
tendons, ligaments, joints, cartilage of the body's musculoskeletal
system including the muscles, nerves, tendons, ligaments, joints,
cartilage and spinal discs of the upper and lower limbs, neck,
shoulders, and back that: (a) are the result of an exposure in the work
environment during the performance of work that either causes or
contributes significantly to the resulting condition or makes worse or
longer-lasting a pre-existing condition; (b) are caused by ergonomic
risk factors that include, but are not limited to, rapid pace, forceful
exertions, extreme or static postures, repetitive motions, direct
pressure, contact stress, vibration or cold temperatures; or (c) are not
the result of any instantaneous non-exertion event, such as slips,
trips, or falls.
9. "Competent person" shall mean one capable of performing a job
hazard assessment to identify and assess existing and predictable
ergonomic risk factors in work activities that are a core element of an
employee's job or a significant part of the workday that are harmful to
employees and reasonably likely to cause or contribute to
musculoskeletal disorders. A competent person shall include ergonomists,
industrial hygienists, certified safety professionals, or other health
and safety professionals who, by possession of a recognized advanced
academic degree, certificate, or professional standing or who by
extensive knowledge, training, and experience has successfully
demonstrated the ability to manage workplace injury risk.
Quotas. Each employer shall provide to each employee, upon
hire, or within thirty days of the effective date of this article, a
written description of each quota to which the employee is subject,
including the quantified number of tasks to be performed or materials to
be produced or handled, within the defined time period, and any
potential adverse employment action that could result from failure to
meet the quota. Each time the quota changes thereafter, the employer
shall provide an updated written description of each quota to which the
employee is subject within two business days of such quota change. Each
time an employer takes an adverse employment action against an employee,
the employer shall provide that employee with the applicable quota for
the employee. The employer must provide the written description of any
quota pursuant to this section in English and in the language identified
by each employee as the primary language of such employee.
Protection from quotas. An employee shall not be required to
meet a quota that prevents compliance with meal or rest periods or use
of bathroom facilities, including reasonable travel time to and from
bathroom facilities. An employer shall not take adverse employment
action against an employee for failure to meet a quota that does not
allow a worker to comply with meal and rest periods or for failure to
meet a quota that has not been disclosed to the employee pursuant to
section seven hundred eighty-one of this article.
Time on task. Consistent with existing law, paid and unpaid
breaks shall not be considered productive time for the purpose of any
quota or monitoring system unless the employee is required to remain on
call.
Recordkeeping. 1. Each employer shall establish, maintain, and
preserve for three years contemporaneous, true, and accurate records to
ensure compliance with employee or commissioner requests for data.
Right to request. 1. A current employee has the right to
request a written description of each quota to which the employee is
subject. If a current or former employee believes that they have been
disciplined as the result of failing to meet a quota, or that meeting a
quota caused a violation of their right to a meal or rest period or use
of bathroom facilities, including reasonable travel time to and from
bathroom facilities, they have the right to request, and the employer
shall provide, a written description of each quota to which the employee
is subject, a copy of the most recent ninety days of the employee's own
personal work speed data, and a copy of the aggregate work speed data
for similar employees at the same establishment for the same time
period.
2. Such requested records pursuant to this section shall be provided
at no cost to the current or former employee. A former employee is
limited to one request pursuant to this section.
3. An employer that receives a written or oral request for information
pursuant to this section shall comply with the request as soon as
practicable, but no later than fourteen calendar days from the date of
the request.
4. Nothing in this section shall require an employer to use quotas as
defined in this article or monitor work speed data. An employer that
does not monitor this data has no obligation to provide it.
5. The employer must provide the requested written description of any
quota and personal work speed data pursuant to this section in English
and in the language identified by each employee as the primary language
of such employee.
Unlawful retaliation. For purposes of this article, there shall
be a rebuttable presumption of unlawful retaliation if an employer in
any manner discriminates, retaliates, or takes any adverse action
against any employee within ninety days of the employee doing either of
the following:
1. Initiating the employee's first request in a calendar year for
information about a quota or personal work speed data pursuant to
subdivisions one through three of section seven hundred eighty-five of
this article.
2. Making a complaint related to a quota alleging any violation of
sections seven hundred eighty-one to seven hundred eighty-five of this
article, inclusive, to the commissioner, the department, other local or
state governmental agency, or the employer.
3. Making a complaint related to section seven hundred eighty-nine of
this article.
Enforcement. The commissioner may adopt rules and regulations
implementing the provisions of this article. The commissioner shall be
authorized to enforce the provisions of this article and to assess civil
penalties as provided in sections two hundred fifteen and two hundred
eighteen of this chapter. The civil penalties provided for in this
section shall be in addition to and may be imposed concurrently with any
other remedy or penalty provided for in this chapter.
Other powers. The attorney general, either upon his or her own
complaint or the complaint of any person acting for themselves or the
general public, has the authority to prosecute actions, either civil or
criminal, for violations of this article, or to enforce the provisions
thereof independently and without specific direction of the
commissioner.
Injury reduction program. 1. Every employer subject to this
section shall establish and implement an injury reduction program
designed to identify and minimize the risks of work-related
musculoskeletal disorders among workers involved in performing manual
materials handling tasks. The program shall include: worksite
evaluation; control of exposures, including ergonomic risk factors such
as pace, which have caused or have the potential to cause work-related
musculoskeletal disorders; employee training; on-site medical and first
aid practices; and employee involvement.
2. The employer shall ensure that each job, process, shift or
operation of work activity covered by this section or a representative
number of such jobs, processes, shifts or operations of identical work
activities shall be addressed by its injury reduction program. Unless
otherwise exempted under this act, the employer shall have a written
work site evaluation by a competent person for risk factors which have
or are likely to cause work-related musculoskeletal disorders. Such risk
factors shall include, but are not limited to, rapid pace, forceful
exertions, extreme or static postures, repetitive motions, direct
pressure, contact stress, vibration, or cold temperatures that had
caused or are likely to cause work-related musculoskeletal disorders.
(a) Any worksite evaluations shall also determine whether any
employees exposed to such risk factors are subject to either personnel
action with the potential for adverse action, or adverse action or
termination themselves, arising in whole or in part from an employer's
use of quotas to determine employee assignments.
(b) All such worksite evaluations shall incorporate input from workers
who regularly perform those jobs, either directly or through an
employee-led workplace safety committee, on the possible risk factors
and any workplace changes that can reduce such risk factors.
(c) Copies of such worksite evaluations shall be made available to
workers and their representatives upon request, at no cost, within one
business day of such request. Workers and their representatives shall be
notified in writing of the results of the worksite evaluation. Employers
shall maintain accessible copies of such evaluations at locations within
the warehouse and shall make such copies readily available to workers.
(d) An initial worksite evaluation shall be conducted. Worksite
evaluations shall be reviewed and updated at least annually. A new
analysis of risk factors shall be conducted in accordance with the
provisions of subdivision one of this section whenever a new job,
process, or operation is introduced which could increase the risk
factors for work-related musculoskeletal disorders. Such new analysis
shall be conducted within thirty days of the creation or change of a
job, process or operation.
(e) A worksite evaluation must be reviewed by a board certified
ergonomist when an employee-led workplace safety committee makes a
written request to the employer based upon a material concern related to
the findings of a competent person. Where there is no active
employee-led workplace safety committee, a worksite evaluation must be
reviewed by a board certified ergonomist when any employee-led committee
makes a formal recommendation based upon a material concern related to
the findings of a competent person.
3. The employer shall correct in a timely manner any risk factors
identified as having caused or being likely to cause work-related
musculoskeletal disorders. For any corrections which require more than
thirty days to complete, the employer shall revise, as needed, and
provide a schedule for such proposed corrections. Such schedule shall be
included in the evaluations provided to workers and their
representatives.
(a) Where the employer demonstrates that it is unable to eliminate
identified risk factors, the employer shall minimize the exposures to
the extent feasible.
(b) In reducing risk factors, the employer shall consider:
(i) engineering controls and redesigning work stations to change
shelving heights, provide adjustable fixtures or tool redesign; and
(ii) administrative controls, such as job rotation which reduces the
exposure to risk factors, reduced work pacing or additional work breaks.
(c) Employers shall maintain records of steps taken to eliminate or
reduce risk factors and shall make copies available to workers and their
representatives upon request.
4. All employers covered by this section shall provide injury
reduction training to all employees involved in performing manual
materials handling jobs and tasks at the warehouse during normal work
hours and without suffering a loss of pay. Such training shall be
provided in a language and vocabulary that the workers understand and
shall be repeated annually. The training shall also be provided to the
workers' supervisors. Such training shall be in addition to any training
received in accordance with section twenty-seven-d of this chapter and
shall include:
(a) The early symptoms of work-related musculoskeletal disorders and
the importance of early detection;
(b) Musculoskeletal disorder ergonomic risk factors and exposures at
work, including the hazards posed by excessive rates of work;
(c) Methods to reduce risk factors for musculoskeletal disorders,
including both engineering controls and administrative controls, such as
limitations on work pace and increased scheduled and unscheduled breaks;
(d) The employer's program to identify risk factors as required under
this section and prevent work-related musculoskeletal disorders,
including the summary protocols for medical treatment approved by the
employer's medical consultant;
(e) The rights and function of workplace safety committees established
under section twenty-seven-d of this chapter and the rights of employees
to report any risk factors, other hazards, injuries or health and safety
concerns; and
(f) Training on the unlawful retaliation of any provision in this
section, including a reference to the employer's policy requiring
disciplinary actions when supervisors or managers violate the law or
policy, as well as the employer's policy prohibiting any workplace
discrimination.
5. Any on-site location that staffs a medical professional to treat
workers in warehouses covered by this section for symptoms of
work-related musculoskeletal disorders shall be staffed with medical
professionals operating within their legal scope of practice. Nothing in
this section shall infringe on the rights of workers under the opening
paragraph of subdivision (a) of section thirteen of the workers'
compensation law to either select an authorized physician to treat
employees and render medical care or to select the continuance of any
medical treatment or care by an authorized physician selected by the
employee. All examinations and treatments by any medical personnel
employed or selected by the employer under section seven hundred
eighty-one of this article shall be performed for the purposes of the
injury reduction program and shall not interfere with the rights of
employees to receive any medical treatment or any other benefits under
the workers' compensation law.
(a) Employers shall ensure that staffing and the practice of any first
aid or medical station meets state requirements for physician
supervision of nurses, emergency medical technicians or other
non-physician personnel.
(b) In all warehouses with on-site medical or first aid providers for
the treatment of work-related musculoskeletal disorders, the employer
shall consult with a medical consultant who is licensed by New York
state and board certified in occupational medicine.
(i) The employer shall obtain from the medical consultant a written
evaluation of the on-site medical or first aid provider program and
protocols followed in the warehouse for identification and treatment of
work-related musculoskeletal disorders and shall include recommendations
to ensure compliance with accepted medical practice of the staffing,
supervision and documentation of medical treatment protocols.
(ii) The employer shall obtain from the medical consultant a summary
of treatment protocols suitable for worker patients covering all aspects
of the on-site medical and first aid practices, from early detection of
work-related musculoskeletal disorders through evaluation by a qualified
physician and physician provision of appropriate work restrictions in
languages understood by the employees.
(iii) The employer shall ensure that the medical consultant reviews
the previous medical consultant evaluation, related materials and
protocols on an annual basis, and recommends changes as appropriate.
(iv) The employer shall ensure that all designated medical and first
aid providers have observed, in person, the jobs involving manual
materials handling within the warehouse and all risk factors identified
in the evaluation conducted under the medical consultant evaluation.
(c) There shall be no delays in the provision of adequate medical care
to workers who report injuries to the on-site medical services.
(d) Each employer shall ensure that no supervisory or managerial
employee or other person discriminates or retaliates against any
current, former, or prospective employee or other person for reporting a
work-related injury or illness, or health and safety concern.
6. Employers shall ensure that employees and their designated
representatives are consulted both before and during the development and
implementation of all aspects of the program. Where employees have
established a workplace safety committee in compliance with section
twenty-seven-d of this chapter, the employer shall ensure that the
committee is consulted regarding the development and implementation of
all aspects of the injury reduction program. Any record created by the
employer according to this section shall be provided to the workplace
safety committee prior to consultation. All ergonomic safety documents
provided to employees shall be provided in writing in English and in the
language identified by each employee as the primary language of such
employee. If, prior to the effective date of this section, an employer
has formed workplace safety committees in the State of New York through
collective bargaining that is currently active, and continuously
maintains such safety committees in conjunction with an injury
prevention program that fully complies with the federal Occupational
Safety and Health Act, then such employer may instead allow an
employee-led workplace safety committee to review or conduct any
worksite evaluations performed by a competent person. Such injury
prevention program must be reviewed by a board certified ergonomist
where an employee-led workplace safety committee makes a written request
to the employer based upon a material concern related to the findings of
a competent person. Where there is no active employee-led workplace
safety committee, a worksite evaluation must be reviewed by a board
certified ergonomist when any employee-led committee makes a written
request to the employer based upon a material concern related to the
findings of a competent person. Such review must be commenced within
thirty days of receipt of such written request. Copies of revised or new
worksite evaluations shall be made available to workers and their
representatives, at no cost, upon request upon completion of such
worksite evaluation.
ARTICLE 21-B Protection of Call Center Workers From Displacement
Definitions. As used in this article:
1. The term "call center" means a facility or other operation in which
employees receive phone calls or other communications, including
electronic communications for the purpose of providing customer
assistance or for related services supportive of business processes.
2. The term "call center contract" means a contract with a
governmental body, or a subcontract with an entity that has a contract
with a governmental body, pursuant to which the contractor furnishes
call center services for the benefit of the governmental body.
3. The term "governmental body" means the state of New York and any
public authority or public benefit corporation in the state of New York.
4. The term "call center employee" means any person employed to
perform call center services who has been regularly assigned to such
work for a call center contractor on a full or part-time basis for at
least ninety days, except for (a) persons whose work for a call center
is managerial or supervisory; and (b) persons regularly scheduled to
work fewer than four hours per week for the call center.
5. The term "entity" means a person, partnership, proprietorship,
association, limited liability company, trust, corporation, firm, joint
venture or enterprise of any kind.
6. The term "call center contractor" means an entity (a) that is a
party to a call center contract, and (b) provides call center services
for the benefit of a governmental body, and (c) employs call center
employees or engages a subcontractor or other entity to perform such
call center services and that entity employs call center employees.
7. The term "terminating call center contractor" means an entity that
has provided services as a call center contractor pursuant to a call
center contract which is being terminated.
8. The term "former call center contractor" means an entity that
provided services as a call center contractor pursuant to a call center
contract which has been terminated, and after termination of that
contractor, a successor call center contractor has performed some or all
of the same services pursuant to a call center contract.
9. The term "successor call center contractor" means an entity that,
pursuant to a call center service contract, succeeds to the performance
of call center services previously performed by a terminating call
center contractor.
Terminated call center contract. 1. Before termination of a
call center contract in circumstances where a successor call center
contractor will undertake to provide services that were the subject of
the terminating contract, the terminating call center contractor shall
provide to the successor call center contractor, upon the request of a
successor contractor, a full and accurate list containing the name,
address, date of hire and employment classification of each call center
employee whose work includes providing call center services that were
the subject of the terminating contract.
2. Upon termination of a call service contract in circumstances in
which services provided under that contract will be performed by a
successor call center contractor, the successor call center contractor
may retain those call center employees who performed such services for
the former call center contractor immediately prior to termination of
that contract. It may be considered a material term of the call center
contract that such employees shall be retained for a ninety-day
transition employment period.
3. If the successor call center contractor determines that fewer call
center employees are required to perform the services that are the
subject of the contract than had been required to perform such services
by the former call center contractor, the successor call center
contractor may fill the positions that it determines are needed with the
call center employees with the greatest seniority within job
classification; provided, that during the ninety-day transition period,
the successor call center contractor may maintain a preferential hiring
list of those call center employees not retained, and those on the
preferential hiring list may be given a right of first refusal to any
jobs within their classifications that become available during that
period.
4. Except as provided in subdivision three of this section, during the
ninety-day transition period, the successor call center contractor shall
not discharge without cause a call center employee retained pursuant to
this article.
5. At the end of the ninety-day transition period, the successor call
center contractor shall perform a performance evaluation for each call
center employee retained pursuant to this article. If such employee's
performance during the ninety-day transition period is satisfactory, the
successor call center contractor shall offer such employee continued
employment.
6. If the successor call center contractor engages a subcontractor or
other entity to perform call center services provided for in a successor
call center contract, that successor call center contractor shall
require the subcontractor or other entity to adhere to all of the
obligations of this article.
Entering into a call center contract. 1. Whenever a
governmental body shall undertake to procure call center services using
a call center contractor, the governmental body may require that the
call center contract with such entity includes the obligation pursuant
to this article to retain call center employees of the former call
center contractor.
2. A governmental body intending to enter into a call center service
contract, in circumstances in which such services had theretofore been
performed by call center employees pursuant to a call center contract,
may require any entity seeking to enter into such contract to
demonstrate that it will establish the worksite for its performance in a
location which is reasonably accessible to the employees who have been
performing such services prior to the solicitation of bids for a
successor call center contract. For the purposes of this section, a
worksite shall be considered reasonably accessible if it is 10 miles or
less from the location of the affected employees' worksite where such
employees performed work-related duties in the course of their
employment for the former call center contractor, provided that any
worksite shall not include an employee's domicile, permanent or
temporary, where an employee performs any work-related duty in the
course of their employment. The requirements of this subdivision shall
not apply to successor call center contractors that intend for the
work-related duties of the affected call center employees previously
employed by the former call center contractor to be performed remotely.
No conflict with collective bargaining agreements. The
provisions of this article shall not apply to any:
1. Successor call center contractor that, on or before the effective
date of a termination of a call center contract, agrees to assume, or to
be bound by, the collective bargaining agreement of the former call
center contractor, provided that the collective bargaining agreement
provides terms and conditions for the discharge or laying off of
employees that are at least as protective of employee rights as those
pursuant to this article; and
2. Successor call center contractor whose call center employees will
be accreted to a bargaining unit with a pre-existing collective
bargaining agreement, provided that the collective bargaining agreement
provides terms and conditions for the discharge or laying off of
employees that are at least as protective of employee rights as those
pursuant to this article; and
3. Former call center contractor that obtains a written commitment
from a successor call center contractor that the successor call center
contractor's call center employees will be covered by a collective
bargaining agreement that provides terms and conditions for the
discharge or laying off of employees that are at least as protective of
employee rights as those pursuant to this article.
ARTICLE 22 Boards of Inquiry In Labor Disputes
Boards of inquiry in labor disputes. Where any strike, lockout,
or other labor dispute exists or is apprehended, the commissioner, for
the purpose of inquiring into the causes and circumstances of the
dispute may, if he thinks fit, refer any matters appearing to him to be
connected with or relevant to the dispute to a board of inquiry
appointed by him for the purpose of such reference; and the board shall,
either in public or in private, at its discretion, and at any place
within the state, inquire into the matters referred to it and report
thereon to the commissioner. Provided, however, that no such reference
shall be made unless and until there shall have been filed with the
commissioner a certificate of the state board of mediation stating that
in its opinion efforts to effect a voluntary settlement of the dispute
have been unsuccessful.
Appointment; qualification. A board of inquiry for the
purposes of this article shall consist of a chairman and such other
persons as the commissioner shall from time to time appoint, The
chairman and each appointive member of the board shall be exempt from
civil service examination and the provisions of the civil service law
and rules.
Rules. The commissioner may make rules regulating the
procedure of any board of inquiry, including rules relating to the
attendance of witnesses, and the production of books, contracts, papers,
documents and other evidence which the board may determine to be
relevant to the subject matter of the inquiry.
Witnesses; production of documents; subpoenas and commissions.
A board of inquiry shall have power, if and to such extent as may be
authorized by rules made under this article, to require any person who
appears to the board to have any knowledge of the subject matter of the
inquiry to furnish in writing or otherwise such particulars in relation
thereto as the board may require, to issue subpoenas for and compel the
attendance of witnesses and the production of books, contracts, papers,
documents and other evidence, and to administer oaths and take testimony
and take or cause to be taken depositions of witnesses residing within
or without this state. A subpoena issued under this section shall be
regulated by the civil practice law and rules. Subpoenas and commissions
to take testimony shall be issued under the seal of the department.
Reports; confidential information. A board of inquiry shall,
after investigation, make a final report to the commissioner as to the
matters referred to it and may make interim reports. Unless the strike,
lock-out or other industrial dispute is terminated or adjusted prior
thereto, or is re-submitted by all parties to the dispute for voluntary
settlement to the state board of mediation, any final report of a board
of inquiry shall be made public by the commissioner. The commissioner
may make public any interim report of a board of inquiry or any part
thereof, in such manner as he deems proper. Provided, however, that
there shall be excluded from any report or publication authorized by the
board or the commissioner, any information, other than information
having a direct bearing on the dispute, obtained by the board in the
course of its inquiry as to any labor union or as to any individual
business (whether carried on by person, firm or corporation) if at the
time such information is supplied to the board the person who supplies
it represents to the board that it is confidential information and the
board is satisfied that it is information which is not available
otherwise than through evidence given at the inquiry, unless with
respect to such evidence so presented as confidential and found to be
not otherwise available the board procures from the labor union or the
person, firm or corporation the consent to publication; nor shall any
individual member of the board or any person concerned in the inquiry,
without such consent, disclose any such information.
Personnel; compensation. 1. The commissioner by official order
may assign to the work of the board, or any part thereof, any officer or
employee of the department, who shall perform such services under this
article as the commissioner may direct. The persons so appointed shall
not receive any additional compensation for services performed, but
shall be allowed their actual and necessary expenses incurred in the
performance of their duties under this article.
2. Each appointive member of the board shall be entitled to be
reimbursed for his traveling and other expenses actually and necessarily
incurred by him in the performances of his duties and, in addition,
shall receive a compensation to be fixed by the commissioner within the
amount available by appropriation.
ARTICLE 22-A Injunctions In Labor Disputes
Injunctions issued in labor disputes. 1. No court nor any judge
or judges thereof shall have jurisdiction to issue any restraining order
or a temporary or permanent injunction in any case involving or growing
out of a labor dispute, as hereinafter defined, except after a hearing,
and except after findings of all the following facts by the court or
judge or judges thereof to be filed in the record of the case:
(a) That unlawful acts have or a breach of any contract not contrary
to public policy has been threatened or committed and that such acts or
breach will be executed or continued unless restrained;
(b) That substantial and irreparable injury to complainant's property
will follow unless the relief requested is granted;
(c) That as to each item of relief granted greater injury will be
inflicted upon complainant by the denial thereof than will be inflicted
upon defendants by the granting thereof;
(d) That complainant has no adequate remedy at law;
(e) That the public officers charged with the duty to protect
complainant's property have failed or are unable to furnish adequate
protection; and
(f) That no item of relief granted prohibits directly or indirectly
any person or persons from doing, whether singly or in concert, any of
the following acts:
(1) Ceasing or refusing to perform any work or to remain in any
relation of employment;
(2) Becoming or remaining a member of any labor organization or of any
employer organization, regardless of any agreement, undertaking or
promise;
(3) Paying or giving to, or withholding from, any person any strike or
unemployment benefits or insurance or other moneys or things of value;
(4) By all lawful means aiding any person who is being proceeded
against in, or is prosecuting any action or suit in any court of the
United States or of any state;
(5) Giving publicity to and obtaining or communicating information
regarding the existence of, or the facts involved in, any dispute,
whether by advertising, speaking, picketing, patrolling any public
street or any place where any person or persons may lawfully be, or by
any other method not involving fraud, violence or breach of the peace;
(6) Ceasing to patronize or to employ any person or persons;
(7) Assembling peaceably to do or to organize to do any of the acts
heretofore specified or to promote lawful interests;
(8) Advising or notifying any person or persons of any intention to do
any of the acts heretofore specified;
(9) Agreeing with other persons to do or not to do any of the acts
heretofore specified;
(10) Advising, urging or inducing without fraud, violence or threat
thereof, others to do the acts heretofore specified;
(11) Doing in concert of any or all of the acts heretofore specified
on the ground that the persons engaged therein constitute an unlawful
combination or conspiracy or on any other grounds whatsoever.
2. Such hearings shall be held only after a verified complaint
specifying in detail the time, place and the nature of the acts
complained of and the names of the persons alleged to have committed the
same or participated therein have been served and after due and personal
notice, in such manner as the court shall direct, has been given to all
known persons against whom relief is sought and also to the public
officers charged with the duty to protect the complainant's property.
The hearing shall consist of the taking of testimony in open court with
opportunity for cross-examination and testimony in opposition thereto,
if offered, and no affidavits shall be received in support of any of the
allegations of the complaint.
Provided, however, that a court or a judge thereof may issue a
restraining order without requiring a verified bill of particulars and
only upon such notice as to the court or judge appears adequate to
afford an opportunity to those who are to be affected by such
restraining order to appear in opposition to the application therefor,
if each of the following conditions is met:
(a) There is a labor dispute which directly and immediately involves:
(i) The production on a farm of milk, fruits, berries, vegetables or
other farm produce; or
(ii) The shipment of any such product from the farm where it was
produced; or
(iii) The first storage of any such product after shipment from the
farm where it was produced; or
(iv) The first processing by canning or freezing of fruits, berries or
vegetables; and
(b) The plaintiff is a producer of such product; and
(c) Such product is in a perishable condition; and
(d) The verified complaint and other testimony submitted by the
plaintiff, under oath, if sustained, would be sufficient not only to
justify the court in issuing a temporary injunction upon a hearing after
notice in accordance with the provisions of this section, but also to
show that the plaintiff will be irreparably damaged unless a restraining
order is issued; and
(e) The court or judge, before issuing the restraining order, makes a
decision to be filed in the record of the case in which he finds
specifically that each of the facts called for by subdivision one above
of this section has been established prima facie by the weight of the
evidence submitted in support of the application for the restraining
order and in opposition thereto.
Any such restraining order shall be effective for no longer than five
days and shall become void and not be subject to renewal at the
expiration of said five days.
3. No temporary injunction or restraining order shall be issued except
on condition that plaintiff shall first file a minimum undertaking of
one thousand dollars. Where an injunction or restraining order is sought
against more than a single individual, the court on the hearing shall
make a finding of the number of individuals sought to be enjoined and
the undertaking shall be increased by the sum of twenty dollars for each
additional member of a local or national body sought to be enjoined. The
maximum undertaking which may be required shall not exceed ten thousand
dollars. The undertaking shall be sufficient to recompense those
enjoined for any loss, expense or damage caused by the improvident or
improper issuance of such injunction, including all reasonable costs
(together with reasonable attorney's fees), and expense against the
granting of any injunctive relief sought in the same proceeding and
subsequently denied by the court. The undertaking herein mentioned shall
constitute an agreement on the part of the plaintiff and the surety upon
which a judgment may be entered in the same action or proceeding against
said plaintiff and surety. The filing of the undertaking shall be deemed
an appearance by the surety for that purpose. But nothing herein
contained shall deprive any party having a claim or cause of action
under or upon such undertaking from electing to pursue his ordinary
remedy by suit at law or in equity.
4. No injunctive relief shall be granted to any plaintiff who has
failed to plead and prove compliance with all obligations imposed by law
which are involved in the labor dispute in question, or who has failed
to allege and prove that he has made every reasonable effort to settle
such dispute either by negotiation or with the aid of any machinery of
mediation or voluntary arbitration, provided for by law or contract
between the parties.
5. No injunctive relief shall be granted except to prohibit such
specific act or acts as may be expressly complained of in the complaint
and the bill of particulars filed in such case and expressly included in
the findings of fact made and filed by the court. Such injunctive relief
shall be binding only upon the parties to the suit, their agents,
servants, employees, or those in active concert or participation with
them and who shall by personal service or otherwise have received actual
notice of the same.
6. No officer or member of any association or organization, and no
association or organization participating or interested in a labor
dispute (as these terms are herein defined) shall be held responsible or
liable in any civil action at law or suit in equity, or in any criminal
prosecution, for the unlawful acts of individual officers, members, or
agents, except upon proof by the weight of evidence and without the aid
of any presumptions of law or fact, of (a) the doing of such acts by
persons who are officers, members or agents of any such association or
organization, and (b) actual participation in, or actual authorization
of, such acts, or ratification of such acts after actual knowledge
thereof by such association or organization.
7. Every temporary injunction and restraining order shall by its terms
expire within such time after entry as the court or judge may fix, not
to exceed ten days, unless the plaintiff is ready by the expiration of
that period to proceed to trial and shall pay the necessary calendar and
trial fees.
8. No permanent injunction shall remain in force for more than six
months from the date on which the judgment is signed, provided, however,
that the duration of the injunction may be extended for another six
months, if after a further hearing initiated and conducted in the same
manner as the original hearing the court shall determine that the
injunction shall be continued or modified in accordance with the
findings of facts on the subsequent hearing.
9. Whenever any court or judge or judges thereof shall issue or deny
any temporary injunction in a case involving or growing out of a labor
dispute the stenographer shall furnish to the clerk within ten days the
original transcript of the minutes after fees therefor have been paid.
Immediately upon receiving such minutes the clerk shall cause notice of
that fact to be sent to the attorney for the appellant, or to the
appellant if he has not appeared by attorney. The appellant or his
attorney shall then procure the case to be settled on written notice of
at least three days to the clerk and to the attorney for the respondent
or to the respondent if he has not appeared by attorney, returnable
before the justice who tried the case. The clerk must thereupon make a
return to the appellate court, which must contain the summons,
pleadings, evidence and judgment or final order and all other necessary
papers and proceedings and have annexed thereto the opinion of the
court, if any, and the notice of appeal. The justice before whom the
case was tried shall within five days from the date of the submission to
him of the case on appeal, settle the case and endorse his settlement on
the return. The clerk must thereupon cause the return to be filed with
the clerk of the appellate court. After a justice is out of office he
may settle the case in any action or proceeding tried before him and may
be compelled by the appellate court to do so. Upon the filing of such
record in the appropriate appellate court the appeal shall be heard with
the greatest possible expedition, giving the proceeding precedence over
all other matters except older matters of the same character.
10. When used in this section, and for the purpose of this section:
(a) A case shall be held to involve or to grow out of a labor dispute
when the case involves persons who are engaged in the same industry,
trade, craft or occupation, or who are employees of one employer; or who
are members of the same or an affiliated organization of employers or
employees; whether such dispute is between one or more employers or
associations of employers and one or more employees or associations of
employees; between one or more employers or associations of employers
and one or more employers or associations of employers; or between one
or more employees or associations of employees and one or more employees
or associations of employees; or when the case involves any conflicting
or competing interests in a "labor dispute" (as hereinafter defined) of
"persons participating or interested" therein (as hereinafter defined).
(b) A person or association shall be held to be a person participating
or interested in a labor dispute if relief is sought against him or it
and if he or it is engaged in the industry, trade, craft or occupation
in which such dispute occurs, or is a member, officer or agent of any
association of employers or employees engaged in such industry, trade,
craft or occupation.
(c) The term "labor dispute" includes any controversy concerning terms
or conditions of employment, or concerning the association or
representation of persons in negotiating, fixing, maintaining, changing
or seeking to arrange terms or conditions of employment, or concerning
employment relations, or any other controversy arising out of the
respective interests of employer and employee, regardless of whether or
not the disputants stand in the relation of employer and employee.
Contempt of injunction order to be tried by jury. 1.
Notwithstanding any other provision of law, no person shall be punished
either by fine or imprisonment for any alleged contempt arising out of
any failure or refusal to obey any mandate of the court contained in or
incidental to an injunction order granted by said court in any case
involving or growing out of a labor dispute except after a trial by jury
to which the defendant shall be entitled as a matter of right; provided,
however, that this section shall not apply to any alleged contempt of
such an injunction order committed in the presence of the court.
2. As used in subdivision one of this section:
(a) A case shall be held to involve or to grow out of a labor dispute
when the case involves persons who are engaged in the same industry,
trade, craft or occupation; or who are employees of one employer; or who
are members of the same or an affiliated organization of employers or
employees; whether such dispute is between one or more employers or
associations of employers and one or more employees or associations of
employees; between one or more employers or associations of employers
and one or more employers or associations of employers; or between one
or more employees or associations of employees and one or more employees
or associations of employees; or when the case involves any conflicting
or competing interests in a "labor dispute" (as hereinafter defined) of
"persons participating or interested" therein (as hereinafter defined);
(b) The term "labor dispute" includes any controversy concerning terms
or conditions of employment, or concerning the association or
representation of persons in negotiating, fixing, maintaining, changing
or seeking to arrange terms or conditions of employment, or concerning
employment relations, or any other controversy arising out of the
respective interests of employer and employee, regardless of whether or
not the disputants stand in the relation of employer and employee;
(c) A person or association shall be held to be a person participating
or interested in a labor dispute if relief is sought against him or it
and if he or it is engaged in the industry, trade, craft, or occupation
in which such dispute occurs, or is a member, officer or agent of any
association of employers or employees engaged in such industry, trade,
craft, or occupation.
ARTICLE 23 Apprenticeship Training
Statement of public policy. Skilled manpower constitutes a
great resource in this state. Apprenticeship programs, through
supervised training and education, develop skilled craftsmen and help
meet the increasing needs for such workers in the state's labor force.
The continuing development of skilled manpower is essential for
individual self-realization and for an expanding industrial economy. To
these ends, it is the declared public policy of the state of New York to
develop sound apprenticeship training standards and to encourage
industry and labor to institute training programs.
Powers and duties of industrial commissioner; personnel. 1. The
industrial commissioner shall have the following powers and duties:
(a) to encourage and promote the making of apprenticeship agreements
conforming to the standards established by or pursuant to this article;
(b) to establish suggested standards for apprenticeship agreements in
conformity with the provisions of this article;
(c) to supervise the execution of apprenticeship agreements and
maintenance of standards;
(d) to register approved apprenticeship agreements, and upon
performance thereof, to issue certificates of completion of
apprenticeship;
(e) to settle differences arising out of apprenticeship agreements,
when such differences cannot be adjusted locally or in accordance with
established trade procedure;
(f) to terminate or cancel any apprenticeship agreements in accordance
with the provisions of such agreements;
(g) to encourage and promote the hiring by any trade or group of
trades of persons who are on parole, in order to aid in the
rehabilitation of such persons;
(h) to study and disseminate information on apprenticeship training,
trends of employment opportunities in various trades, the impact of
technological change on skill levels and requirements, the supply of and
needs for skilled manpower, and related matters;
(i) to cooperate with the federal government, the state education
department, the state department of commerce and other agencies, public
and private, in the state;
(j) to cooperate with the director of the division of minority and
women's business development pursuant to paragraph (k) of subdivision
three of section three hundred eleven of the executive law to assist
contractors in locating minority group members and women who are
participating in apprenticeships agreements;
(k) to adopt such rules and regulations as may be necessary for the
effective administration of the purposes and provisions of this article;
(l) to perform such other duties as may be necessary to give full
effect to the policies of the state and the provisions of this article.
2. The industrial commissioner shall appoint a person who shall be in
charge of apprentice training in the department of labor, and who shall
act as secretary of the state apprenticeship and training council and of
state joint apprenticeship committees. The industrial commissioner is
further authorized to appoint such clerical, technical, and professional
assistants as shall be necessary to effectuate the purposes of this
article. The personnel appointed under this article shall receive an
annual compensation to be fixed by the industrial commissioner within
the amount provided by appropriation.
Related and supplemental instruction. Related and supplemental
instruction for apprentices, coordination of instruction with job
experience, and the selection of teachers and coordinators for such
instruction shall be the responsibility of state and local boards
responsible for career education.
As provided by other statutes, the department of education shall be
responsible for and provide related training as required by
apprenticeship programs set up under this article.
State apprenticeship and training council. 1. The governor
shall appoint a state apprenticeship and training council, composed of
three representatives from employer organizations and three from
employee organizations and one representative of the general public, who
shall be the chairman. The council by majority vote may designate one of
its members, other than the chairman, as vice-chairman to act in the
absence or inability of the chairman. Each member shall be appointed for
a term of three years. Each member shall hold office until his or her
successor is appointed and has qualified, and any vacancy shall be
filled by appointment for the unexpired portion of the term. The present
members of the council shall continue to hold office until the
expiration of their present terms or their earlier terminations by
resignation or inability to act. The commissioner of education, the
commissioner of labor and the commissioner of economic development shall
ex officio be members of such council without vote. The members of the
council shall not receive a salary or other compensation, but shall be
reimbursed for transportation and other expenses actually and
necessarily incurred in the performance of their duties under this
article.
2. The council: (a) shall advise the commissioner of labor on
apprentice training matters, including the matters of related and
supplemental instruction; (b) may recommend suggested standards for
apprenticeship agreements; (c) shall maintain a close and effective
liaison with governmental and nongovernmental agencies which are
concerned with skilled manpower development and problems; and (d) may
recommend research projects on facts and trends relating to
apprenticeship training and the supply of and needs for skilled
manpower.
Annual reports by apprenticeship programs. 1. On an annual
basis, all apprenticeship programs covered under the provisions of this
article shall report to the department on the participation of
apprentices currently enrolled in such apprenticeship program. The data
to be included in such report shall include, at a minimum: (a) the total
number of apprentices in such apprenticeship program; (b) the
demographic information of such apprentices to the extent such data is
available, including, but not limited to, the age, gender, race,
ethnicity, and national origin of such apprentices; (c) the rate of
advancement and graduation of such apprentices; and (d) the rate of
placement of such apprentices onto job sites as well as the demographic
information of such apprentices to the extent such data is available,
including, but not limited to the age, gender, race, ethnicity, and
national origin of such apprentices.
2. The department shall make such data publicly available on its
website by July first, two thousand twenty-two and on an annual basis,
but no later than December thirty-first of each following year.
3. The commissioner may promulgate rules and regulations necessary for
the implementation of this section.
Local, regional and state joint apprenticeship committees.
Local and state joint apprenticeship committees may be approved, in any
trade or group of trades, in cities, regions of the state or trade
areas, by the industrial commissioner, whenever the apprentice training
needs of such trade or group of trades or such regions justify such
establishment. Such local, regional or state joint apprenticeship
committees shall be composed of an equal number of employer and employee
representatives chosen from names submitted by the respective local or
state employer and employee organizations in such trade or group of
trades; also such additional members representing local boards of
education or other educational agencies as may be deemed advisable. In
a trade or group of trades in which there is no bona fide employer or
employee organization, the joint committee shall be composed of persons
known to represent the interests of employers and of employees
respectively or a state joint apprenticeship committee may be approved
as, or the state apprenticeship council may act itself as, the joint
committee in such trade or group of trades. Subject to the review of the
industrial commissioner and in accordance with the standards established
by the industrial commissioner, such committees may devise standards for
apprenticeship agreements and give such aid as may be necessary in their
operation, in their respective trades and localities.
Suggested standards for apprenticeship agreements. Suggested
standards for apprenticeship agreements are as follows:
1. A statement of the trade or craft to be taught and the required
hours for completion of apprenticeship which shall be not less than four
thousand hours of reasonably continuous employment.
2. A statement of the processes in the trade or craft divisions in
which the apprentice is to be taught and the approximate amount of time
to be spent at each process.
3. A statement of the number of hours to be spent by the apprentice in
work and the number of hours to be spent in related and supplemental
instruction which instruction shall be not less than one hundred
forty-four hours per year when available, such availability to be
determined by the commissioner of education.
4. A statement that apprentices shall be not less than sixteen years
of age.
5. Provision that apprentices shall be selected on the basis of
qualifications alone, as determined by objective criteria which permit
review, and without any direct or indirect limitation, specification or
discrimination as to race, creed, color, age, sex or national origin.
6. A statement of the progressively increasing scale of wages to be
paid the apprentice.
7. Provision for a period of probation during which the industrial
commissioner shall be directed to terminate an apprenticeship agreement
at the request in writing of any party thereto. After the probationary
period the industrial commissioner shall be empowered to terminate the
registration of an apprentice upon agreement of the parties.
8. Provision that the services of the industrial commissioner may be
utilized for consultation regarding the settlement of differences
arising out of the apprenticeship agreement where such differences
cannot be adjusted locally or in accordance with the established trade
procedure.
9. Provision that if an employer is unable to fulfill his obligation
under the apprenticeship agreement he may transfer such obligation to
another employer.
10. Such additional standards as may be prescribed in accordance with
the provisions of this article.
Apprenticeship agreements. For the purposes of this article an
apprenticeship agreement is:
(1) An individual written agreement between an employer and an
apprentice, or (2) a written agreement between an employer or an
association of employers, and an organization of employees describing
conditions of employment for apprentices or (3) a written statement
describing conditions of employment for apprentices in a plant or plants
where there is no bona fide employee organization.
Apprenticeship assistance in all political subdivisions of
the state. any political subdivision of the state may provide financial
assistance, within the amounts appropriated therefor, for the purpose of
promoting non-profit apprentice training programs within such political
subdivision to train persons in those skills needed by the the political
subdivision as an employer, administered by agencies representing
municipal employees in particular title or classification or other
phases of employment; provided such programs are approved by the
department of education as to curriculum, instructors and scope and
further provided that such programs are registered and approved pursuant
to sections eight hundred fourteen and eight hundred fifteen of this
chapter.
* § 816-b. Apprenticeship participation on certain governmental
contracts. 1. For purposes of this section:
(a) "governmental entity" shall mean the state, any state agency, as
that term is defined in section two-a of the state finance law,
municipal corporation, commission appointed pursuant to law, school
district, district corporation, board of education, board of cooperative
educational services, soil conservation district, and public benefit
corporation;
(b) "construction contract" shall mean any contract to which a
governmental entity may be a direct or indirect party which involves the
design, construction, reconstruction, improvement, rehabilitation,
maintenance, repair, furnishing, equipping of or otherwise providing for
any building, facility or physical structure of any kind; and
(c) "city governmental entity" shall mean a governmental entity that
is (i) a city with a population of one million or more inhabitants; or
(ii) a city school district or public benefit corporation operating
primarily within a city with a population of one million or more
inhabitants.
2. Notwithstanding any other provision of this article, of section one
hundred three of the general municipal law, of section one hundred
thirty-five of the state finance law, of section one hundred fifty-one
of the public housing law, or of any other general, special or local law
or administrative code, in entering into any construction contract, a
governmental entity, including any city governmental entity, that is to
be a direct or indirect party to such contract may require that any
contractors and subcontractors have, prior to entering into such
contract, apprenticeship agreements appropriate for the type and scope
of work to be performed, that have been registered with, and approved
by, the commissioner pursuant to the requirements found in this article.
A city governmental entity that is a direct or indirect party to a
contract may establish in its specifications a requirement that, in
performing the work, the contractor and its subcontractors utilize a
minimum ratio of apprentices to journey-level workers, as established by
the governmental entity but subject to any maximum ratio established by
the department, for any classification appropriate for the type and
scope of work to be performed, provided that no such minimum ratio shall
be established for labor performed pursuant to a construction contract.
Whenever utilizing these requirements, the governmental entity may, in
addition to whatever considerations are required by law, consider the
degree to which career opportunities in apprenticeship training programs
approved by the commissioner may be provided.
* NB Effective until May 15, 2029
* § 816-b. Apprenticeship participation on construction contracts. 1.
For purposes of this section:
(a) "governmental entity" shall mean the state, any state agency, as
that term is defined in section two-a of the state finance law,
municipal corporation, commission appointed pursuant to law, school
district, district corporation, board of education, board of cooperative
educational services, soil conservation district, and public benefit
corporation; and
(b) "construction contract" shall mean any contract to which a
governmental entity may be a direct or indirect party which involves the
design, construction, reconstruction, improvement, rehabilitation,
maintenance, repair, furnishing, equipping of or otherwise providing for
any building, facility or physical structure of any kind.
2. Notwithstanding any other provision of this article, of section one
hundred three of the general municipal law, of section one hundred
thirty-five of the state finance law, of section one hundred fifty-one
of the public housing law, or of any other general, special or local law
or administrative code, in entering into any construction contract, a
governmental entity which is to be a direct or indirect party to such
contract may require that any contractors and subcontractors have, prior
to entering into such contract, apprenticeship agreements appropriate
for the type and scope of work to be performed, that have been
registered with, and approved by, the commissioner pursuant to the
requirements found in this article. Whenever utilizing this requirement,
the governmental entity may, in addition to whatever considerations are
required by law, consider the degree to which career opportunities in
apprenticeship training programs approved by the commissioner may be
provided.
* NB Effective May 15, 2029
Limitation. The provisions of this article shall apply to a
person, firm, corporation or craft only after such person, firm,
corporation or craft has voluntarily elected to conform with its
provisions.
Separability. If any provision of this article or the
application thereof to any person or circumstances, is held invalid, the
remainder of the article, and the application of such provision to other
persons and circumstances, shall not be affected thereby.
Training of persons in the repair and reconditioning of slot
machines. Possession of a slot machine shall be permitted where such
possession is necessary to facilitate the training of persons in the
repair and reconditioning of such machines by entities not subject to
tribal-state compacts, provided all of the following conditions are met:
1. The entity is registered with the commissioner pursuant to this
article;
2. The entity has an approved apprenticeship program in the electrical
trades pursuant to title 12, volume C-1, part 601 of the New York state
codes, rules and regulations;
3. The entity has submitted to, and received approval from, the
superintendent of state police of a security plan with regard to the
movement, location and storage of such machines at all times, including
but not limited to, a log of all persons having access to such machines,
and a video surveillance of such machines;
4. (a) Written notification, made to the commissioner, shall be made
for each machine to be received by an approved apprenticeship program.
Such notification shall include the manufacturer, model and serial
number for each machine and identification number of each program
storage device such as EPROM, ROM, flash ROM, DVD or CD-ROM. Such
identical information shall be maintained by each approved
apprenticeship program in a format required by the commissioner.
(b) Each approved apprenticeship program shall promptly notify the
commissioner, in writing, of the return, removal or destruction of a
machine or program storage device or of additional program storage
devices to be received;
5. The entity possesses a tag issued by the department with an
identification number affixed and identifying each machine.
ARTICLE 23-A New York State Manpower Training Act
Statement of public policy. There are persons who lack the
academic and career education and training necessary to obtain and hold
employment in the contemporary economy because of dislocations arising
from automation and other technological developments, foreign
competition, relocation of industry, shifts in market demands, and other
changes in the economy. The skills of many other persons who are
currently employed are being rendered obsolete by such dislocations in
the economy. Unless such persons are given appropriate career and
related education and training, many of them and their families are
doomed to lifelong unemployment or underemployment and dependency on the
aid, care and support of the welfare agencies of the state and its
political subdivisions; with appropriate career and related education
and training; many of them would become qualified for occupational
categories which remain unfilled because of shortages of qualified
personnel.
Accordingly, it is the purpose of this act to authorize the state
government to develop programs of career and related education and
training which will permit persons who face the hazards of unemployment
and underemployment to develop skills which are useful in the
contemporary economy and to assist such persons to participate in such
programs.
State training courses. The commissioner may provide for career
and related, institutional and on-the-job training courses as described
in section five hundred ninety-nine of this chapter and for the
administration of public work projects for recipients of public
assistance, and may contract for these purposes with public and private
agencies including public and private institutions of learning,
employers or other appropriate organizations. He shall select for and
refer to such training courses unemployed and under-employed persons who
would meet the conditions for approval as specified in section five
hundred ninety-nine of this chapter. He shall select and refer to public
work projects all public assistance recipients registered at employment
offices of the department who are neither referred thereby for
employment in the regular economy or for career training, nor assigned
to public works projects by social welfare officials. The commissioner
may provide for such payments, either in advance or by way of
reimbursement, from funds made available to carry out the purposes of
this article, as he deems necessary.
Authorization and standards for allowances. The commissioner,
in accordance with standards established by him, may pay to a person
enrolled in such courses, training, subsistence, and transportation
allowances. In setting standards for:
1. training allowances, the commissioner shall consider the relative
needs of the trainees, wages earned by them, and benefits payable to
them under the general provisions of article eighteen of this chapter,
provided, however, that no training allowance shall exceed by more than
ten dollars the average statewide gross benefit rate under such article
for a week of total unemployment during the most recent
four-calendar-quarter period for which such data are available,
augmented by five dollars a week for each dependent over two up to a
maximum of four additional dependents.
2. subsistence allowances, the commissioner shall consider the cost to
the trainees of living away from their normal residences where this is
necessitated by the location and nature of the training facilities,
provided, however, that no such allowance shall exceed five dollars a
day.
3. transportation allowances, the commissioner shall consider the cost
to the trainees of commuting and long-distance travel necessitated by
the nature and location of the training facilities.
Applicability of other provisions. The provisions of section
five hundred ninety-seven and of title eight of article eighteen of this
chapter shall, insofar as appropriate, apply to payments authorized by
this article.
ARTICLE 23-B Displaced Homemakers Act
Multipurpose service centers. 1. Upon receipt of federal
funding designated to assist displaced homemakers, the commissioner
shall establish multipurpose service centers for displaced homemakers
which shall provide the following:
(a) job counseling services which shall:
(i) be specifically designed for a person entering the job market
after a number of years as a homemaker;
(ii) operate to counsel displaced homemakers with respect to
appropriate job opportunities;
(b) job training and job placement services which shall:
(i) develop, by working with state and local government agencies and
private employers, training and placement programs for jobs in the
public and private sectors;
(ii) assist displaced homemakers in gaining admission to existing
public and private job training programs and opportunities;
(iii) assist in identifying community needs and creating new jobs in
the public and private sectors;
(c) health education and counseling services with respect to:
(i) general principles of preventative health care;
(ii) health care consumer education, directed particularly to
selection of physicians, dentists and health care services and health
insurance;
(iii) family health care and nutrition;
(iv) alcohol and drug addictions; and
(v) other related health care matters;
(d) financial management services which provide information and
assistance with respect to insurance, taxes, estate and probate
problems, mortgages, loans, and other related financial matters;
(e) educational services, including:
(i) courses offering information about credit through secondary or
post secondary education programs including bilingual programs when
appropriate;
(ii) such other courses as the commissioner determines would be of
interest and benefit to displaced homemakers; and
(f) outreach and information services with respect to federal and
state employment, education, health, and unemployment assistance
programs which the commissioner determines would be of interest and
benefit to displaced homemakers.
2. The commissioner may enter into contracts with and make grants to
public and nonprofit private entities for purposes of establishing
multipurpose service centers under this article.
3. The commissioner shall consult and cooperate with the secretary of
health, education and welfare, the secretary of labor, the commissioner
of the social security administration, the commissioner of the
administration on aging, and such other persons in the executive branch
of the federal and state governments as the commissioner considers
appropriate to facilitate the coordination of multipurpose service
centers established under this article with existing federal and state
programs of a similar nature.
4. Supervisory, technical, and administrative positions relating to
multipurpose service centers established under this article shall, to
the maximum extent feasible, be filled by displaced homemakers.
5. Trainees in a program established under this article, who have
demonstrated a financial need to the satisfaction of the commissioner,
shall be paid a stipend not less than the federal minimum wage while
engaged in such program.
Definitions. For purposes of this article:
1. The term "displaced homemaker" means an individual who:
(a) has worked in the home, providing unpaid household services for
family members;
(b) is not gainfully employed;
(c) has had, or would have difficulty in securing employment; and
(d) has been dependent on the income of another family member but is
no longer supported by such income, or has been dependent on federal
assistance but is no longer eligible for such assistance, or is
supported as the parent of minor children by government assistance or
spousal support.
2. The term "commissioner" means the industrial commissioner of the
state of New York.
Study of federal programs. The commissioner shall:
1. In consultation with appropriate heads of agencies, prepare and
furnish a study to determine the feasibility of and appropriate
procedures for allowing displaced homemakers to participate in:
(a) programs established under the Comprehensive Employment and
Training Act of 1973 (29 U.S.C. 801 et seq.);
(b) work incentive programs established under section 432 (b) (1) of
the Social Security Act;
(c) related federal and state employment, education, and health
assistance programs; and
(d) programs established or benefits provided under federal and state
unemployment compensation laws by consideration of full-time homemakers
as workers eligible for such benefits or programs.
2. Through coordination with the department of labor, conduct a study
to determine the feasibility of and appropriate procedures for allowing
displaced homemakers to participate in programs established or benefits
provided under;
(a) the Federal-State Extended Unemployment Compensation Act of 1970
(Public Law 91-373; 87 Stat. 708);
(b) title II of the Emergency Jobs and Unemployment Assistance Act of
1974 (Public Law 93-567; 88 Stat. 1850);
(c) the Emergency Unemployment Compensation Act of 1974 (Public Law
93-572; 88 Stat. 1869); and
(d) related federal and state unemployment, employment, health and
education assistance programs.
Selection and administration of centers. 1. In selecting sites
for the centers established under this article, the commissioner shall
consider:
(a) the location of any existing facilities for displaced homemakers
and of any existing services which might be incorporated into a center.
(b) the needs of both urban and rural communities of the state for
such centers.
2. As soon as possible after the selection of a particular site for a
center, and in any case not later than two years after the effective
date of this article, the commissioner shall select a public or
nonprofit private organization to administer each center. The selection
of such an organization shall be made after consultation with local
government agencies, and shall take into consideration the experience
and capability of such organizations in administering the services to be
provided by the center.
3. As soon as possible and in any case not later than six months after
the effective date of this article, the commissioner shall issue
regulations prescribing the standards which shall be met by each center
in accordance with the policies set forth in this article. Continuing
grants for the maintenance of each center shall be contingent upon the
determination by the commissioner, based upon evaluations under section
eight hundred twenty-nine of this article, that the center is in
compliance with the regulations prescribed by the commissioner.
Evaluation. The commissioner, in consultation with appropriate
heads of departments, shall prepare and furnish to the legislature a
report, not later than one year after the effective date of this
article, on the centers established under this article, including:
1. A thorough assessment of each center;
2. Recommendations concerning the administration and expansion of such
centers;
3. A detailed statement of the findings and conclusions of the studies
conducted under section eight hundred twenty-seven of this article; and
4. Such recommendations for legislative or other action as the
commissioner may consider appropriate.
Contributions. The commissioner may, in carrying out the
provisions of this article, accept, use, and dispose of contributions of
money, services, and property.
Nondiscrimination. No person shall on the ground of sex, age,
race, color, religion, or national origin be excluded from participating
in, be denied the benefits of, or be subjected to discrimination under,
any program or activity funded in whole or in part with funds made
available under this article.
ARTICLE 24 Worker Adjustment Act
Definitions. For the purposes of this article, the following
terms shall have the following meanings:
1. "Additional dislocated workers" means a displaced homemaker who is
an individual who:
(a) was a full-time homemaker for a substantial number of years; and
(b) derived the substantial share of his or her support from:
(i) a spouse and no longer receives such support due to the death,
divorce, permanent separation from the spouse, or
(ii) public assistance on account of dependents in the home and no
longer receives such support.
2. "Administrative entity" means the entity designated to administer a
job training plan pursuant to section one hundred three (b) (1) (B) of
the federal Job Training Partnership Act (P.L. 97-300).
3. "Basic readjustment services" means services including, but not
limited to:
(a) development of individual readjustment plans for participants in
programs under this article;
(b) outreach and intake;
(c) early readjustment assistance;
(d) job or career counseling;
(e) testing;
(f) orientation;
(g) assessment, including evaluation of educational attainment and
participant interests and aptitudes;
(h) determination of occupational skills;
(i) provision of future world-of-work and occupational information;
(j) job placement assistance;
(k) labor market information;
(l) job clubs;
(m) job search;
(n) job development;
(o) supportive services, including child care, commuting assistance,
and financial and personal counseling which shall terminate not later
than the ninetieth day after the participant has completed other
services under this subdivision, except that counseling necessary to
assist participants to retain employment shall terminate not later than
six months following the completion of training;
(p) prelayoff assistance;
(q) relocation assistance; and
(r) programs conducted in cooperation with employers or labor
organizations to provide early intervention in the event of closures of
plants or facilities.
4. "Dislocated workers" means individuals who:
(a) have been terminated or laid off or who have received a notice of
termination or layoff from employment, are eligible for or have
exhausted their entitlement to unemployment compensation, and are
unlikely to return to their previous industry or occupation;
(b) have been terminated or have received a notice of termination of
employment, as a result of any permanent closure of or any substantial
layoff at a plant, facility, or enterprise;
(c) are long-term unemployed and have limited opportunities for
employment or reemployment in the same or a similar occupation in the
area in which such individuals reside, including older individuals who
may have substantial barriers to employment by reason of age; or
(d) were self-employed (including farmers and ranchers) and are
unemployed as a result of general economic conditions in the community
in which they reside or because of natural disasters, subject to
regulations prescribed by the federal Secretary of Labor.
5. "Employer specific skill training" shall mean programs administered
by the state education department designed to support, supplement and
contribute to the economic development activities of the department of
economic development and regional and local efforts to maintain the
economy of the state by providing skills training programs for companies
which want to locate or expand in the state, including support to small
business and cottage industries, special training for new and expanding
industries in urban and rural areas and other training programs to meet
the needs of dislocated workers and the state's business and industry.
6. "Grant recipient" means the entity chosen within a service delivery
area to receive funds from the state pursuant to section one hundred
four (b) (2) of the federal Job Training Partnership Act (P.L. 97-300).
7. "Labor-management committees" means committees voluntarily
established to respond to actual or prospective worker dislocation,
which ordinarily include, but are not limited to, the following:
(a) shared and equal participation by workers and management;
(b) shared financial participation between the company and the state,
using funds provided under this article, in paying for the operating
expenses of the committee;
(c) a chairperson, to oversee and guide the activities of the
committee, (i) who shall be jointly selected by the labor and management
members of the committee, (ii) who is not employed by or under contract
with labor or management at the site, and (iii) who shall provide advice
and leadership to the committee and prepare a report on its activities;
(d) the ability to respond flexibly to the needs of affected workers
by devising and implementing a strategy for assessing the employment and
training needs of each dislocated worker and for obtaining the services
and assistance necessary to meet those needs;
(e) a formal agreement, terminable at will by the workers or the
company management, and terminable for cause by the governor; and
(f) local job identification activities by the chairperson and members
of the committee on behalf of the affected workers.
8. "Local elected official" means the chief elected executive officer
of a unit of general local government in a substate area.
9. "On-the-job training" means training which is specified in an
agreement between the grantee and the employer and includes both work
experience and training, formalized in an outline defining each training
component and outcomes of the training process.
10. "Plant closing" means the permanent or temporary shutdown of a
single site of employment, or one or more facilities or operating units
within a single site of employment, if the shutdown results in an
employment loss at a single site of employment during any thirty day
period for twenty-five or more employees excluding any part-time
employees. In addition, should the shutdown directly cause an employment
loss at any additional site, all such employees at the additional site
or sites shall be counted toward the twenty-five required to meet this
definition.
11. "Private industry council" means local private industry council as
defined in section one hundred two of the federal Job Training
Partnership Act (P.L. 97-300).
12. "Region" means the economic development regions as defined by the
department of economic development.
13. "Retraining services" means services which may include, but are
not limited to:
(a) classroom training;
(b) occupational skill training;
(c) on-the-job training;
(d) out-of-area job search;
(e) relocation;
(f) basic and remedial education;
(g) literacy and English for non-English-speaker training;
(h) entrepreneurial training; and
(i) other appropriate training activities directly related to
appropriate employment opportunities within the substate area.
14. "Service delivery area" means a local service delivery area as
defined in section one hundred one of the federal Job Training
Partnership Act (P.L. 97-300).
15. "Service provider" means a public agency, private nonprofit
organization, or private for-profit entity that delivers educational,
training, or employment services.
16. "Substantial layoff" means any reduction-in-force which is not the
result of a plant closing and which results in an employment loss at a
single site of employment during any thirty day period for:
(a) (i) at least thirty-three percent of the employees (excluding
employees regularly working less than twenty hours per week); and
(ii) at least fifty employees (excluding employees regularly working
less than twenty hours per week); or
(b) at least five hundred employees (excluding employees regularly
working less than twenty hours per week).
17. "Substate areas" means that geographic area in a state established
by the governor pursuant to section three hundred twelve (a) of the
federal Economic Dislocation and Worker Adjustment Assistance Act (P.L.
100-418), provided that the governor shall notify in writing the
president pro tempore of the senate, speaker of the assembly, minority
leader of the senate and minority leader of the assembly not less than
sixty days prior to any change in the designation of such area.
18. "Substate grantees" means that agency or organization selected to
administer programs pursuant to section three hundred twelve (b) of the
federal Economic Dislocation and Worker Adjustment Assistance Act (P.L.
100-418) and section eight hundred thirty-six of this article.
Administration. Except as is otherwise provided herein, the
administration of the worker adjustment program shall be carried out by
the department in consultation with the department of economic
development, state education department, state university of New York,
city university of New York, and the state job training coordinating
council, hereinafter referred to as the "council", in a manner
consistent with the federal Economic Dislocation and Worker Adjustment
Assistance Act (P.L. 100-418), hereinafter referred to as "the act".
State plan. 1. The governor shall be responsible for
preparation and submission of a biennial plan. The plan shall be
prepared with input from the department, the department of economic
development, state education department, state university of New York
and the state job training coordinating council. The plan shall include,
but not be limited to:
(a) a description of services to be provided to dislocated workers and
additional dislocated workers as defined in section eight hundred
thirty-five of this article;
(b) the identification of the state dislocated worker unit within the
department, and the activities such unit will carry out;
(c) a description of coordination between such unit; and
(i) the department of economic development for the purposes of
developing strategies to avert plant closings or substantial layoffs
which would include the participation of the department of economic
development in the establishment of labor-management committees, the
provision of resources and technical assistance for a preliminary
assessment of the advisability of conducting a comprehensive study
exploring the feasibility of having a company or group, including the
workers, purchase the plant and continue it in operation, and the
provision of appropriate financial and technical advice to assist in
efforts to avert worker dislocation;
(ii) the state education department for the purposes of identifying
and approving training/retraining activities that meet standards of
instructional quality pursuant to subparagraph (ii) of paragraph (b) of
subdivision four of section eight hundred forty-six of this article;
(d) an explanation of the extent to which additional dislocated
workers will be served under this plan and, if such workers will not be
served, a statement of justification for their exclusion; and (e) a
detailed description of reporting and evaluation activity relating to
outcomes achieved.
2. The biennial plan developed pursuant to subdivision one of this
section shall be submitted to the council for review and comment and to
the governor for approval. Copies shall also be submitted to the
president pro-tempore of the senate and the speaker of the assembly
simultaneous to its submission to the council.
3. The state plan submitted under this section may be modified to
describe changes in or additions to programs and activities set forth in
the plan and shall be reviewed and approved in the same manner as the
state plan originally submitted.
Substate grantees. 1. Substate grantees shall be designated on
a biennial basis through agreement between the governor, local elected
officials and private industry councils pursuant to the act.
(a) preference for selection shall be given to those entities which
have demonstrated fiscal and administrative capability to directly
administer basic readjustment and retraining services and provide
support services or have demonstrated the administrative capacity to
contract out for such services.
(b) entities eligible for selection as substate grantees must
demonstrate the capacity to administer the required services either
directly or by contract continuously through the period covered by the
substate plan, and include:
(i) private industry councils in the substate area;
(ii) service delivery area grant recipients or administrative
entities;
(iii) private nonprofit organizations;
(iv) units of general local government in the substate area or
agencies thereof;
(v) local offices of state agencies; and
(vi) other public agencies, such as community colleges and area
vocational schools.
2. Substate grantees shall administer substate activities as defined
in subdivision two of section eight hundred thirty-nine of this article.
3. The state shall establish procedures to review the designation of
substate grantees on a biennial basis. Such procedures shall include the
use of evaluation data defined in section eight hundred forty-nine of
this article.
Substate plans. 1. Substate grantees are required to submit a
substate plan for review and comment to the local elected officials and
the private industry council and to the governor for approval. Upon
approval of the plan, grantees shall implement all procedures described
pursuant to the requirements of this section.
2. The substate plan shall include statements describing:
(a) basic readjustment, retraining and supportive services and the
method for providing such services;
(b) outreach and intake procedures and the method used to verify
program participant eligibility;
(c) means for coordinating services with the unemployment compensation
system;
(d) means for involving labor organizations representing individuals
affected by dislocation within the substate area in the development and
implementation of services;
(e) performance goals;
(f) procedures for selecting service providers consistent with section
one hundred seven of the federal Job Training Partnership Act (P.L.
97-300);
(g) procedures for responding expeditiously to worker dislocation
where the rapid response assistance required by section eight hundred
forty of this article is inappropriate, of which methods may include but
are not limited to:
(i) development and delivery of widespread outreach mechanisms;
(ii) provision of financial evaluation and counseling (where
appropriate) to assist in determining eligibility for services and the
type of services needed;
(iii) initial assessment and referral for further basic readjustment
and retraining services; and
(iv) establishment of centers within each substate area for the
purpose of providing such outreach, assessment and early readjustment
assistance.
(h) the involvement of the governor, local elected officials and
private industry council in the activities of the substate grantee;
(i) the training services to be provided including:
(i) assessment of participants' skill levels and occupational
abilities;
(ii) assessment of participants' needs including educational,
training, employment and supportive services;
(iii) methods for allocating resources to provide the services
recommended by rapid response teams; and
(iv) a description of services and activities to be provided in the
substate area;
(j) the means to achieve coordination with other appropriate programs,
services and systems for the purpose of avoiding duplicating services
available through existing services;
(k) a detailed budget; and
(l) an evaluation design consistent with criteria set forth in
regulations by the commissioner.
3. The governor shall approve the plan submitted by a substate
grantee, or the modification thereof, unless he finds that:
(a) corrective measures for deficiencies found in audits or in meeting
performance standards from previous years have not been taken or are not
acceptably underway;
(b) the entity proposed to administer the program does not have the
capacity to administer the funds;
(c) there are inadequate safeguards for the protection of funds
received;
(d) the plan or modification does not comply with a particular
provision of the federal job training partnership act (P.L. 97-300) or
of regulations of the United States secretary of labor; or
(e) the plan or modification does not comply with the requirements of
this article.
4. The governor shall approve or disapprove a plan submitted by a
substate grantee or modification thereof within thirty days after the
date that the plan or modification is submitted, except that if a
petition is filed under subdivision five of this section, such period
shall be extended to forty-five days. Any disapproval by the governor
may be appealed to the United States secretary of labor.
5. Interested parties may petition the governor within fifteen days of
the date of submission for disapproval of the plan or modification
thereof if:
(a) the party can demonstrate that it represents a substantial client
interest;
(b) the party took appropriate steps to present its views and seek
resolution of disputed issues prior to submission of the plan to the
governor; and
(c) the request for disapproval is based on a violation of statutory
requirements.
6. If a substate grantee fails to submit a plan, or submits a plan
that is not approved by the governor, the governor may direct the
expenditure of funds allocated to the substate area until such time as a
plan is submitted and approved or a new substate grantee is designated
under this article.
7. If a substate grantee fails to expend funds allocated to it in
accordance with its plan, the governor may, subject to appropriate
notice and opportunity for comment in the manner required for approval
of the substate plan, direct the expenditure of funds in accordance with
the substate plan until the substate grantee corrects the failure, the
substate grantee submits an acceptable modification to its plan, or a
new substate grantee is designated in accordance with the provisions of
paragraph (a) of subdivision one of section eight hundred thirty-eight
of this article.
State level activities, rapid response. 1. The state shall be
responsible for rapid response activities pursuant to section 312.1 of
the federal Job Training Partnership Act (P.L. 97-300), coordination of
title III activity and the state unemployment insurance program, state
and regional projects and demonstrations, and the discretionary
allocation of additional funds to substate areas based on determination
of need.
2. The state's designated dislocated worker unit shall have the
capability to provide rapid response services to dislocated workers
affected by a substantial layoff or a plant closing. Such services shall
include:
(a) on site intervention within forty-eight hours of notification of
either a plant closing or a substantial layoff;
(b) provision of emergency basic readjustment services as needed;
(c) promotion of labor-management cooperation through the initiation,
with the department of economic development, where appropriate, of
labor-management committees;
(d) development, with the department of economic development, of an
early warning system;
(e) dissemination of information on dislocated worker services
available under title III of the federal Job Training Partnership Act
(P.L. 97-300) and other appropriate services funded by the federal,
state, and local governments;
(f) provision of technical assistance to substate grantees;
(g) receipt of notifications of layoffs and closings and provision to
substate grantees of such information as soon as possible to assure the
maximum local response;
(h) coordination between rapid response activities and the
unemployment insurance system and the job training partnership system,
state and local economic development activities and the regional
education centers of the state education department; and
(i) notification of appropriate state agency staff and coordination
with the activities of central, local or regional staff of the
departments of labor, economic development and education to facilitate
additional on-site contact with employer and employee representatives
within a short period of time, preferably forty-eight hours, after
becoming aware of a current or projected permanent closure or
substantial layoff in order to provide information on and facilitate
access to available public programs and services.
3. The commissioner may, under exceptional circumstances, authorize
the designated dislocated worker unit to provide rapid response services
when the employment loss is for less than twenty-five employees, is not
at a single site of employment or does not take place during a single
thirty day period. For purposes of this subdivision, exceptional
circumstances include those situations which would have a major impact
on the community or communities in which they occur.
Regional and demonstration projects. 1. Demonstration
projects. (a) The state unit shall conduct statewide projects and
demonstration programs to address the needs of distressed industries and
to provide for projects that would lead to the development of innovative
strategies to meet the needs of dislocated workers.
(b) Such projects shall emphasize retraining, and include counseling
and assessment components.
(c) Funding for such projects shall be allocated through a contract
process subject to the state plan and in coordination with the substate
grantees affected.
(d) Funding for projects and programs shall be made available in
annual rounds, by December thirty-first of each fiscal year beginning in
nineteen hundred eighty-nine. The department shall, by rule, establish
a solicitation and award evaluation process for funds made available for
this purpose. Such rules shall specify the criteria by which the
department shall evaluate proposals and determine which shall receive
funding. The evaluation process shall consider the ability of the
provider to accomplish the proposal based on past performance,
administrative capability and fiscal responsibility, the innovativeness
of the proposal, the expected improvement in the delivery of services
within the area served by the substate grantee, the extent to which
elements of the proposal may be replicated in other service areas within
the state, and such other factors as the commissioner shall, by rule,
prescribe.
2. Regional projects. The state unit shall provide extended
retraining and basic readjustment services directly through the
department, through awards to substate grantees or through awards by the
department to service providers. Substate grantees shall have preference
in receiving such grants. Such grants shall be made available from funds
allocated to the state pursuant to paragraph (e) of subdivision four of
section eight hundred forty-seven of this article and shall be subject
to such requirements as are imposed by section eight hundred forty-seven
of this article.
Monitoring. The state unit will monitor the implementation of
substate plans and, as needed, shall make additional funds available to
the substate grantees, pursuant to subdivision two of section eight
hundred forty-eight of this article, to assure that the substate plan is
fully implemented regardless of economic changes in the substate area
that could influence the number of dislocated workers to be served.
Employer specific skills training. 1. The department shall
enter into agreements with the commissioner of education to pay for the
participation of dislocated workers in employer specific short-term
skill training provided by the commissioner of education under the
provisions of the federal Vocational Education Act of 1963.
2. Employers seeking assistance. Employers seeking assistance in
locating the availability of employer specific skills training programs,
or seeking to have such a program developed may apply for assistance by
contacting a regional educational center for economic development. Such
center shall survey existing programs offered by it or through
appropriate substate grantees to identify any which may be suitable to
meet the needs of the applicant. If none is available, the department of
education shall contact local education agencies within the substate
area, and adjacent substate areas, to promote the development of
proposals for programs to be funded through the program.
3. Grant applications by training providers. Training providers may
apply to the commissioner of education for grants to conduct employer
specific skill training programs. Application for grants shall be in a
manner consistent with the application process for business and industry
specific training programs under the federal Vocational Education Act of
1963, and shall be in a form prescribed by the commissioner of
education. Such application shall (a) describe the amount and purposes
for which funding is requested; (b) describe the training services to be
provided, including the duration of training and the estimated training
cost per recipient; (c) show evidence that the proposed training program
will provide appropriate assistance to recipients; (d) describe other
funding sources which may be used for such training; (e) describe the
steps the provider will take to avoid duplication of training available
through existing resources; (f) describe the provider's coordination
with programs and activities funded through the job training partnership
act or other state resources; and (g) such other information as may be
required by the commissioner of education. No grant shall exceed fifty
percent of total program cost.
4. Evaluation of grant applications. The commissioner of education
shall make grant awards based on evaluation of the following criteria,
at a minimum: (a) The provider's past effectiveness in delivering
training programs based on demonstrated performance; (b) ability to
provide participants with the skills necessary to fill available jobs;
(c) the administrative capability to operate such a training program;
(d) cost of the proposed program; (e) where appropriate, evidence that
the provider has made provisions for coordination with other services
available from the department of economic development, the department of
labor, such other state agencies as may be relevant, and local grantees;
and (f) such other factors as the commissioner of education shall deem
appropriate.
5. In the event of a plant closing or substantial layoff as defined in
subdivisions ten and sixteen of section eight hundred thirty-five of
this article, the state education department shall participate in rapid
response activity and make available appropriate resources for training
interventions through the regional education centers for economic
development.
6. In developing projects in response to training needs for dislocated
workers or additional dislocated workers, the commissioner of education
shall approve and fund from this article, only employer specific
training projects that have been certified in writing by the substate
grantee as consistent with the area's substate plan after formal
consultation with the state education department.
7. Funds available under this paragraph shall be allocated to each
region based on a formula which includes the relative number of
unemployed individuals within each region and available plant closing
and substantial layoff data published by the department under the
permanent mass layoff and plant closing statistical series. However,
after March first of each fiscal year, the commissioner of education, in
a manner consistent with applicable federal law and regulations, shall
reapportion any amount of any allocation otherwise due to a region if he
or she determines that such amount cannot be obligated within such
region. Such reapportionment shall be distributed in a manner consistent
with the purposes of this article.
Feasibility studies. The department of economic development
shall conduct preliminary assessments of the advisability of conducting
a comprehensive study exploring the feasibility of having a company or
group, including the workers, purchase the plant and continue it in
operation. Provided further, that rules and regulations established by
the commissioner of economic development pursuant to section one hundred
ninety-three of article seven of the omnibus economic development act of
nineteen hundred eighty-seven regarding the selection and retention of
experts to be used in undertaking assessments and the exemption of
disclosure requirements shall apply to assessments conducted under this
section.
Coordination. State dislocated worker programs funded under
this section shall, to the fullest extent possible, coordinate with
other federal, state and local programs before initiating activity and,
where substantial numbers of union members are affected, consult with
appropriate labor organizations.
Substate level activities. 1. (a) Grantees shall use funds
allotted to them pursuant to section eight hundred forty-eight of this
article to provide to eligible dislocated workers the core functions of
the worker adjustment program, which include intake, assessment and
counseling, as well as basic readjustment and retraining services as
defined in section eight hundred thirty-five of this article, directly
or by contract. Provided, however, that such grantees shall not be
required by the department to contract with any specific provider for
the provision of such services.
(b) Each substate grantee shall provide intake, counseling and
assessment directly or by contract on an ongoing basis at a site or
sites designated by the substate grantee to which all dislocated workers
in the area have access. In addition, the substate grantee may make such
services available at the location of a plant closing or substantial
layoff.
(c) Substate grantees shall require that all service providers
selected by the substate grantee to receive funds allocated pursuant to
section eight hundred forty-eight of this article, other than vouchers
for training services given to program participants pursuant to
subdivision four of this section, shall provide a written plan which
includes: (i) the amount and purposes for which funding is requested;
(ii) a description of the services to be provided, including the
duration of service and the estimated service cost per recipient; (iii)
procedures for identifying and selecting participants and for
eligibility determination and verification; (iv) evidence that the
proposed service program will provide appropriate assistance to
recipients seeking available private sector employment; (v) a
description of other funding sources which may be used for such
programs; (vi) a description of steps the provider will take to avoid
duplication of services available through existing resources; (vii) a
description of the provider's coordination with programs and activities
funded through the job training partnership act or other state
resources; (viii) procedures for advising the local private industry
council of the provider's proposal, including ways in which the provider
intends to cooperate with the local private industry council; and (ix)
such other information as may be required by the grantee.
(d) The grantee shall select training providers and determine the
amount of monies available for each program. Selection considerations
shall include: the provider's past effectiveness in delivering
employment or vocational training programs or other readjustment
services based on demonstrated performance; for training providers,
ability to provide participants with the skills necessary to fill
available jobs in the private sector; cost of the proposed program; the
administrative capability to operate such a program; fiscal
responsibility; for training providers, a record of job placement for
completers which meets standards of acceptability established by the
commissioner for this purpose; the degree to which the provider has made
provisions for coordination with other services available under the job
training partnership act and other state and federal programs; and such
other factors as the grantee may determine. Funds provided pursuant to
this article shall not be used to duplicate facilities or services
available to the substate area from other federal, state or local
sources.
(e) Appropriate vocational and educational institutions in the
substate area shall be accorded the initial opportunity to provide
educational services unless the grantee determines that alternative
entities would be more effective or would have greater potential to
enhance participants' continued occupational and career growth.
(f) Funds shall be made available to service providers through direct
contract between each such service provider and the grantee. The
grantee shall notify the department of the award of each contract and
shall certify that the requirements of this article have been met.
(g) After March first of each year, the department shall reapportion
an amount of unexpended funds from each substate area's allocation that
the department has determined cannot be expended as planned. The
substate area shall be provided with no less than thirty days advance
notice and an opportunity to appeal the reallocation. The department
shall reallocate those funds to the substate areas in a manner
consistent with the purposes of this section and with applicable federal
law and regulations. Funds shall be reallocated to substate areas that
have demonstrated an ability to expend funds at a rate in keeping with
or exceeding planned levels and where existing resources are
insufficient to provide needed services, to be determined in
consultation with interested parties. At any time after December
thirty-first, a substate area may volunteer to deobligate funds. Such
funds may be reallocated immediately by the department to the substate
grantees consistent with the purposes of this article.
2. Opportunities may be offered for on-the-job training with the
following conditions:
(a) preference will be given for jobs which exceed the minimum wage
and which have the capacity for growth and advancement;
(b) the employer will be responsible for at least fifty percent of the
wages and fringe benefits paid to a worker in training.
3. Needs-related payments may be provided under this section pursuant
to subparagraph (e) of section three hundred fourteen of the act for
eligible participants upon demonstration of need after considering all
of the sources of income available to the participant or the
participant's family. However, such payment shall not be made unless
the participant's unemployment compensation, including any extended
benefits, will expire prior to their completion of the program.
4. Alternative methods of providing retraining services may be
approved such as:
(a) A substate grantee may defer the delivery of retraining services
by providing the program participant with a certificate of continuing
eligibility:
(i) such certificates may be effective for periods not to exceed one
hundred four weeks;
(ii) certificates will not include references to any specific amounts
of funds;
(iii) certificates shall state that they are subject to availability
of funds at the time that the services are to be provided; and
(iv) acceptance of a certificate shall not be deemed as enrollment in
training.
(b) A substate grantee may provide the program participants with
vouchers for training services whereby the participants may seek out and
arrange their own retraining with the following limitations:
(i) service providers must be approved by the grantee pursuant to the
provisions of subparagraph (ii) of this paragraph;
(ii) the commissioner of education shall prepare a list of programs
approved for funding and shall submit such list to the commissioner by
July first, nineteen hundred eighty-nine, and shall thereafter from time
to time as he or she determines necessary update such list. The
commissioner shall include on such list only non-degree programs which
are at least three hundred twenty clock hours in length, and which
provide skills for employment based on current requirements of business
and industry in an occupational field for which favorable employment
opportunities are anticipated in the state and which meet standards of
instructional quality established in regulations by the commissioner of
education. These standards shall include, but are not limited to,
qualifications of administrative and instructional personnel, quality of
the curricula, quality of facilities and equipment, record keeping,
admission, grading, attendance and record of placement of completers
which meets standards of acceptability as established by the
commissioner of education in conjunction with the commissioner;
(iii) such services shall be conducted under a grant, contract or
other arrangement between the grantee and the service provider; and
(iv) substate grantees shall provide vouchers to program participants
only upon demonstration that such program participant has been accepted
for and is proposing to undertake an occupational retraining program
which has been approved by the commissioner of education pursuant to
this section.
5. Substate grantees shall establish linkages with all involved state
agencies, including local and regional offices of the department of
labor, the department of education and the department of economic
development.
Limitations on uses of funds. 1. Not less than sixty percent of
the funds expended by substate grantees must be used for retraining
services as defined in section eight hundred thirty-five of this
article.
2. Not more than twenty-five percent of the funds expended by any
substate grantee or the governor may be used to provide needs-related
services pursuant to section eight hundred forty-six of this article and
other supportive services as defined in this act.
3. Not more than twelve percent of the funds expended by substate
grantees pursuant to paragraph three of section eight hundred
forty-eight of this article shall be used for administrative expenses.
4. (a) Twelve percent of the funds allocated to the state for state
level activities in each year shall be made available to the department
for administrative expenses. Provided further that not more than twelve
percent of such funds shall be expended by the department pursuant to
subdivision one of section eight hundred forty-eight of this article for
administrative expenses including technical assistance and fiscal and
compliance auditing.
(b) Six hundred seventy-five thousand dollars of the funds allocated
to the state for state level activities in subdivision one of section
eight hundred forty-eight of this article in each year shall be made
available for statewide projects and demonstration programs authorized
pursuant to section eight hundred forty-one of this article.
(c) Sixteen percent, plus three hundred thousand dollars, of the funds
allocated to the state for state level activities in each year shall be
made available for rapid response activities authorized pursuant to
section eight hundred forty of this article, including the funding of
innovative programs for the delivery of rapid response services to
dislocated workers. No single state agency, department, board or
commission shall receive a suballocation from the department of more
than twenty percent of the funds allocated by this paragraph. Any funds
suballocated to the department of economic development shall be for
feasibility studies as provided in section eight hundred forty-four of
this article.
(d) Fifty percent of funds allocated to the state for state level
activities in each year remaining after funding is provided for the
purposes described in paragraphs (a), (b) and (c) of this subdivision,
which amount shall not exceed one million seventy-six thousand three
hundred fifty dollars, shall be made available for the provision of
employer specific skills training.
Not more than five percent of the funds expended pursuant to this
paragraph shall be expended for administrative activities by the state
education department. All remaining monies made available for the
purpose described in section eight hundred forty-three of this article
shall be suballocated to the state department of education.
(e) Fifty percent of funds allocated to the state for state level
activities in each year remaining after funding is provided for the
purposes described in paragraphs (a), (b) and (c) of this subdivision
and any amount remaining after funding is provided for employer specific
skills training pursuant to paragraph (d) of this subdivision, shall be
made available for the purposes described in subdivision two of section
eight hundred forty-one of this article. Such funding shall be made
available to substate areas or to the department for the purpose of
responding to plant closings and substantial layoffs including
employment losses involving exceptional circumstances as defined in
subdivision three of section eight hundred forty of this article as
authorized by the commissioner which were unanticipated at the time of
submission of the annual plan required by section eight hundred
thirty-nine of this article. Substate grantees shall have precedence in
receiving such funding. Notwithstanding the requirements of this
paragraph, not more than one-third of such money may be made available
to substate areas for the purpose of responding to significant layoffs
which were unanticipated at the time of submission of the annual plan
required by section eight hundred thirty-nine of this article. For the
purpose of this paragraph significant layoffs shall mean any reduction
in force which is not the result of a plant closing and which results in
an employment loss at a single site of employment of at least
thirty-three percent of the employees (excluding employees regularly
working less than twenty hours per week). Not more than seven percent of
expended funds shall be retained by the substate grantees for
administrative expenses. Each substate grantee with a demand for
services which exceed those otherwise available under the substate plan
shall be eligible for grants according to the following criteria:
(i) the substate grantee must demonstrate its need through submission
of a written request which includes the amount of additional funding
needed, number of dislocated workers or additional dislocated workers to
be served, type of services to be provided, and a description of the
substantial or significant layoff or plant closing which led to the
request;
(ii) requests for additional funding which would provide added
retraining services or regional or statewide services to identify
dislocated workers or additional dislocated workers who are most in need
of services and the types of services they need shall be considered
before funds are released for added basic readjustment services; and
(iii) any funds undistributed at the end of the program year shall be
included as part of the funding made available for activities under
section eight hundred forty-six of this article in each succeeding
program year and allocated pursuant to subdivision three of section
eight hundred forty-eight of this article.
(f) The commissioner shall report to the chairs and ranking minority
members of the senate and assembly labor, finance and ways and means
committees, no later than March first of each year on (i) the amount of
each suballocation or contract made from funds made available through
paragraphs (b) and (c) of this subdivision, including any funds
recaptured pursuant to subdivision four of section eight hundred
forty-eight of this article, (ii) the entity receiving such
suballocation or contract and (iii) the purpose of such suballocation or
contract.
5. Not more than twelve percent of the funds expended pursuant to
paragraph (a) of subdivision two of section eight hundred forty-eight of
this article shall be retained by the substate grantees for
administrative expenses.
Apportionment of funds. 1. For activities included in section
eight hundred forty of this article the department may retain no more
than thirty-six percent of the funds allocated to the state pursuant to
this article.
2. (a) The governor shall reserve an additional ten percent of the
funds allocated to the state pursuant to this article to be allocated
among substate grantees as follows: (i) Each substate grantee which does
not receive fifty thousand dollars from the allocation provided pursuant
to subdivision three of this section shall be allocated from the funds
provided pursuant to this subdivision, the difference between fifty
thousand dollars and the amount provided pursuant to subdivision three
of this section. (ii) The remainder of the allocation made available
pursuant to this subdivision shall be made available to grantees on the
basis of need defined as demand for retraining and basic readjustment
services which exceeds the resources available in the approved substate
plan when such demand is not the result of a plant closing as defined in
subdivision ten of section eight hundred thirty-five of this article or
a substantial layoff as defined in subdivision sixteen of section eight
hundred thirty-five of this article.
(b) Each substate grantee with a demand for services which exceeds
those otherwise available under the substate plan shall be eligible for
funds according to the following criteria:
(i) the substate grantee must demonstrate its need through a plan
modification which includes the amount of additional funding requested,
number of dislocated workers or additional dislocated workers to be
served, type of services to be provided, and a description of the change
in economic conditions which led to the plan modification;
(ii) requests for additional funding which would provide added
retraining services shall be considered before funds are released for
added basic readjustment services;
(iii) any funds provided to substate grantees pursuant to this
subdivision shall be distributed not later than nine months after the
beginning of the program year for which the allotment was made; and
(iv) any funds undistributed at the end of the program year shall be
included as part of the funding made available for activities under
section eight hundred forty-six of this article in each succeeding
program year and allocated pursuant to subdivision three of this
section.
3. For activities included in section eight hundred forty-six of this
article, substate grantees shall receive any remaining funds allocated
to the state, other than those allocated pursuant to subdivisions one
and two of this section.
Funds shall be distributed to substate grantees according to the
following formula:
(a) Ninety-two percent of available funds shall be allocated on the
basis of the total of the number of unemployed persons collecting
benefits under the unemployment insurance program during the most recent
year for which data are available in a substate area added to the number
of residents who were unemployed for fifteen weeks or longer as
determined by the department using data from the current population
survey provided by the federal bureau of labor statistics, the most
recent census, local area unemployment statistics program and other most
recent reliable data measuring such population in a substate area
divided by the total number of such unemployed persons in all substate
areas;
(b) Two percent of available funds shall be allocated on the basis of
the number of unemployed persons residing in areas which have an average
unemployment rate of at least six and one-half percent for the most
recent twelve months as determined by the department using data from the
local area unemployment statistics program in each substate area divided
by the total number of unemployed persons in areas of substantial
unemployment in all substate areas;
(c) Two percent on the basis of the number of unemployment insurance
beneficiaries with no anticipated recall date identified for the most
recent twenty-four month period under the permanent mass layoff and
plant closing statistical series established by the department for a
substate area divided by the total number of such beneficiaries in all
substate areas;
(d) Two percent on the basis of the number of jobs lost during the
most recent five-year period in industries that have declined as
determined by employment reports of employers as filed with the
department under the unemployment insurance program in each substate
area divided by the total number of jobs lost in all substate areas; and
(e) Two percent on the basis of the total number of farms with a
debt/asset ratio of forty percent or more for the most recent year in a
substate area divided by the number of such farms in all substate areas.
4. After March thirty-first of each program year for which funds are
available for the purposes provided in this article, the department is
authorized to reapportion any amount of an allocation otherwise due to a
grantee, the state dislocated worker unit, the state education
department, or any other provider if the department determines that it
cannot obligate such amount for programs pursuant to this article. Such
reapportionment will be redistributed in a manner consistent with the
state plan and applicable federal law and regulations.
Reporting and evaluation. Reporting and evaluation requirements
prescribed by this article shall conform with those stipulated in
article forty-nine of the executive law, the workforce preparation
evaluation act.
ARTICLE 24-A New York State Workforce Investment Act
Legislative findings and objectives. The federal Workforce
Investment Act of 1998 (P.L. 105-220), establishes a flexible state
framework for a national workforce preparation and employment system
designed to meet the needs of the state's businesses, job seekers,
incumbent workers and economic development priorities. The department
shall be the state's lead workforce investment and development agency.
The state strategic training alliance program has been established
jointly within the department and the urban development corporation to
leverage maximum federal workforce investment act resources to address
businesses' demand for a skilled workforce to ensure the continued
economic growth of the state and minimize duplication of services among
partner agencies.
Administration. The department shall be the state's lead
workforce investment and development agency.
New York state workforce investment board. 1. Creation and
constitution. (a) The governor shall establish a board, within the
department, to be known as the New York state workforce investment
board. The board shall be composed of forty-nine members, including the
following permanent members: the governor; two members of the senate,
appointed by the temporary president of the senate; two members of the
assembly, appointed by the speaker of the assembly; the commissioners of
labor, education, of children and family services, temporary and
disability assistance and economic development; the chair of the urban
development corporation and the chancellor of the state university of
New York.
(b) The remaining thirty-seven members of the board shall be appointed
by the governor as follows:
(i) twenty-five representatives of business who:
(A) are owners of businesses, chief executives or operating officers
of businesses, and other business executives or employers with optimum
policymaking or hiring authority, including members of local workforce
investment boards;
(B) represent businesses with employment opportunities that reflect
the employment opportunities of the state;
(C) are appointed from among individuals nominated by state business
organizations and business trade associations; and
(D) include one representative from each of the state's five largest
industry sectors as determined by the department;
(ii) two chief elected officials (representing both cities and
counties, where appropriate);
(iii) four representatives of labor organizations, who have been
nominated by the New York State American Federation of Labor and
Congress of Industrial Organizations;
(iv) two representatives of individuals and organizations that have
experience with respect to youth activities, nominated by state youth
organizations;
(v) two representatives of individuals and organizations that have
experience and expertise in the delivery of workforce investment
activities, including chief executive officers of community colleges and
community-based organizations nominated by associations representing
community colleges and community-based organizations within the state;
(vi) one member who is a veteran nominated from a list provided by the
New York State American Federation of Labor - Congress of Industrial
Organizations; and
(vii) one member with experience in mature worker issues nominated
from a list provided by the New York State American Federation of Labor
- Congress of Industrial Organizations.
(c) Members of the board that represent organizations, agencies, or
other entities shall be members with optimum policymaking authority
within such organizations, agencies or entities. The members of the
board shall represent diverse regions of the state, including urban,
rural and suburban areas.
(d) Members, excluding those specifically designated permanent
members, shall be appointed for the following terms: ten members shall
be appointed for one year; ten members shall be appointed for two years;
and nineteen members shall be appointed for three years. Thereafter, the
terms of new members or members reappointed shall be three years.
(e) The board membership of any appointee described in paragraph (b)
of this subdivision shall cease upon a change in such member's
qualifying status. In such event, the governor shall appoint a new
member representing the same interest as that originally represented by
such member.
(f) Any member appointed to fill a vacancy shall serve the balance of
the term that was vacated.
(g) Members of the board shall receive no compensation, but shall be
entitled to reimbursement for any necessary expenses incurred in
connection with the performance of their duties.
(h) The board shall meet no less than quarterly each calendar year.
2. Chairperson. The governor shall select a chairperson for the board
from among the representatives described in subparagraph (i) of
paragraph (b) of subdivision one of this section.
3. Duties and responsibilities of the board. The board shall assist
the governor in fulfilling the requirements of the federal Workforce
Investment Act of 1998 (P.L.105-220) including:
(a) development of the state plan;
(b) development and continuous improvement of a statewide system of
activities that are funded under subtitle B of title I of the federal
Workforce Investment Act of 1998 (P.L. 105-220) or carried out through a
one-stop delivery system that receives funds under such subtitle,
including:
(i) development of linkages in order to assure coordination and
nonduplication among the programs and activities that comprise the
one-stop delivery system; and
(ii) review of local plans;
(c) commenting at least once annually on the measures taken pursuant
to paragraph fourteen of subdivision (b) of section one hundred thirteen
of the Carl D. Perkins Vocational and Applied Technology Education Act
(20 U.S.C.2323 (b) (14));
(d) designation of local workforce investment areas. With regard to
designations that are not automatic or temporary, the governor may
approve a request from any unit of general local government (including a
combination of such units) for designation as a local area if the board
determines, taking into account the factors described in clauses (i)
through (v) of subparagraph (B) of paragraph (1) of subdivision (a) of
section one hundred sixteen of the federal Workforce Investment Act of
1998 (P.L. 105-220), and recommends to the governor that such area
should be so designated;
(e) development of allocation formulas for the distribution of funds
for adult employment and training activities and youth activities to
local areas;
(f) development and continuous improvement of comprehensive state
performance measures, including state adjusted levels of performance to
assess the effectiveness of the workforce investment activities in the
state;
(g) development of the statewide employment statistics system
described in subdivision (e) of section fifteen of the Wagner/Peyser
Act; and
(h) development of an application for incentive grants awarded by the
secretary of labor to states that exceed the state adjusted levels of
performance.
4. Subcommittees. The board may establish subcommittees to examine
areas of particular interest or to assist it in monitoring the long term
needs of employers and job seekers and setting appropriate goals to
address such needs. Such areas or needs may include, but are not limited
to, incumbent workers, transitional workers, emerging workers, and
apprenticeship.
5. Staffing. Staff support for the state board shall be provided by
the department in consultation with appropriate workforce investment
partners.
6. Conflict of interest. A member of the board may not (a) vote on a
matter under consideration by the state board (i) regarding the
provision of services by such member or by an entity that such member
represents; or (ii) that would provide direct financial benefit to such
member or the immediate family of such member; or (b) engage in any
other activity determined by the governor to constitute a conflict of
interest as specified in the state plan.
7. Removal. Any non-permanent member of the board may be removed by
the governor for cause.
8. Transition. Whenever the job training partnership council, the job
training partnership committee, or the job training coordinating council
is referred to or designated in any general, special or local law, or in
any rule, regulation, contract or other document, such reference shall
be deemed to refer to the New York state workforce investment board.
9. Sunshine provisions. The state board shall make available to the
public, on a regular basis through open meetings, information regarding
the activities of the board, including information regarding the state
plan prior to submission of the plan, information regarding membership,
and, on request, minutes of formal meetings of the state board.
Report. The department shall be responsible for the preparation
of the annual report to the secretary of labor describing those
activities of the workforce investment board taken to comply with the
requirements of the federal Workforce Investment Act of 1998 (P.L.
105-220), as well as a report to the governor and legislature describing
such activities, on or before the first day of January, two thousand one
and on the first day of January in each consecutive year thereafter.
Quarterly work opportunity tax credit reporting. The department
shall make available on its website certain statistical information and
target group eligibility information relating to work opportunity tax
credit certifications approved by the department made pursuant to the
federal Protecting Americans from Tax Hikes Act of 2015 (Pub. L. No.
114-113)(PATH Act). The information relating to certifications issued by
the department that shall be disclosed includes the starting wage,
target group, and position information as reported by employers to the
department on employer applications for certification pursuant to the
PATH Act. No personally identifiable information, including information
identifying specific employers, shall be disclosed by the department.
The department shall make available the information required to be
disclosed by this section no later than ninety days after the effective
date of this section and shall update such information every three
months thereafter.
ARTICLE 25 New York State Job Retention Board
* § 856. Declaration of legislative finding. The legislature finds
that due to the state's continuing loss of business and industry,
declining economy and its resultant excessively high net job loss it is
necessary and appropriate to take new and aggressive steps to promote
and keep business, industry and jobs within the state of New York and it
is therefore in the public interest of the state of New York to create a
mechanism to permit the governor of the state of New York, under
extraordinary circumstances, subject to provisions of this article, to
award a state contract to a New York state resident business bidder over
a non-resident New York state bidder with a lower submitted bid upon a
finding that such award is in the public interest of the state of New
York. The legislature also finds that increased costs incurred by the
state from the award of the state contract to other than the lowest
bidder will be offset by the benefits of continued and/or additional
state and local government tax revenues generated by continued and/or
increased employment within the state, and continued and/or additional
tax revenues from such additional business being generated within this
state.
It is therefore the intent of this article to create and provide the
governor of the state of New York with a mechanism for granting a
preference in the letting of state contracts to New York state resident
bidders, who have substantial economic ties with New York state, and who
contribute to the state's economy where sufficient offsetting benefits
would be realized by New York state in terms of state employment and
generation of state and local tax revenues, through the exercise of this
mechanism.
* NB Expired July 1, 1979
* § 857. New York state job retention board. 1. There is hereby
established a board, to be hereinafter designated as the New York state
job retention board, to be comprised of the following voting members:
the governor of the state of New York, the comptroller of the state of
New York, the attorney general of the state of New York, the industrial
commissioner, the commissioner of commerce, the president of the state
tax commission, and the commissioner of the office of general services.
The executive director of the New York state economic development board
shall be a non-voting ex-officio member.
2. The governor of the state of New York may direct and order the
commissioner of the office of general services or other contracting
offices to award a contract to a bidder, other than the lowest
responsible bidder, whenever such bid substitution in the board's
judgment would best promote the public interest of the state of New
York, pursuant to the provisions of section one hundred seventy-four of
the state finance law, providing such substituting is consistent with
the intent of section eight hundred fifty-six of this chapter and
section one hundred seventy-four of the state finance law.
3. The New York state job retention board may request any bidder on a
state contract to prepare and submit a preferential bidding form.
4. The New York state job retention board shall meet upon the request
of the governor of the state of New York.
* NB Expired July 1, 1979
ARTICLE 25-A New York State Worker Adjustment and Retraining Notification Act
Short title. This article shall be known and may be cited as
the "New York state worker adjustment and retraining notification act".
Definitions. As used in this article, the following terms
shall have the following meanings:
1. "Affected employees" means employees who may reasonably be expected
to experience an employment loss as a consequence of a proposed plant
closing or mass layoff by their employer.
2. "Employment loss" means:
(a) an employment termination, other than a discharge for cause,
voluntary departure, or retirement;
(b) a mass layoff exceeding six months;
(c) a reduction in hours of work of more than fifty percent during
each month of any consecutive six-month period.
"Employment loss" shall not result under circumstances where a plant
closing or mass layoff is the result of the relocation or consolidation
of part or all of the employer's business and, before the closing or
mass layoff, the employer offers to transfer the employee to a different
site of employment within a reasonable commuting distance with no more
than a six-month break in employment, or the employer offers to transfer
the employee to any other site of employment, regardless of distance,
with no more than a six-month break in employment, and the employee
accepts within thirty days of the offer or of the closing or mass
layoff, whichever is later.
3. "Employer" means any business enterprise that employs fifty or more
employees, excluding part-time employees, or fifty or more employees
that work in the aggregate at least two thousand hours per week.
"Employer" shall not include the federal or state government or any of
their political subdivisions, including any unit of local government or
any school district.
4. "Mass layoff" means a reduction in force which:
(a) is not the result of a plant closing; and
(b) results in an employment loss at a single site of employment
during any thirty-day period for:
(i) at least thirty-three percent of the employees (excluding
part-time employees); and
(ii) at least twenty-five employees (excluding part-time employees);
or
(iii) at least two hundred fifty employees (excluding part-time
employees).
5. "Part-time employee" means an employee who is employed for an
average of fewer than twenty hours per week or who has been employed for
fewer than six of the twelve months preceding the date on which notice
is required.
6. "Plant closing" means the permanent or temporary shutdown of a
single site of employment, or one or more facilities or operating units
within a single site of employment, if the shutdown results in an
employment loss at the single site of employment during any thirty-day
period for twenty-five or more employees (other than part-time
employees).
7. "Representative" means an exclusive representative within the
meaning of section 9(a) or 8(f) of the National Labor Relations Act (29
U.S.C. 159(a), 158(f)) or section 2 of the Railway Labor Act (45 U.S.C.
152).
8. "Relocation" means the removal of all or substantially all of the
industrial or commercial operations of an employer to a different
location fifty miles or more away.
Notice. 1. An employer may not order a mass layoff,
relocation, or employment loss, unless, at least ninety days before the
order takes effect, the employer gives written notice of the order to
the following:
(a) affected employees and the representatives of affected employees;
(b) the department;
(c) the local workforce investment boards established pursuant to the
federal Workforce Investment Act (P.L. 105-220) for the locality of the
site of employment at which the mass layoff, relocation, or employment
loss will occur;
(d) the chief elected official of the unit or units of local
government and the school district or districts for the locality of the
site of employment at which the mass layoff, relocation or employment
loss will occur; and
(e) each locality which provides police, firefighting, emergency
medical or ambulance services or other emergency services to the site of
employment within which such mass layoff, relocation, or employment loss
will occur, as applicable.
2. An employer required to give notice of any mass layoff, relocation,
or employment loss under this article shall include in its notice the
elements required by the federal Worker Adjustment and Retraining
Notification Act (29 U.S.C. 2101 et seq.).
3. Notwithstanding the requirements of subdivision one of this
section, an employer is not required to provide notice if a mass layoff,
relocation, or employment loss is necessitated by a physical calamity or
an act of terrorism or war.
4. The mailing of notice to an employee's last known address by either
first class or certified mail or the inclusion of notice in an
employee's paycheck shall be considered acceptable methods for
fulfillment of the employer's obligation to give notice to each affected
employee under this article.
5. In the case of a sale of part or all of an employer's business, the
seller shall be responsible for providing notice for any plant closing
or mass layoff in accordance with this section, up to and including the
effective date of the sale. After the effective date of the sale of part
or all of an employer's business, the purchaser shall be responsible for
providing notice for any plant closing or mass layoff in accordance with
this section. Notwithstanding any other provision of this article, any
person who is an employee of the seller as of the effective date of the
sale shall be considered an employee of the purchaser immediately after
the effective date of the sale.
6. Nothing set forth herein shall be read to abridge, abrogate, or
restrict the right of any state or local entity to require an employer
that is receiving state or local economic development incentives for
doing or continuing to do business in this state from being required to
provide additional or earlier notice as a condition for the receipt of
such incentives.
7. Nothing set forth herein shall be read to prevent an employer who
is not required to comply with the notice requirements of this section,
to the extent possible, to provide notice to its employees about a
proposal to close a plant or permanently reduce its workforce.
8. Calendar days. All references in this article to "days" shall be
deemed to mean calendar days.
Exceptions. 1. In the case of a plant closing, an employer is
not required to comply with the notice requirement in subdivision one of
section eight hundred sixty-b of this article if:
(a)(i) at the time the notice would have been required, the employer
was actively seeking capital or business; and
(ii) the capital or business sought, if obtained, would have enabled
the employer to avoid or postpone the relocation or termination; and
(iii) the employer reasonably and in good faith believed that giving
the notice required by subdivision one of section eight hundred sixty-b
of this article would have precluded the employer from obtaining the
needed capital or business;
(b) the need for a notice was not reasonably foreseeable at the time
the notice would have been required;
(c) the plant closing is of a temporary facility or the plant closing
or mass layoff is the result of the completion of a particular project
or undertaking, and the affected employees were hired with the
understanding that their employment was limited to the duration of the
facility or project or undertaking;
(d) the plant closing or mass layoff is due to any form of natural
disaster, such as a flood, earthquake, or drought; or
(e) the closing or mass layoff constitutes a strike or constitutes a
lockout not intended to evade the requirements of this article. Nothing
in this article shall require an employer to serve written notice when
permanently replacing a person who is deemed to be an economic striker
under the National Labor Relations Act (29 U.S.C. 151 et seq.). Nothing
in this article shall be deemed to validate or invalidate any judicial
or administrative ruling relating to the hiring of permanent
replacements for economic strikers under the National Labor Relations
Act.
2. An employer unable to provide the notice otherwise required by this
article in a timely fashion as a result of circumstances described in
subdivision one of this section, shall provide as much notice as is
practicable and at that time shall provide a brief statement of the
basis for reducing the notification period.
Extension of mass layoff period. A mass layoff of more than
six months which, at its outset, was announced to be a mass layoff of
six months or less shall be treated as an employment loss under this
article unless:
1. the extension beyond six months is caused by business circumstances
(including unforeseeable changes in price or cost) not reasonably
foreseeable at the time of the initial mass layoff; and
2. notice is given at the time it becomes reasonably foreseeable that
the extension beyond six months will be required.
Determinations with respect to employment loss. In
determining whether a plant closing or mass layoff has occurred or will
occur, employment losses for two or more groups of employees at a single
site of employment, each of which is less than the minimum number of
employees specified in subdivisions four or six of section eight hundred
sixty-a of this article but which in the aggregate meet or exceed that
minimum number set forth in such subdivisions, and which occur within
any ninety-day period shall be considered to be a plant closing or mass
layoff unless the employer demonstrates that the employment losses are
the result of separate and distinct actions and causes and are not an
attempt by the employer to evade the requirements of this article.
Powers of the commissioner. 1. The commissioner shall
prescribe such rules as may be necessary to carry out this article. The
rules shall, at a minimum, include provisions that allow the parties
access to administrative hearings for any actions of the department
under this article.
2. In any investigation or proceeding under this article, the
commissioner has, in addition to all other powers granted by law, the
authority to examine any information of an employer necessary to
determine whether a violation of this article has occurred, including to
determine the validity of any defense.
3. Except as provided in this section, information obtained through
administration of this article from an employer subject to this article
and which is not otherwise obtainable by the commissioner under this
chapter shall: (a) be confidential; and (b) not be published or open to
public inspection. Prior to public disclosure of any such information in
connection with any court action or proceeding, the employer shall be
given a reasonable opportunity to make application to protect the
information's confidentiality.
4. No decision or order issued pursuant to this article shall be
admissible or used in evidence in any subsequent court proceeding except
in an action by the commissioner or the employer to implement, enforce,
or challenge a determination made by the commissioner pursuant to this
article.
5. Any officer or employer of the state, any officer or employee of
any entity authorized to obtain information pursuant to this section,
and any agent to this state or of such entity who, except with authority
of the commissioner under this section, discloses information is guilty
of a misdemeanor.
6. If, after an administrative hearing, the commissioner shall
determine that an employer has violated any of the requirements of this
article or any rules or regulations promulgated hereunder, the
commissioner shall issue an order which shall include any penalties
assessed by the commissioner under sections eight hundred sixty-g and
eight hundred sixty-h of this article. 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 commissioner. Such 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 commissioner, the commissioner may file with the county clerk of the
county where the employer resides or has a place of business the order
of the commissioner 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 commissioner 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.
7. The commissioner shall distribute any back pay and the value of any
benefits recovered to any employees subject to the violation.
Violation; liability. 1. An employer who fails to give notice
as required by paragraph (a) of subdivision one of section eight hundred
sixty-b of this article before ordering a mass layoff, relocation, or
employment loss is liable to each employee entitled to notice who lost
his or her employment for:
(a) Back pay at the average regular rate of compensation received by
the employee during the last three years of his or her employment, or
the employee's final rate of compensation, whichever is higher.
(b) The value of the cost of any benefits to which the employee would
have been entitled had his or her employment not been lost, including
the cost of any medical expenses incurred by the employee that would
have been covered under an employee benefit plan.
2. Back pay and other liability under this section is calculated for
the period of the employer's violation, up to a maximum of sixty days,
or one-half the number of days that the employee was employed by the
employer, whichever period is smaller.
3. Payments to an employee under this section by an employer who has
failed to provide the advance notice of a facility closure required by
this article or the federal Worker Adjustment and Retraining
Notification Act (29 U.S.C. Sec. 1201 et seq.) shall not be construed as
remuneration under article eighteen of this chapter. Unemployment
insurance benefits under article eighteen of this chapter may not be
denied or reduced because of the receipt of payments related to an
employer's violation of this article or the federal Worker Adjustment
and Retraining Notification Act.
4. The amount of an employer's liability under subdivision one of this
section, shall be reduced by the following:
(a) Any wages, except vacation moneys accrued before the period of the
employer's violation, paid by the employer to the employee during the
period of the employer's violation.
(b) Any voluntary and unconditional payments made by the employer to
the employee that were not required to satisfy any legal obligation.
(c) Any payments by the employer to a third party or trustee, such as
premiums for health benefits or payments to a defined contribution
pension plan, on behalf of and attributable to the employee for the
period of the violation.
(d) Any liability paid by the employer under any applicable federal
law governing notification of mass layoffs, plant closings, or
relocations.
(e) In an administrative proceeding by the commissioner, any liability
paid by the employer prior to the commissioner's determination as the
result of a private action brought under this article.
(f) In a private action brought under this article, any liability paid
by the employer in an administrative proceeding by the commissioner
prior to the adjudication of such private action.
5. Any liability incurred by an employer under subdivision one of this
section with respect to a defined benefit pension plan may be reduced by
crediting the employee with service for all purposes under such a plan
for the period of the violation.
6. If an employer proves to the satisfaction of the commissioner that
the act or omission that violated this article was in good faith and
that the employer had reasonable grounds for believing that the act or
omission was not a violation of this article, the commissioner may, in
his or her discretion, reduce the amount of liability provided for in
this section. In determining the amount of such reduction, the
commissioner shall consider (a) the size of the employer; (b) the
hardships imposed on employees by the violation; (c) any efforts by the
employer to mitigate the violation; and (d) the grounds for the
employer's belief.
7. An aggrieved employee, local government, or an employee
representative seeking to establish liability against an employer may
bring a civil action on behalf of the person, other persons similarly
situated, or both, in any court of competent jurisdiction, within the
time period provided by section two hundred thirteen of the civil
practice law and rules. The court may award reasonable attorneys' fees
as part of costs to any plaintiff who prevails in a civil action brought
under this article. If the court determines that an employer conducted a
reasonable investigation in good faith, and had reasonable grounds to
believe that its conduct was not a violation of this article, the court
may reduce the amount of any penalty it would otherwise impose against
the employer under this article.
8. Neither the commissioner nor any court shall have the authority to
enjoin a plant closing, relocation, or mass layoff under this article.
Civil penalty. 1. An employer who fails to give notice as
required by paragraph (b) of subdivision one of section eight hundred
sixty-b of this article is subject to a civil penalty of not more than
five hundred dollars for each day of the employer's violation. The
employer is not subject to a civil penalty under this section if the
employer pays to all applicable employees the amounts for which the
employer is liable under section eight hundred sixty-g within three
weeks from the date the employer orders the mass layoff, relocation, or
employment loss.
2. The total amount of penalties for which an employer may be liable
under this section shall not exceed the maximum amount of penalties for
which the employer may be liable under federal law for the same
violation.
3. Any penalty amount paid by the employer under federal law shall be
considered a payment made under this article.
4. If an employer proves to the satisfaction of the commissioner that
the act or omission that violated this article was in good faith and
that the employer had reasonable grounds for believing that the act or
omission was not a violation of this article, the commissioner may in
his or her discretion reduce the amount of the penalty provided for in
this section. In determining the amount of such reduction, the
commissioner shall consider (a) of the size of the employer; (b) the
hardships imposed on employees by the violations; (c) any efforts by the
employer to mitigate the violation; and (d) the grounds for the
employer's belief.
Other rights. The rights and remedies provided to employees
by this article are in addition to, and not in lieu of, any other
contractual or statutory rights and remedies of the employees, and are
not intended to alter or affect such rights and remedies, except that
the period of notification required by this article shall run
concurrently with any period of notification required by contract or by
any other statute.
ARTICLE 25-B The New York State Construction Industry Fair Play Act
Short title. This article shall be known and may be cited as
"the New York state construction industry fair play act".
Legislative findings and intent. The legislature hereby finds
and declares that New York state's construction industry is experiencing
dangerous levels of employee misclassification fraud. Unscrupulous
employers are intentionally reporting employees as independent
contractors to state and federal authorities or workers' compensation
carriers in record numbers. In addition, there has been an explosion of
employers who operate in the underground economy and fail to report all
or a sizable portion of their workers.
The legislature hereby finds and declares that recent studies of New
York city's construction industry alone suggests that as many as fifty
thousand New York city construction workers -- nearly one in four -- are
either misclassified as independent contractors or are employed by
construction contractors completely off the books. Construction industry
fraud reduces government revenue, shifts tax and workers' compensation
insurance costs to law-abiding employees, lowers working conditions and
steals jobs from legitimate employers and their employees.
Therefore, the legislature hereby finds and declares that government
has an obligation to curb this underground economy, enforce
long-standing employment laws, ensure compliance with essential social
insurance protections and eliminate the unfair competitive advantage
from contractors in the underground economy by and through the enactment
of the New York state construction industry fair play act.
Definitions. As used in this article:
1. "Construction" means constructing, reconstructing, altering,
maintaining, moving, rehabilitating, repairing, renovating or demolition
of any building, structure, or improvement, or relating to the
excavation of or other development or improvement to land.
2. "Contractor" means any sole proprietor, partnership, firm,
corporation, limited liability company, association or other legal
entity permitted by law to do business within the state who engages in
construction as defined in this article.
3. "Contractor" includes a general contractor and a subcontractor.
4. "Department" means the department of labor.
5. "Commissioner" means the commissioner of labor.
6. "Employer" means any contractor that employs individuals deemed
employees under this article.
Presumption of employment in the construction industry. 1.
Any person performing services for a contractor shall be classified as
an employee unless the person is a separate business entity under
subdivision two of this section or all of the following criteria are
met, in which case the person shall be an independent contractor:
(a) the individual is free from control and direction in performing
the job, both under his or her contract and in fact;
(b) the service must be performed outside the usual course of business
for which the service is performed; and
(c) the individual is customarily engaged in an independently
established trade, occupation, profession, or business that is similar
to the service at issue.
2. A business entity, including any sole proprietor, partnership,
corporation or entity that may be a contractor under this section shall
be considered a separate business entity from the contractor where all
the following criteria are met:
(a) the business entity is performing the service free from the
direction or control over the means and manner of providing the service,
subject only to the right of the contractor for whom the service is
provided to specify the desired result;
(b) the business entity is not subject to cancellation or destruction
upon severance of the relationship with the contractor;
(c) the business entity has a substantial investment of capital in the
business entity beyond ordinary tools and equipment and a personal
vehicle;
(d) the business entity owns the capital goods and gains the profits
and bears the losses of the business entity;
(e) the business entity makes its services available to the general
public or the business community on a continuing basis;
(f) the business entity includes services rendered on a Federal Income
Tax Schedule as an independent business or profession;
(g) the business entity performs services for the contractor under the
business entity's name;
(h) when the services being provided require a license or permit, the
business entity obtains and pays for the license or permit in the
business entity's name;
(i) the business entity furnishes the tools and equipment necessary to
provide the service;
(j) if necessary, the business entity hires its own employees without
contractor approval, pays the employees without reimbursement from the
contractor and reports the employees' income to the Internal Revenue
Service;
(k) the contractor does not represent the business entity as an
employee of the contractor to its customers; and
(l) the business entity has the right to perform similar services for
others on whatever basis and whenever it chooses.
3. The failure to withhold federal or state income taxes or to pay
unemployment compensation contributions or workers' compensation
premiums with respect to an individual's wages shall not be considered
in making a determination under this section, except as set forth in
paragraph (f) of subdivision two of this section.
4. An individual's act of securing workers' compensation insurance
with a carrier as a sole proprietor, partnership or otherwise shall not
be binding on any determination under this section.
5. When a business entity meets the definition of a separate business
entity pursuant to subdivision two of this section, the separate
business entity will be considered a contractor subject to all the
provisions of this article in regard to the classification of
individuals performing services for it.
Notice to persons receiving remuneration from contractors and
subcontractors. 1. Every contractor shall post in a prominent and
accessible place on the site where the construction is performed a
legible statement, provided by the commissioner, that describes the
responsibility of independent contractors to pay taxes required by state
and federal law, the rights of employees to workers' compensation,
unemployment benefits, minimum wage, overtime and other federal and
state workplace protections, and the protections against retaliation and
the penalties in this article if the contractor fails to properly
classify an individual as an employee. This notice shall also contain
contact information for individuals to file complaints or inquire with
the commissioner about employment classification status. This
information shall be provided in English, Spanish or other languages
required by the commissioner. The posted statement shall be constructed
of materials capable of withstanding adverse weather conditions.
2. Within thirty days of the effective date of this article, the
commissioner shall create the notice described in subdivision one of
this section and post the notice on the department's website for
downloading by contractors.
3. Contractors who violate this section shall be subject to a civil
penalty of up to one thousand five hundred dollars for a first
violation, and up to five thousand dollars for a subsequent violation
within a five year period.
Violations and penalties. 1. Any contractor who wilfully
fails to properly classify an individual as an employee as provided
under section eight hundred sixty-one-c of this article shall be subject
to the civil and criminal penalties provided under this section. The
civil penalties set forth in this section shall be imposed as follows:
by the commissioner where such penalty is based on a violation of this
chapter; by the chair of the workers' compensation board where such
penalty is based on a violation of the workers' compensation law; and by
the commissioner of tax and finance when such penalty is based on a
violation of the tax law, provided that no more than one civil penalty
under this section may be imposed per employee per incident of
misclassification.
(a) The workers' compensation board shall provide a copy of any order
relating to the misclassification of an employee, the intentional and
material underpayment or concealment of payroll, or the failure to
secure workers' compensation in the construction industry to the
commissioner and commissioner of taxation and finance no later than
seven days after the issuance of the order.
(b) Notwithstanding the secrecy provisions contained in articles
nine-A and twenty-two of the tax law, the department of taxation and
finance shall provide a copy of any assessment for failure to pay
business, corporate or personal income tax by an employer in the
construction industry arising out of the misclassification of an
employee to the commissioner and chair of the workers' compensation
board no later than seven days after the issuance of the assessment.
(c) Upon the issuance of an order or determination by the commissioner
for a violation and penalties under this article, the commissioner shall
provide a copy of the order to the chair of the workers' compensation
board and the commissioner of taxation and finance no later than seven
days after the issuance of the order.
2. For the purposes of this section, the term "willfully violates"
means a contractor knew or should have known that his or her conduct was
prohibited by this section.
3. Any contractor who willfully violates section eight hundred
sixty-one-c of this article shall be subject to a civil penalty of up to
twenty-five hundred dollars for the first violation per misclassified
employee and to a civil penalty of up to five thousand dollars for each
subsequent violation per misclassified employee within a five year
period.
4. In addition to civil penalties, the criminal penalties imposed on a
contractor who willfully violates the provisions of this article shall
be a misdemeanor and upon conviction shall be punished for a first
offense by imprisonment for not more than thirty days or a fine not to
exceed twenty-five thousand dollars and for a subsequent offense by
imprisonment for not more than sixty days or a fine not to exceed fifty
thousand dollars.
5. If the contractor is a corporation, any officer of such corporation
or shareholder who owns or controls at least ten percent of the
outstanding stock of such corporation who knowingly permits the
corporation to willfully violate the provisions of this article shall
also be in violation of this article and the civil and criminal
penalties herein shall attach to such officer upon conviction.
6. Any contractor subject to civil penalties under this article shall
also be subject to any other applicable penalties or remedies provided
by law for failure to pay any other statutory payment or coverage
obligations, including but not limited to, unemployment insurance,
workers' compensation insurance, or business, corporate or personal
income tax, as follows:
(a) for failure to pay unemployment insurance tax, the penalties
imposed by section five hundred seventy of this chapter.
(b) for intentional and material understatement or concealment of
payroll or failure to secure workers' compensation insurance, the
penalties imposed by paragraph (d) of subdivision one of section
fifty-two of the workers' compensation law, and for failure to keep a
true and accurate record pursuant to section one hundred thirty-one of
the workers' compensation law, the penalties of section one hundred
thirty-one of the workers' compensation law.
(c) for failure to pay business, corporate or personal income tax, the
penalties imposed by section six hundred eighty-five and one thousand
eighty-five of the tax law.
7. Any contractor or any officer or shareholder who owns or controls
at least ten percent of the outstanding stock of such corporation that
has been convicted of a misdemeanor shall be subject to debarment and be
ineligible to submit a bid on or be awarded any public works contract
with the state, any municipal corporation, public benefit corporation,
public authority or public body for a period of up to one year from the
date of such conviction or final determination, or up to five years in
the event of any subsequent violation.
8. Any substantially owned affiliated entity of a contractor, as
defined by paragraph g of subdivision five of section two hundred twenty
of this chapter, shall be subject to the same civil penalty provided
under this article for a violation of such provision.
9. Any penalties imposed under this section by the commissioner shall
be appealed to the industrial board of appeals in accordance with
article three of this chapter. Any penalties imposed under this section
by the workers' compensation board or commissioner of taxation and
finance shall be appealed in the same manner as the underlying
violation.
10. Nothing in this section shall limit the availability of other
remedies at law or in equity for a violation of this article.
11. Any fee or penalty assessed for a violation of this article shall
be deposited into the department's fee and penalty account.
Retaliation. 1. It is a violation of this article for an
employer or any agent of any employer, to retaliate through discharge or
in any other manner against any person in the terms of conditions of his
or her employment for exercising any rights granted under this article
for:
(a) making, or threatening to make, a complaint to an employer,
co-worker or to a public body that rights guaranteed under this article
have been violated;
(b) causing to be instituted any proceeding under or related to this
article; or
(c) providing information to, or testifying before, any public body
conducting an investigation, hearing or inquiry into any such violation
of a law, rule or regulation by such employer. Nothing in this section
shall limit the commissioner's authority under section two hundred
fifteen of the labor law, or any other statute.
2. Any act of retaliation under this section shall subject an employer
to the civil penalties under section eight hundred sixty-one-e of this
article, or to a private cause of action, or both.
Contractor accountability. When a contractor or
sub-contractor is found to have failed to pay all wages as required by
article six or nineteen of this chapter, either by a final order issued
by the commissioner, an assurance of discontinuance or final settlement
with the office of the attorney general, or a final judgment or order of
a court of competent jurisdiction, the contractor or sub-contractor
shall notify all of its employees of the nature of these violations.
Notification summarizing the findings shall be made via paycheck
attachment to employees at all worksites according to such form and
manner ordered by the commissioner. The commissioner shall have the
authority to promulgate rules necessary to effectuate the terms of this
section.
ARTICLE 25-C The New York State Commercial Goods Transportation Industry Fair Play Act
Short title. This article shall be known and may be cited as
the "New York state commercial goods transportation industry fair play
act".
Definitions. As used in this article:
1. "Commercial goods transportation contractor" means any sole
proprietor, partnership, firm, corporation, limited liability company,
association or other legal entity that compensates a driver who
possesses a state-issued driver's license, transports goods in the state
of New York and operates a commercial motor vehicle as defined in
subdivision four-a of section two of the transportation law.
2. "Commercial goods transportation contractor" includes a general
commercial goods transportation contractor or a commercial goods
transportation subcontractor.
3. "Commercial goods transportation services" means the transportation
of goods for compensation by a driver who possesses a state-issued
driver's license, transports goods in the state of New York, and
operates a commercial motor vehicle as defined in subdivision four-a of
section two of the transportation law.
4. "Department" means the department of labor.
5. "Commissioner" means the commissioner of labor.
6. "Employer" means any commercial goods transportation contractor
which compensates a person classified as an employee under section eight
hundred sixty-two-b of this article.
Presumption of employment in the commercial goods
transportation industry. 1. Any person performing commercial goods
transportation services for a commercial goods transportation contractor
shall be classified as an employee of the commercial goods
transportation contractor unless payment for such services is reported
on a Federal Income Tax form 1099 if required by law and either the
person is a separate business entity under subdivision two of this
section or all of the following criteria are met, in which case the
person shall be an independent contractor:
(a) the individual is free from control and direction in performing
the job, both under his or her contract and in fact;
(b) the service must be performed outside the usual course of business
for which the service is performed; and
(c) the individual is customarily engaged in an independently
established trade, occupation, profession, or business that is similar
to the service at issue.
2. A business entity, including any sole proprietor, partnership,
firm, corporation, limited liability company, association or other legal
entity that may also be a commercial goods transportation contractor
under this section shall be considered a separate business entity from
the commercial goods transportation contractor where all the following
criteria are met:
(a) the business entity is performing the service free from the
direction or control over the means and manner of providing the service,
subject only to the right of the commercial goods transportation
contractor for whom the service is provided to specify the desired
result or federal rule or regulation;
(b) the business entity is not subject to cancellation or destruction
upon severance of the relationship with the commercial goods
transportation contractor;
(c) the business entity has a substantial investment of capital in the
business entity, including but not limited to ordinary tools and
equipment;
(d) the business entity owns or leases the capital goods and gains the
profits and bears the losses of the business entity;
(e) the business entity may make its services available to the general
public or others not a party to the business entity's written contract
referenced in paragraph (g) of this subdivision in the business
community on a continuing basis;
(f) the business entity provides services reported on a Federal Income
Tax form 1099, if required by law;
(g) the business entity performs services for the commercial goods
transportation contractor pursuant to a written contract, under the
business entity's name, specifying their relationship to be as
independent contractors or separate business entities;
(h) when the services being provided require a license or permit, the
business entity pays for the license or permit in the business entity's
name or, where permitted by law, pays for reasonable use of the
commercial goods transportation contractor's license or permit;
(i) if necessary, the business entity hires its own employees without
the commercial goods transportation contractor's approval, subject to
applicable qualification requirements or federal or state laws, rules or
regulations, and pays the employees without reimbursement from the
commercial goods transportation contractor;
(j) the commercial goods transportation contractor does not require
that the business entity be represented as an employee of the commercial
goods transportation contractor to its customers; and
(k) the business entity has the right to perform similar services for
others on whatever basis and whenever it chooses.
3. The failure to withhold federal or state income taxes or to pay
unemployment compensation contributions or workers' compensation
premiums with respect to an individual's wages shall not be considered
in making a determination under this section, except as set forth in
paragraph (f) of subdivision two of this section.
4. An individual's act of securing workers' compensation insurance
with a carrier as a sole proprietor, partnership or otherwise shall not
be binding on any determination under this section.
5. When a business entity meets the definition of a separate business
entity pursuant to subdivision two of this section, the separate
business entity will be considered a commercial goods transportation
contractor subject to all the provisions of this article in regard to
the classification of individuals performing services for it.
Notice to persons receiving remuneration from commercial
goods transportation contractors and commercial goods transportation
subcontractors. 1. Every commercial goods transportation contractor
shall post in a prominent and accessible place on the site where
commercial goods transportation activity is conducted a legible
statement, provided by the commissioner, that describes the
responsibility of independent contractors to pay taxes required by state
and federal law, the rights of employees to workers' compensation,
unemployment benefits, minimum wage, overtime and other federal and
state workplace protections, and the protections against retaliation and
the penalties in this article if the contractor fails to properly
classify an individual as an employee. This notice shall also contain
contact information for individuals to file complaints or inquire with
the commissioner about employment classification status. This
information shall be provided in English, Spanish or other languages
required by the commissioner.
2. Within thirty days of the effective date of this article, the
commissioner shall create the notice described in subdivision one of
this section and post the notice on the department's website for
downloading by commercial goods transportation contractors.
3. Commercial goods transportation contractors who violate this
section shall be subject to a civil penalty of up to one thousand five
hundred dollars for a first violation, and up to five thousand dollars
for a subsequent violation within a five year period.
Violations and penalties. 1. Any commercial goods
transportation contractor who willfully fails to properly classify an
individual as an employee as provided under section eight hundred
sixty-two-b of this article shall be subject to the civil and criminal
penalties provided under this section. The civil penalties set forth in
this section shall be imposed as follows: by the commissioner where such
penalty is based on a violation of this chapter; by the chair of the
workers' compensation board where such penalty is based on a violation
of the workers' compensation law; and by the commissioner of taxation
and finance when such penalty is based on a violation of the tax law,
provided that no more than one civil penalty under this section may be
imposed per employee per incident of misclassification.
(a) The workers' compensation board shall provide a copy of any order
relating to the misclassification of an employee, the intentional and
material underpayment or concealment of payroll, or the failure to
secure workers' compensation in the commercial goods transportation
industry to the commissioner and commissioner of taxation and finance no
later than seven days after the issuance of the order.
(b) Notwithstanding the secrecy provisions contained in articles
nine-A and twenty-two of the tax law, the department of taxation and
finance shall provide a copy of any assessment for failure to pay
business, corporate or personal income tax by an employer in the
commercial goods transportation industry arising out of the
misclassification of an employee to the commissioner and chair of the
workers' compensation board no later than seven days after the issuance
of the assessment.
(c) Upon the issuance of an order or determination by the commissioner
for a violation and penalties under this article, the commissioner shall
provide a copy of the order to the chair of the workers' compensation
board and the commissioner of taxation and finance no later than seven
days after the issuance of the order.
2. For the purposes of this section, the term "willfully violates"
means a commercial goods transportation contractor knew or should have
known that his or her conduct was prohibited by this section.
3. Any commercial goods transportation contractor who willfully
violates section eight hundred sixty-two-b of this article shall be
subject to a civil penalty of up to twenty-five hundred dollars for the
first violation per misclassified employee and to a civil penalty of up
to five thousand dollars for each subsequent violation per misclassified
employee within a five year period.
4. In addition to civil penalties, the criminal penalties imposed on a
commercial goods transportation contractor who willfully violates the
provisions of this article shall be a misdemeanor and upon conviction
shall be punished for a first offense by imprisonment for not more than
thirty days or a fine not to exceed twenty-five thousand dollars and for
a subsequent offense by imprisonment for not more than sixty days or a
fine not to exceed fifty thousand dollars.
5. If the commercial goods transportation contractor is a corporation,
any officer of such corporation or shareholder who owns or controls at
least ten percent of the outstanding stock of such corporation who
knowingly permits the corporation to willfully violate the provisions of
this article shall also be in violation of this article and the civil
and criminal penalties herein shall attach to such officer upon
conviction.
6. Any commercial goods transportation contractor subject to civil
penalties under this article shall also be subject to any other
applicable penalties or remedies provided by law for failure to pay any
other statutory payment or coverage obligations, including but not
limited to, unemployment insurance, workers' compensation insurance, or
business, corporate or personal income tax, as follows:
(a) for failure to pay unemployment insurance tax, the penalties
imposed by section five hundred seventy of this chapter.
(b) for intentional and material understatement or concealment of
payroll or failure to secure workers' compensation insurance, the
penalties imposed by paragraph (d) of subdivision one of section
fifty-two of the workers' compensation law, and for failure to keep a
true and accurate record pursuant to section one hundred thirty-one of
the workers' compensation law, the penalties of section one hundred
thirty-one of the workers' compensation law.
(c) for failure to pay business, corporate or personal income tax, the
penalties imposed by section six hundred eighty-five and one thousand
eighty-five of the tax law.
7. Any commercial goods transportation contractor or any officer or
shareholder who owns or controls at least ten percent of the outstanding
stock of such corporation that has been convicted of a misdemeanor shall
be subject to debarment and be ineligible to submit a bid on or be
awarded any public works contract with the state, any municipal
corporation, public benefit corporation, public authority or public body
for a period of up to one year from the date of such conviction or final
determination, or up to five years in the event of any subsequent
violation.
8. Any substantially owned affiliated entity of a commercial goods
transportation contractor, as defined by paragraph g of subdivision five
of section two hundred twenty of this chapter, shall be subject to the
same civil penalty provided under this article for a violation of such
provision.
9. Any penalties imposed under this section by the commissioner shall
be appealed to the industrial board of appeals in accordance with
article three of this chapter. Any penalties imposed under this section
by the workers' compensation board or commissioner of taxation and
finance shall be appealed in the same manner as the underlying
violation.
10. Nothing in this section shall limit the availability of other
remedies at law or in equity for a violation of this article.
11. Any fee or penalty assessed for a violation of this article shall
be deposited into the department's fee and penalty account.
Retaliation. 1. It is a violation of this article for an
employer or any agent of any employer, to retaliate through discharge or
in any other manner against any person in the terms of conditions of his
or her employment for exercising any rights granted under this article
for:
(a) making, or threatening to make, a complaint to an employer,
co-worker or to a public body that rights guaranteed under this article
have been violated;
(b) causing to be instituted any proceeding under or related to this
article; or
(c) providing information to, or testifying before, any public body
conducting an investigation, hearing or inquiry into any such violation
of a law, rule or regulation by such employer. Nothing in this section
shall limit the commissioner's authority under section two hundred
fifteen of this chapter, or any other statute.
2. Any act of retaliation under this section shall subject an employer
to the civil penalties under section eight hundred sixty-two-d of this
article, or to a private cause of action, or both.
ARTICLE 26 Safety In Skiing
Short title. This article shall be known and may be cited as
the "safety in skiing act".
Declaration of legislative findings. The legislature hereby
finds that alpine or downhill skiing is both a major recreational sport
and a major industry within the state of New York. The legislature
further finds: (a) that downhill skiing, like many other sports, is not
without some inherent risks; (b) that downhill skiing, without
established rules of conduct and care, may result in injuries to persons
and property; and (c) that it is necessary and appropriate, as well as
in the public interest, to take steps to protect downhill skiers from
undue, unnecessary and unreasonable hazards, and to encourage and
promote safety in the downhill ski industry.
It is, therefore, the intent of this article to create and provide for
the promulgation of a code of conduct for downhill skiers and ski area
operators which will minimize the risk of injury to persons and property
engaged in the sport of downhill skiing.
Safety in skiing code. 1. The commissioner, on the advice of
the passenger tramway advisory council as created pursuant to section
twelve-c of this chapter, shall promulgate rules and regulations,
consistent with article eighteen of the general obligations law,
intended to guard against personal injuries to downhill skiers which
will, in view of such intent, define the duties and responsibilities of
downhill skiers and the duties and responsibilities of ski area
operators.
2. The commissioner shall enforce all the provisions of this article
and the regulations adopted pursuant hereto and may issue such orders
against any entity, public or private, as he finds necessary, directing
compliance with any provision of this article or such regulations. The
commissioner may also investigate any fatality or injury resulting in a
fatality at a ski area.
3. The passenger tramway advisory council shall conduct any
investigation necessary to carry out the provisions of this article.
4. The passenger tramway advisory council shall conduct public
hearings on any rules and regulations proposed under this section prior
to their promulgation by the commissioner. The passenger tramway
advisory council shall fix a time and place for each such hearing and
cause such notice as it may deem appropriate to be given to the public
and news media prior to such a hearing. Testimony may be taken and
evidence received at such a hearing pursuant to procedures prescribed by
the passenger tramway advisory council.
5. Upon advice of the passenger tramway advisory council, the
commission shall, on the fifteenth day of March, nineteen hundred
eighty-nine, promulgate rules which shall set forth specifications for
the uniform textual and graphic content, physical description, and
conspicuous posting of a "Warning to Skiers" regarding the risks
inherent in the sport as set forth in section 18-101 of the general
obligations law, which shall be posted and provided to skiers by ski
areas operators in accordance with subdivision one of section 18-106 of
the general obligations law, and shall promulgate rules which shall set
forth textual and graphic specifications designed to occupy not more
than twenty-five percent of the imprintable surface area of the face
side nor more than eighty percent of the imprintable surface area of the
reverse side or backing paper of all lift tickets sold or distributed in
the state, as defined by section 18-102 of the general obligations law,
which shall uniformly serve to direct the attention of all skiers to the
"Warning to Skiers" herein directed to be promulgated and required by
section 18-106 of the general obligations law.
Separability. If any part or provision of this act or the
application thereof to any person is adjudged by a court of competent
jurisdiction to be unconstitutional, such judgment shall not affect or
impair any other part or provision or the application thereof to any
other person, but shall be confined in its operation to the part,
provision, or person directly involved in the controversy.
ARTICLE 27 Carnival, Fair and Amusement Park Safety
Legislative intent. 1. The purpose of this article is to
guard against personal injuries in the assembly, disassembly and use of
amusement devices, viewing stands and tents at carnivals, fairs and
amusement parks to persons employed at or attending the same, and, in
the event of a personal injury, to insure to the injured party the
possibility of financial recovery as against the owner of the carnival,
fair or amusement park where the injury occurred.
2. It is the intent of this article that such devices, viewing stands
and tents shall be so designed, constructed, assembled or disassembled,
maintained and operated as to prevent such injuries.
Definitions. As used herein, the following terms have the
meanings indicated:
1. "Amusement device" means any contrivance that carries and conveys
passengers along, around or over a fixed or restricted course or within
a defined area for the purpose of amusing or entertaining its
passengers, and which is of such nature that accidental personal
injuries may be incurred in its assembly, disassembly or use.
2. "Amusement park" means a tract or area used principally as a
permanent location for amusement devices or structures.
3. "Commissioner" means the commissioner of labor of the state.
4. "Carnival" means an itinerant enterprise consisting principally of
temporary amusement devices or mechanical rides, acrobatic or magic
shows, games, stunts or zoo animals operated to provide entertainment or
amusement to the public.
5. "Fair" means an enterprise principally devoted to the exhibition of
the products of agriculture or industry and at which amusement devices
or temporary structures, viewing stands or tents are provided for use by
the public.
6. "Owner" means a person, corporation, partnership or association who
owns an amusement device, viewing stand or tent or in the event that the
amusement device, viewing stand or tent is leased, the lessee.
7. "Permanent device" means a device which is used, or intended to be
used, as an amusement device that is erected to remain a lasting part of
the premises.
8. "Temporary device" means a device which is used as an amusement
device that is regularly relocated from time to time with or without
disassembly.
9. "Serious injury" means a personal injury which results in death;
dismemberment; significant disfigurement; a compound or comminuted
fracture; or permanent loss of use of a body organ, member, function, or
system; or loss of consciousness.
10. "Injury" means any personal injury which results in medical
treatment.
11. "Safety coordinator" means a person suited by training or
experience and designated by the owner or operator of an amusement park,
fair or carnival as being in charge of the safety of all amusement
devices located at the park, fair or carnival.
12. "Viewing stand" means a bleacher, grandstand or similar structure
used at carnivals, fairs and amusement parks for public occupation,
which has a capacity of one hundred or more persons, and which is of
such nature that accidental personal injuries may be incurred in its
assembly, disassembly or use.
13. "Permanent stand" means a viewing stand that is erected to remain
a lasting part of the premises.
14. "Temporary stand" means a viewing stand that is designed to be
relocated from time to time with or without disassembly.
15. "Tent" means a tent which has a capacity of three hundred or more
persons and which is used at carnivals, fairs and amusement parks.
16. "Permanent tent" means a tent that is erected to remain a lasting
part of the premises.
17. "Temporary tent" means a tent that is regularly relocated from
time to time.
Issuance of permit. No amusement device, viewing stand or
tent may be operated in the state without a permit issued by the
commissioner except as provided in section eight hundred seventy-m of
this article. Such permits are not transferable and if any permit
holder voluntarily discontinues operation of the amusement device,
viewing stand or tent, all rights secured under the permit are
terminated.
1. Before commencement of the operation of a permanent or temporary
device, viewing stand or tent, the owner or lessee shall make written
application to the commissioner for a permit to operate, which shall be
accompanied by an annual non-refundable fee of one hundred dollars for
each amusement ride device. The permit shall be valid for a period of
one year.
2. No temporary device, viewing stand or tent shall be used at any
time or location unless prior notice of intent to use same has been
given to the commissioner. Notice of planned schedules shall (a) be in
writing, (b) identify the temporary device, viewing stand or tent, (c)
state the intended dates and locations of use, (d) be mailed to the
commissioner at least fifteen days before the first intended date of
use.
3. A permit to operate shall be issued to the owner or lessee of an
amusement device, viewing stand or tent when:
(a) written application has been made to the commissioner;
(b) the amusement device, viewing stand or tent has passed all
required inspections; and
(c) the liability insurance or bond required by section eight hundred
seventy-f of this article has been met in the amount prescribed.
4. The commissioner may revoke any permit issued pursuant to this
article if it is determined that an amusement device, viewing stand or
tent is:
(a) being used or operated without the inspections required by section
eight hundred seventy-e of this article; or
(b) being used or operated without the insurance or other security
required by section eight hundred seventy-f of this article; or
(c) being used or operated with a mechanical, structural or design
defect which presents an excessive risk of serious injury to passengers
or members of the public.
5. Any other violation of this article may result in a revocation,
provided that written notice of non-compliance is served upon the owner
specifying any violation of this article and directing the owner to
correct such violations within thirty days of receipt of such notice.
6. Nothing herein shall prevent an owner whose permit to operate an
amusement device, viewing stand or tent has been revoked pursuant to
this section from reapplying for a permit in accordance with this
article.
Inspections. Before a permit may be issued as provided in
section eight hundred seventy-d of this article, an inspection of the
amusement device, viewing stand or tent shall be made in compliance with
the procedures set by the commissioner. Such inspection shall have been
conducted within one year prior to the permit application, unless such
period shall have been extended by operation of subdivision four of this
section.
1. In the case of a permanent device, viewing stand or tent, the
amusement device, viewing stand or tent must be inspected by the
commissioner or his authorized representative, or in the city of New
York, by the building department, at the time of application for the
initial permit. In the case of an amusement device deemed by the
commissioner to normally be operated at speeds or with movements
creating severe centrifugal forces, the owner or operator making the
permit application for such device shall have available for inspection
such recommended maintenance and safety schedules or requirements as are
supplied by the manufacturer of the device. An initial operating permit
shall not be granted in the absence of these documents. Thereafter, the
amusement device, viewing stand or tent must be inspected at least
annually by a licensed architect, professional engineer, qualified
inspector of an insurance underwriter, or an inspector approved by the
commissioner as a requirement for the issuance of each subsequent
permit. Such inspection shall at minimum comply with the requirements of
the commissioner, provided that for amusement devices, at the time of
each such annual inspection, the owner or operator of such device shall
have available for inspection such recommended maintenance and safety
schedules or requirements as are supplied by the manufacturer of the
device and shall have available documentation that such maintenance and
testing as are called for by the device manufacturer have been performed
during the term covered by the previous operating permit. No subsequent
operating permit shall be granted in the absence of these documents. An
affidavit of the annual inspection shall be filed with the commissioner.
2. In the case of a temporary device, viewing stand or tent, upon
first entry into the state, the amusement device, viewing stand or tent
must be inspected by the commissioner or his authorized representative
for the permit to be issued. In the case of a temporary amusement device
deemed by the commissioner to normally operate at speeds or with
movements creating severe centrifugal forces the owner or operator
making the permit application for such device shall have available for
inspection such recommended maintenance and safety schedules or
requirements as are supplied by the manufacturer of the device. An
operating permit shall not be granted in the absence of these documents.
Thereafter, the amusement device, viewing stand or tent must be
inspected at least annually by a licensed architect, professional
engineer, qualified inspector of an insurance underwriter, or an
inspector approved by the commissioner as a requirement for the issuance
of each subsequent permit. Such inspection shall at minimum comply with
the requirements of the commissioner, provided that for amusement
devices, at the time of each such annual inspection, the owner or
operator of such device shall have available for inspection such
recommended maintenance and safety schedules or requirements as are
supplied by the manufacturer of the device and shall have available
documentation that such maintenance and testing as are called for by the
device manufacturer have been performed during the term covered by the
previous operating permit. No subsequent operating permit shall be
granted in the absence of these documents. An affidavit of the annual
inspection shall be filed with the commissioner.
2-a. Where such maintenance and safety schedules as are called for in
subdivisions one and two of this section do not exist or are not
available due to circumstances beyond the control of the owner or
operator of an amusement device, the owner or operator shall, within six
months of the discovery of the unavailability of such standards, submit
to the commissioner a proposed schedule of maintenance for that
amusement device consistent with the standards for the testing and
maintenance of such devices established in accordance with the rules and
regulations promulgated pursuant to subdivision six of this section and
shall henceforth be the schedule with which the owner or operator must
comply to qualify for annual operating permits.
2-b. None of the provisions contained in subdivision two-a of this
section shall be interpreted as to prevent the owner or operator of an
amusement device from receiving an annual permit to operate such device
during the proposed maintenance schedule submission process described in
such subdivision provided that such owner or operator meets all the
requirements for an annual operating permit as they exist prior to the
effective date of this subdivision.
2-c. The owner or operator of an amusement device shall conspicuously
post a sign containing safety guidelines to be followed by patrons while
on or in the amusement device and behavior or activities which are
prohibited as threats either to the patrons themselves, other patrons or
the general public. Such signs shall contain warnings that there are
inherent risks in the participation in or on the amusement device, since
it is recognized that participation in or on the device may be hazardous
regardless of all feasible safety measures that can be undertaken by the
device owner or operator; and that there is a duty for the patrons to
become apprised of the warnings and the risks inherent in participation
in or on the amusement device if the warnings are not obeyed. Prior to
participating in or on such amusement device, patrons shall familiarize
themselves with the posted safety warnings so that they may make an
informed decision of whether to participate in or on the device
notwithstanding the risks.
3. In the case of an amusement device, viewing stand or tent which is
substantially rebuilt or substantially modified so as to change the
structure, mechanism, or capacity of the device, viewing stand or tent,
the owner or lessee shall give written notice to the commissioner who
shall cause the device, viewing stand or tent to be inspected prior to
the time in which it is put into operation and who shall cause any
current permit to be updated so as to include any modifications made to
the device, viewing stand or tent.
4. In the event an operator is unable to secure an inspection by his
insurance carrier within one year from the date of the previous
inspection, such previous inspection shall be deemed valid for purposes
of this article for a period of thirty additional days, provided such
operator made an inspection request to his insurance carrier at least
sixty days prior to the inspection anniversary date.
5. No amusement device, viewing stand or tent which fails to pass an
inspection shall be operated for public use until it has passed a
subsequent inspection.
6. The commissioner shall, in consultation with the carnival, fair and
amusement park safety advisory board as established under section eight
hundred seventy-n of this article, as added by a chapter of the laws of
two thousand six, establish rules and regulations providing standards
for the design, manufacture, testing, inspection, quality assurance and
terminology of amusement devices. The rules and regulations established
pursuant to this subdivision shall be consistent with the national
standards for amusement devices, as established by the American Society
of Testing and Materials.
Liability insurance. Before the commissioner may issue a
permit to the owner or lessee of an amusement device, viewing stand or
tent, the owner or lessee of such device, viewing stand or tent shall
furnish the commissioner with proof that he has purchased insurance or
posted cash or other security in an amount not less than one million
dollars per occurrence or a bond in an amount not less than two million
five hundred thousand dollars in the aggregate against liability for
injury to persons arising out of the use of the amusement device,
viewing stand or tent. In the event such liability insurance is
cancelled, the insurer shall give thirty days' prior notice of such
cancellation to the commissioner.
Reports of injuries. 1. The owner or lessee of any amusement
device, viewing stand or tent which, during the course of its operation,
is involved in an accident which results in an injury shall report such
injury to the owner's or lessee's insurer.
2. The owner or lessee of any amusement device, viewing stand or tent
which, during the course of its operation, is involved in an accident
which results in a serious injury shall report such injury to the
commissioner prior to the close of business of the commissioner's next
business day.
3. When a serious injury occurs involving the operation of an
amusement device, viewing stand or tent, the owner or lessee shall
immediately shut down the device, viewing stand or tent from further
use. (a) In the case of an amusement device, the device may not resume
operation until the safety coordinator determines that the serious
injury was not caused by a mechanical or structural defect in the
amusement device; (b) In the case of a viewing stand or tent, the stand
or tent may not be occupied again until the commissioner or the safety
coordinator determines that the serious injury was not caused by a
mechanical or structural defect in the viewing stand or tent.
4. If the safety coordinator determines that a serious injury was
caused by a mechanical or structural defect, the device shall remain
shut down until such repairs are completed and the device is deemed
operational by a licensed architect, professional engineer, qualified
inspector of an insurance underwriter or an inspector approved by the
commissioner. An affidavit of such inspection and correction of defect
shall be filed with the commissioner.
Notice to owners. The commissioner shall furnish to all
owners, lessees and operators of amusement devices, viewing stands and
tents notice of all rights and obligations prescribed under this article
upon receipt of permit applications.
Additional rule making. The commissioner may make additional
rules consistent with this article guarding against personal injuries in
the assembly, disassembly and use of amusement devices, viewing stands
and tents at carnivals, fairs and amusement parks to persons employed at
or to persons attending the carnivals, fairs and amusement parks. Where
the carnivals, fairs and amusement parks are located within the city of
New York, the department of buildings of the city of New York may also
make and enforce such additional rules.
Civil penalties. 1. Any person who knowingly and willfully
operates an amusement device, viewing stand or tent without any of the
following:
(a) the permit required by section eight hundred seventy-d of this
article; or
(b) the inspections required by section eight hundred seventy-e of
this article; or
(c) the insurance or other security required by section eight hundred
seventy-f of this article shall be subject to a civil penalty of not
less than two thousand dollars, nor more than four thousand dollars, for
each day the violation continues.
2. Any person who operates an amusement device, viewing stand or tent
without any of the following:
(a) the permit required by section eight hundred seventy-d of this
article; or
(b) the inspections required by section eight hundred seventy-e of
this article; or
(c) the insurance or other security required by section eight hundred
seventy-f of this article shall be subject to a civil penalty of not
less than two thousand dollars, nor more than four thousand dollars.
3. The commissioner, in assessing penalties under subdivision one of
this section, shall give due consideration to the appropriateness of the
penalty with respect to the size of the owner's or lessee's business,
the good faith of the owner or lessee and his history of previous
violation.
4. Any operator of an amusement device who has been subject to a civil
penalty imposed pursuant to this section relating to the operation of
such amusement device on two or more occasions within any five year
period of time shall not operate the amusement device in this state, and
such device shall be taken out of service as soon as practicable. When
an amusement device is taken out of service pursuant to this
subdivision, the operator of such device shall sign an affidavit, in a
form approved by the commissioner, that the amusement device was taken
out of service and will remain out of service until such time as the
commissioner determines that the amusement device meets all safety
requirements established pursuant to this article. Any operator of an
amusement device, which is sworn to have been taken out of service, who
operates or allows to be operated such device, in violation of the
operator's affidavit, shall be subject to a fine of ten thousand
dollars.
Criminal penalties. 1. (a) Any owner or lessee of an
amusement device, viewing stand or tent who wilfully violates any
provision of this article or any rule, regulation, standard or order
promulgated pursuant to this article, and that violation causes physical
injury to any member of the public exposed to the violation, is guilty
of a class A misdemeanor and upon conviction shall be sentenced in
accordance with the provisions of the penal law.
(b) Any owner or lessee of an amusement device, viewing stand or tent
who wilfully violates any provision of this article or any rule,
regulation, standard or order promulgated pursuant to this article, and
that violation causes death or serious physical injury to any member of
the public exposed to the violation, is guilty of a class E felony and
upon conviction shall be sentenced in accordance with the provisions of
the penal law.
(c) For the purposes of this subdivision, the term "physical injury"
shall have the same meaning as that term is defined in subdivision nine
of section 10.00 of the penal law and the term "serious physical injury"
shall have the same meaning as that term is defined in subdivision ten
of section 10.00 of the penal law.
2. A person who knowingly makes any false statement, representation,
or certification in any application, record, report, plan or other
document filed or required to be maintained pursuant to this article, is
guilty of a misdemeanor and upon conviction is subject to a fine of not
more than two thousand five hundred dollars or imprisonment for not more
than six months, or both.
3. Nothing contained in this section shall be construed to limit or
preclude a prosecution under any provision of the penal law.
Local regulations. Nothing in this article shall be so
construed as to prevent municipalities from enacting regulations more
restrictive than the provisions set forth by this article.
Exceptions. (a) In the case of an amusement device, viewing
stand or tent operated in a carnival, fair or amusement park located in
a city having a population of over one million, a permit or license
issued by such city shall satisfy the requirements of section eight
hundred seventy-d of this article, provided that all the requirements
for issuance of a permit by the commissioner have been satisfied.
(b) This article shall not apply to the use of a viewing stand or tent
on any state or county fairgrounds or to the use of a viewing stand or
tent owned, leased or operated by any bona fide religious, charitable,
educational, fraternal, service, veteran or volunteer firefighter
organization; except that it shall apply to any private owner or lessee
who operates an amusement device, viewing stand or tent on a state or
county fairground, or for or on behalf of such organization.
Carnival, fair and amusement park safety advisory board. 1.
To advise the commissioner in relation to industry standards for
carnivals, fairs, amusement parks, amusement devices, tents and viewing
stands, and his or her duties and powers pursuant to this article, there
shall be established in the department an advisory board, to be known as
the "carnival, fair and amusement park safety advisory board",
consisting of eleven members to be appointed as follows: five members
shall be appointed by the governor, two members shall be appointed by
the temporary president of the senate, two members shall be appointed by
the speaker of the assembly, one member shall be appointed by the
minority leader of the senate, and one member shall be appointed by the
minority leader of the assembly. The members of such advisory board
shall each be a representative of amusement parks; operators of
temporary amusement devices; businesses engaged in the rental of
temporary amusement devices; manufacturers and suppliers of amusement
devices, tents or viewing stands; or the general public. The governor
shall appoint the chair of the board from amongst the members appointed
by him or her.
2. Each member of the advisory board shall serve a term of five years,
or until his or her successor is appointed; provided that of the members
initially appointed to the advisory board: one member appointed by the
governor and the member appointed by the minority leader of the assembly
shall serve terms of one year; one member appointed by the governor and
one member appointed by the temporary president of the senate shall
serve terms of two years; one member appointed by the governor and one
member appointed by the speaker of the assembly shall be appointed for
terms of three years; one member appointed by the governor and one
member appointed by the minority leader of the senate shall be appointed
for terms of four years; and one member appointed by the governor, one
member appointed by the temporary president of the senate and one member
appointed by the speaker of the assembly shall be appointed for terms of
five years. Any member of the board chosen to fill a vacancy occurring
otherwise than by expiration of term shall be appointed for the
unexpired term of the member who he or she is to succeed.
3. Each member of the advisory board shall serve without salary or
other compensation, but shall be allowed necessary and actual
transportation expenses incurred in the performance of his or her
duties.
4. The advisory board shall consider all matters relating to the
implementation of the provisions of this article and advise the
commissioner with respect thereto, and on its own initiative may make
recommendations to the commissioner as to any rules, regulations and
statutes necessary to assure amusement park, carnival and fair safety.
5. The commissioner shall designate an officer or employee of the
department to act as secretary to the advisory board, who shall not be a
member of such board and who shall not receive any additional
compensation therefor.
6. The advisory board may adopt by-laws to govern its own proceedings.
The secretary of the board shall keep a complete record of all
proceedings of the advisory board which shows the names of the members
present at each meeting and every matter considered by the advisory
board and the action taken thereon. Such records shall be filed in the
office of the department.
Amusement device and attraction awareness. The department
shall develop, establish and implement, in cooperation with the
carnival, fair and amusement park safety advisory board established in
section eight hundred seventy-n of this article, a program to educate
and provide awareness to the public on the risks of amusement devices
and attractions to both adults and children, and how adults can take
steps to assure their own safety and the safety of children in their
care. The program established pursuant to this section shall provide and
disseminate guidelines for safety while riding or using amusement
devices or attractions by adults, adolescents and children. Such program
shall utilize written information provided to the public and the posting
of conspicuous signs at carnivals, fairs and amusement parks, as
required by law or regulation.
ARTICLE 28 Toxic Substances
Definitions. When used in this article:
1. "Employer" means any individual, partnership, corporation or
association engaged in a business who has employees including the state
and its political subdivisions. The term "employer" does not include the
employment of domestic workers or casual laborers employed at the place
of residence of his or her employer.
2. "Toxic substance" means any substance which is listed in the latest
printed edition of the national institute for occupational safety and
health registry of toxic effects of chemical substances or has yielded
positive evidence of acute or chronic health hazards in human, animal or
other biological testing.
3. "Workplace" means any location away from the home, permanent or
temporary, where any employee performs any work-related duty in the
course of his employment.
Notice requirements. Notice to employees and their
representatives regarding toxic substances. 1. Every employer shall post
a sign in every workplace at the location or locations where notices to
employees are normally posted, to inform employees that they have a
right to information from their employer regarding the toxic substances
found in the workplace and a description of the toxic effects of these
substances and the circumstances under which these effects are produced.
2. Until such time as the commissioner in consultation with the
commissioner of health determines that there is a federal program in
effect which will guarantee substantially similar protection to
employees, each employer shall make available in writing to each
employee, and if so requested their representatives, information
relating to all toxic effects and the circumstances under which these
effects are produced from the toxic substances to which the employee may
be exposed in the course and scope of employment.
3. It shall be the responsibility of the employer to obtain
information relating to toxic substances from: the manufacturer; the New
York state department of health; the Federal Environmental Protection
Agency's Chemical Substances Information Network; and the Health Hazard
Evaluation Program of the National Institute of Occupational Safety and
Health.
4. Subject to the limitations set forth in section eight hundred
seventy-seven of this article, any manufacturer, importer, producer or
formulator of any toxic substance shipped or transported or sold for any
use within the state must provide, upon request, the following
information:
(a) the name or names of the toxic substance, including the generic or
chemical name;
(b) the trade name of the chemical and any other commonly used name;
(c) the level at which exposure to the substance is determined to be
hazardous, if known;
(d) the acute and chronic effects of exposure at hazardous levels;
(e) the symptoms of such effects;
(f) the potential for flammability, explosion and reactivity of such
substance;
(g) appropriate emergency treatment;
(h) proper conditions for safe use and exposure to such toxic
substance;
(i) procedures for cleanup of leaks and spills of such toxic
substance.
5. Whenever an employer receives new information concerning those
subjects listed in subdivision four of this section, whether from the
manufacturer, importer, producer or formulator or from state or federal
agencies, such employer must make such new information available to
employees and if so requested, their representatives upon receipt of
same.
6. Each employer shall make available to every employee the
informational leaflets that he receives about the toxic substances
information program pursuant to section forty-eight hundred four of the
public health law.
7. Upon receipt of a request for information the employer must provide
the requested information in writing within seventy-two hours, excluding
weekends and public holidays. If the information is not provided, the
employee may not be required to work with the toxic substance until the
information is made available.
8. Provision of information to an employee shall not in any way affect
the liability of an employer with regard to the health and safety of an
employee or other persons exposed to toxic substances, nor shall it
affect the employer's responsibility to take any action to prevent the
occurrence of occupational disease as required under any other provision
of law. Further, it shall not affect any other duty or responsibility of
a manufacturer, producer, or formulator to warn ultimate users of a
toxic substance pursuant to any other provisions of law.
Trade secrets. 1. When a manufacturer, producer, formulator or
employer considers the identity of or other information concerning a
toxic chemical substance to be a protectable trade secret or a
proprietary process whose disclosure would compromise his competitive
advantage and when other applicable provisions of the health law are
satisfied, he may register this information as secret with the
commissioner of health.
2. Manufacturers, producers, formulators and employers who so register
a substance, process or product with the commissioner of health must
inform in writing, employers who request information relating to such
substance, and employees and their representatives, that such substance
or process constitutes a registered trade secret or proprietary process
and that information regarding the toxic effects of such substance is
only available without identifying information and must provide such
information without identifying data.
3. No officer, employee or agent of any state or municipal department,
agency, commission or authority shall disclose to anyone in any manner
any record or portions thereof protected pursuant to this article and
which are within his custody or knowledge for so long as such record or
portions thereof shall be so exempted or until a final judicial denial
of such exemption is rendered. Any person who violates any provision of
this subdivision may be fined, suspended or removed from office or
employment in the manner provided by law.
Employee education and training. 1. Every employer shall
institute an education and training program for employees routinely
exposed to toxic substances.
2. The education and training program shall commence prior to initial
assignment and shall be repeated at least annually thereafter.
Additional instruction must be provided whenever the potential for
exposure to toxic substances is altered.
3. The education and training program shall include, but may not be
limited to, the following:
(a) the location of toxic substances to which the employee may be
exposed;
(b) the properties of toxic substances to which employees may be
exposed;
(c) the name or names of the toxic substance, including the generic or
chemical name;
(d) the trade name of the chemical and any other commonly used name;
(e) the acute and chronic effects of exposure at hazardous levels;
(f) the symptoms of effects of exposure at hazardous levels;
(g) the potential for flammability, explosion and reactivity of such
substance;
(h) appropriate emergency treatment;
(i) proper conditions for safe use and exposure to such toxic
substance;
(j) procedures for cleanup of leaks and spills of such toxic
substance.
Records. Employers shall keep a record of the name, address and
social security number of every employee who handles or uses a substance
or substances included in section nineteen hundred ten of the federal
occupational safety and health regulations, subparagraph z and which
such substance or substances was or were handled or used by which
employee. Such record shall be made available to each affected employee,
former employee, designated physician or representative and the
commissioner of health, upon request, for examination and copying. Such
record shall be kept for forty years. Such records shall be sent to the
department of health if the employer's establishment ceases to operate
within the state of New York.
Powers of the industrial commissioner. The industrial
commissioner may promulgate such regulations as he shall consider
necessary and proper to effectuate the purposes and provisions of this
article.
ARTICLE 29 Training and Education Program On Occupational Safety and Health
Legislative findings and intent. The workers of New York state,
both public and private, pursuant to state and federal laws, have the
right to a safe and healthy workplace, including, pursuant to the
provisions of article twenty-eight of this chapter, the right to
training and education about the toxic substances in their workplace.
It is the public policy of this state to promote safe and healthy
conditions in the workplace. Further, it is the public policy of this
state to encourage voluntary compliance with safety and health
regulations and the prevention of illness and injury through training
and education programs.
Therefore, it is the intent of this legislature to achieve the full
benefits of such preventive measures by creating a training and
educational program on occupational safety and health, which will
operate through a program of grants to employers (public or private),
labor organizations or their federations, trade associations, nonprofit
organizations and educational institutions, for conducting training,
education, and other proven preventive programs. Furthermore, it is the
legislature's intention to foster voluntary preventive activities on the
part of employers and employees by the utilization of the training and
education program on occupational safety and health.
Definitions. As used in this article:
1. "Board" shall mean the New York state occupational safety and
health hazard abatement board created pursuant to the provisions of
section twenty-seven-a of this chapter.
2. The term "program" shall mean the training and education program on
occupational safety and health created pursuant to the provisions of
section eight hundred eighty-six of this article.
3. The term "fund" shall mean the training and education program on
occupational safety and health fund created pursuant to the provisons of
section ninety-seven-c of the state finance law.
Training and education program on occupational safety and
health. 1. There is hereby created a training and education program on
occupational safety and health.
2. The board shall, pursuant to the provisions of subdivision fourteen
of section twenty-seven-a of this chapter, provide grants to employers
(public or private), labor organizations or their federations, trade
associations, nonprofit organizations and educational institutions to
provide occupational safety and health education and training services
to employees and employers at locations throughout the state, including
education services as required under article twenty-eight of this
chapter, training and education for employees concerning the prevention
of occupational diseases and injuries, and any other services deemed
effective to promote the prevention of accidents and illness.
3. Apportionment of funds. (a) The department shall retain no more
than ten percent of the appropriated funds for the administration of
this program.
(b) Any funds reappropriated for the purposes provided in this article
which the commissioner determines to be unencumbered as of July first of
the year in which said grants lapse, shall, by January first of the next
succeeding year, be awarded to grantees in the same manner as all other
funds appropriated for this purpose in the same manner as other grants
under subdivision two of this section.
Occupational safety and health inspection account.
Notwithstanding any other law, rule or regulation to the contrary,
expenditures by the department made pursuant to appropriations from the
miscellaneous special revenue fund, occupational safety and health
inspection account shall be deemed an assessable expense of the workers'
compensation board within the meaning of section one hundred fifty-one
of the workers' compensation law.
ARTICLE 30 Asbestos or Products Containing Asbestos; Licensing
Legislative findings and declaration. The legislature hereby
finds and declares that exposure to asbestos fibers, a known
carcinogenic agent, creates a serious risk to the public health and
safety. The legislature also finds that the public is more frequently
exposed to these risks as a result of an increasing number of
rehabilitation and reconstruction projects on buildings containing
asbestos or asbestos materials.
The legislature finds that the risks associated with asbestos are
exacerbated by the improper and uninformed manner in which some
contractors and their employees handle asbestos. Improper design,
implementation or inspection of asbestos projects creates unnecessary
health and safety hazards which are detrimental to the state's interest,
and that of its citizens.
The legislature, therefore, finds and declares it to be its purpose
and policy to reduce asbestos related hazards by encouraging proper
training of persons employed to design, implement or inspect asbestos
projects and those who supervise or employ them, by requiring the
licensing of contractors and the certification of individuals involved
in asbestos projects pursuant to regulations promulgated by the
commissioner, prior to the removal, enclosure, encapsulation or
disturbance of friable asbestos or any handling of asbestos material
which may result in the release of asbestos fiber and by conferring upon
the commissioner the authority to inspect ongoing asbestos projects and
promulgate and enforce safety and health standards regulating the
conduct of those projects through injunctions, and the imposition of
civil and criminal penalties.
Definitions. As used in this article, the following terms have
the meanings indicated:
1. "Approved asbestos safety program" means a program approved by the
commissioner of health providing training in the handling and use of
asbestos and asbestos material, education concerning safety and health
risks inherent in such handling and use and training in techniques for
minimizing exposure of the public to asbestos fibers.
2. "Asbestos" means any naturally occurring hydrated mineral silicate
separable into commercially usable fibers, including chrysotile
(serpentine), amosite (cummingtonite-grunerite), crocidolite
(riebeckite), tremolite, anthrophyllite and actinolite.
3. "Asbestos contract" means an oral or written agreement contained in
one or more documents for the performance of work on an asbestos project
and includes all labor, goods and services.
4. "Asbestos handling certificate" means a certificate issued by the
commissioner pursuant to the provisions of this article to a person who
has satisfactorily completed an approved asbestos safety program.
5. "Asbestos handling license" means a license issued by the
commissioner pursuant to the provisions of this article to an asbestos
contractor engaged in an asbestos project.
6. "Asbestos material" means any material containing more than one
percent by weight of asbestos.
7. "Asbestos project" means work undertaken which involves the
removal, encapsulation, enclosure, repair or disturbance of friable or
non-friable asbestos, or any handling of asbestos material that may
result in the release of asbestos fiber except for work in an
owner-occupied single family dwelling performed by the owner of such
dwelling and, for the purpose of compliance with regulations promulgated
pursuant to subdivision one of section nine hundred six of this article,
except for in-plant operations as defined in subdivision thirteen of
this section. Where all asbestos work on a project is subcontracted to
an asbestos contractor with an asbestos handling license, only that part
of the work involving asbestos shall be deemed to be an asbestos
project.
8. "Commissioner" means the commissioner of labor.
9. "Asbestos contractor" means the state, any political subdivision of
the state, a public authority or any other governmental agency or
instrumentality thereof, self-employed person, company, unincorporated
association, firm, partnership or corporation, limited liability
corporation or professional limited liability corporation and any owner
or operator thereof, which engages in any portion of an asbestos project
or employs persons engaged in an asbestos project.
10. "Department" means the department of labor.
11. "Entity" means a partnership, association, joint venture, company,
sole proprietorship, corporation, limited liability corporation,
professional limited liability corporation or any other form of doing
business.
12. "Friable" means any material that when dry, can be crumbled,
pulverized, crushed or reduced to powder by hand pressure or is capable
of being released into the air by hand pressure.
13. "In-plant operations" means work within the premises of an
employer other than the state, any political subdivision of the state, a
public authority or other governmental agency or instrumentality
thereof, in an area to which persons other than employees of that
employer directly involved in the work will not have access during the
course of the work and which is performed in a manner consistent with
federal regulations promulgated under the federal occupational safety
and health act pursuant to chapter 15 of title twenty-nine of the United
States code, and is performed in a manner which will not expose the
public or employees of that employer not directly involved with the
asbestos project to asbestos fibers in excess of background levels or
..01 fibers per cubic centimeter, provided that the work involves the
encapsulation, enclosure, removal, repair, disturbance or handling of
(a) less than one hundred sixty square feet or two hundred sixty linear
feet of asbestos or asbestos material and is performed by employees of
such employer or (b) any quantity of non-friable organically bound
asbestos material.
14. "Non-friable organically bound (NOB) asbestos material" means a
wide range of non-friable asbestos materials embedded in
flexible-to-rigid asphalt or vinyl matrices, including but not limited
to, flooring materials, adhesives, mastics, asphalt shingles, roofing
materials and caulks.
15. "Parent company" means an entity that directly, or indirectly
through one or more intermediaries, controls the asbestos contractor.
16. "Person" means any natural person.
17. "Subsidiary" means an entity that is controlled directly, or
indirectly through one or more intermediaries, by an asbestos contractor
or by the asbestos contractor's parent company.
18. "Substantially owned-affiliated entity" means, in relation to any
asbestos contractor, any (a) parent company of the asbestos contractor,
(b) subsidiary of the asbestos contractor, (c) successor of the asbestos
contractor, (d) entity in which the parent company of the asbestos
contractor owns more than fifty percent of the voting stock, (e) entity
in which one or more of the top five shareholders of the asbestos
contractor individually or collectively also owns a controlling share of
the voting stock, or (f) entity which exhibits any other indicia of
control over the asbestos contractor or over which the asbestos
contractor exhibits control, regardless of whether the controlling party
or parties have any identifiable or documented ownership interest. Such
indicia shall include, but not be limited to, 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.
19. "Successor" means an entity engaged in work substantially similar
to that of the predecessor, where there is substantial continuity of
operation with that of the predecessor.
Licensing and certification requirements. 1. It shall be
unlawful for any contractor to engage in an asbestos project unless such
contractor has a valid asbestos handling license issued by the
commissioner. Such license will not be issued without evidence of
successful completion by the contractor, or a supervisor designated to
act as the contractor's agent, of an approved asbestos safety program
which is, at the least, equivalent to the U.S. Environmental Protection
Agency Model Accreditation Plan (40 CFR Part 763) and the submission of
any additional information which the commissioner may require.
2. A copy of a valid asbestos handling license or other proof of the
issuance of a valid asbestos handling license granted to the contractor
who will be undertaking the asbestos project must be submitted by the
bidder in a form acceptable to the commissioner prior to the award of
any public works contract all or part of which involves an asbestos
project.
3. A copy of a valid asbestos handling license must be conspicuously
displayed at the work site on an asbestos project.
4. It shall be unlawful for any contractor to engage in or to permit a
person employed by the contractor, including but not limited to
handlers, project designers, inspectors and management planners, to
engage in work on an asbestos project or to supervise persons engaging
in work on an asbestos project unless each such person and supervisor
has a valid asbestos handling certificate. Such certificate will not be
issued without evidence of successful completion by each such person of
an approved asbestos safety program and the submission of any additional
information which the commissioner may require.
5. Any person employed on an asbestos project or the supervisor of any
person engaged in work on an asbestos project or any other person who is
otherwise required by law or regulation to obtain an asbestos handler's
certificate shall have in his or her possession at all times during the
work on the project a copy of the asbestos handling certificate issued
to the person by the commissioner.
License and certification procedure. 1. All applications for
asbestos handling licenses or certificates shall be submitted in writing
on forms furnished by the commissioner and shall contain such
information which the commissioner may require. An application for an
asbestos handling license shall contain a statement by the asbestos
contractor or its duly authorized representative, which shall be
subscribed by the asbestos contractor or its duly authorized
representative and affirmed as true under penalties of perjury, that all
persons employed by the asbestos contractor on any asbestos project
whose duties involve the removal, encapsulation, enclosure, repair or
disturbance of asbestos, or any handling of asbestos material that may
result in the release of asbestos fiber or the supervision thereof,
shall have valid asbestos handling certificates and that the asbestos
contractor will abide by all the rules and regulations promulgated
pursuant to this article. The commissioner shall have the authority to
deny the issuance or renewal of a license or certificate for good cause
shown, including the serious violation of state, federal or local laws
by the applicant or by any substantially owned-affiliated entity of the
applicant with regard to the conduct of any job involving asbestos or
asbestos material, or for any serious violation or violations that
resulted in a suspended or revoked license or certificate during the
previous five years.
2. The fee for an asbestos handling license shall be five hundred
dollars, which shall accompany each license application.
3. The renewal fee for an asbestos handling license shall be three
hundred dollars, which shall accompany each license renewal application.
4. An asbestos handling license shall be valid for a period of one
year from the date of issuance and may be renewed on conditions set by
the commissioner related to additional training.
5. The fee for an asbestos handling certificate shall be assessed in
accordance with the following and shall accompany each certificate
application.
Application
Schedule: Asbestos Handling Certificate Category Fee
Management Planner $150
Project Designer 150
Inspector 100
Air Monitor 75
Supervisor 75
Asbestos Handler 50
Operation and Maintenance 50
Restricted Handler 50
6. The renewal fee for any annual asbestos handling certificate shall
be equal to the application fee set forth herein, and shall accompany
each certificate renewal application.
7. An asbestos handling certificate shall be valid for a period of one
year from date of issuance and may be renewed on conditions set by the
commissioner related to additional training.
8. Within thirty days of the receipt of the application and fee for
any license or certificate issued under this section, the commissioner
shall either issue the license or certificate or deny the license or
certificate setting forth the reason for such denial in writing.
Notice and recordkeeping requirements. 1. Each contractor shall
keep and maintain for at least thirty years a record of each asbestos
project in which it engages, which record shall include the following
information: the name, address and social security number of the person
who supervised the asbestos project; the location and description of the
asbestos project; the amount of asbestos or asbestos material that was
removed, enclosed, encapsulated, or disturbed; the starting and
completion date of the asbestos project; the name and address of the
deposit or waste disposal site or sites where the asbestos material was
deposited or disposed of; the name and address of any interim storage
sites used for the asbestos or asbestos materials prior to deposit or
disposal; the name and address of any transporters used to move asbestos
or asbestos material; the name, address and social security number of
all persons who worked on the asbestos project; and any other
information which the commissioner may require.
2. Any contractor engaged in an asbestos project involving more than
two hundred sixty linear feet or more than one hundred sixty square feet
of asbestos or asbestos materials shall notify both the United States
Environmental Protection Agency, Region II, Air and Hazardous Material
Division and the commissioner in writing ten days prior to the
commencement of work on the project or, if emergency conditions make it
impossible to provide ten days prior notice, as soon as practicable
after identification of the project. The notice to the commissioner
shall include the following information: the name, address and asbestos
handling license number of the contractor working on the project; the
address and description of the building or area, including size, age and
prior use of the building or area; the amount of friable asbestos
material present in square feet and/or linear feet, if applicable; room
designation numbers or other local information where such asbestos
material is found unless such material is found throughout the entire
structure; the scheduled starting and completion dates for removal; the
procedures and equipment, including ventilating systems that will be
employed; any additional information which the commissioner may require;
and shall be accompanied by a project notification fee as follows:
Project Size/Linear Feet Fee
260-429 $200
430-824 400
825-1649 1,000
1650 or more 2,000
Project Size/Square Feet Fee
160-259 $200
260-499 400
500-999 1,000
1000 or more 2,000
2-a. The project notification fee imposed by subdivision two of this
section shall be waived if the project is being undertaken by or on
behalf of a city, town, village, or county that is abating or
demolishing a building that is a public nuisance or unsafe. Such waiver
shall apply only if the city, town, village or county certifies in
writing that the project cost will exceed the resulting value of the
property.
2-b. The project notification fee imposed by subdivision two of this
section shall be waived if the project is being undertaken: (a) pursuant
to a plan adopted pursuant to article fifteen of the general municipal
law; (b) pursuant to a plan adopted pursuant to article eighteen-C of
the general municipal law; or (c) by or on behalf of a land bank
operating pursuant to article sixteen of the not-for-profit corporation
law.
3. Upon the expiration, revocation or non-renewal of an asbestos
handling license, or at any other time at the request of the
commissioner, any records required to be kept pursuant to this section
shall be given to the commissioner.
4. A contractor shall post or otherwise provide for written
notification to residential and business occupants of a building ten
days prior to the commencement of work on any asbestos project in the
building or, if the work is scheduled to begin less than ten days after
the execution of the contract, at least three days prior to the
commencement of work, or if emergency conditions make it impossible to
provide ten days notice or three days notice as applicable, as soon as
practicable after identification of the project. The notification shall
be made in such a manner and shall contain such information as is
reasonably necessary to advise such occupants of any asbestos project in
the building, according to regulations promulgated by the commissioner.
If posted, such notice shall remain in place until completion of the
project. It shall be a violation of this chapter for any person to
interfere with the obligations of a contractor under this subdivision.
Training and education. 1. The commissioner of health shall
have authority to approve asbestos safety programs and shall maintain a
list of approved programs which shall be made available to license
applicants, certificate applicants and other interested parties upon
request. The commissioner of health shall promulgate rules and
regulations setting forth the criteria for approval of such programs,
the procedures to be followed in applying for such approval and any
other rules or regulations as shall be necessary and proper to
effectuate the purposes of this section and to comply with the
requirements of the Federal Asbestos Hazard Emergency Response Act and
any other applicable federal standards.
2. (a) The commissioner of health shall assess a fee of no more than
fifty dollars for each asbestos safety program completion certificate
requested by the training sponsor for each full asbestos safety program
and a fee of no more than thirty dollars for each asbestos safety
program completion certificate requested by the training sponsor for
each refresher training asbestos safety program, provided, however, that
in no event shall the cost of such certificates be assessed by the
sponsor against the participants.
(b) There shall be established within the special revenue fund-other
an asbestos safety program account. All fees assessed and collected
pursuant to the provisions of this subdivision shall be paid and
deposited into the asbestos safety program account established by this
paragraph for the purposes of offsetting the costs incurred by the
commissioner of health for the administration of asbestos safety
programs.
Regulations. The commissioner shall promulgate such rules and
regulations as shall be necessary and proper to effectuate the purposes
and provisions of this article and to comply with the requirements of
the Federal Asbestos Hazard Emergency Response Act and any other
applicable federal standards. Such regulations shall include but not be
limited to (1) standards for asbestos projects including methods of
removing, encapsulating, enclosing or disturbing friable asbestos and
standards for any handling of asbestos material which may result in the
creation of friable asbestos or any handling of asbestos material that
may result in the release of asbestos fibers, as shall be necessary to
protect the public health and safety and shall include regulations which
will permit such disturbance that results from actions that are
necessary to abate an emergency which poses an immediate threat to
safety or the public health; (2) standards for asbestos projects and
in-plant operations setting licensing and certification requirements;
and (3) standards for asbestos projects and in-plant operations setting
goal air monitoring and clearance requirements, including those
necessary to insure that asbestos work is properly designated as an
in-plant operation as defined in subdivision twelve of section nine
hundred one of this chapter.
Investigations and complaints. The commissioner shall have the
authority to inspect ongoing or completed asbestos projects and to
conduct an investigation upon his or her own initiation or upon receipt
of a complaint by any person or entity.
Injunction. If the commissioner finds that any asbestos project
is not being performed in accordance with this article or the rules and
regulations promulgated hereunder, the commissioner may, by delivery of
notice to the contractor engaged in the asbestos project or its agent or
representative, enjoin any further work on such asbestos project. Such
notice shall specifically enumerate the violations of law or regulation
which are occurring on the asbestos project and shall prohibit any
further work on the asbestos project until the violations complained of
cease and the notice is rescinded by the commissioner. Upon receipt of a
written notification from the contractor that the violations have been
corrected, the commissioner shall, within ten days, issue a
determination as to whether the notice shall be rescinded. Any person or
contractor who may be adversely affected by a notice or determination
issued under this section may challenge the validity or applicability of
such notice or determination by commencing a proceeding pursuant to
article seventy-eight of the civil practice law and rules.
Civil penalties and revocation. 1. a. The commissioner may
impose a civil penalty upon an asbestos contractor of up to two thousand
five hundred dollars for the initial violation of section nine hundred
two of this article and up to four thousand dollars for the second or
subsequent violation of such section. Any substantially owned-affiliated
entity of such asbestos contractor shall be held jointly and severally
liable for the payment of such civil penalty. The commissioner may issue
an order directing payment of such civil penalty by the asbestos
contractor and substantially owned-affiliated entity.
b. If, after an investigation and a formal hearing, the commissioner
finds that an asbestos contractor has violated any provision of this
article, other than section nine hundred two or any rule or regulation
promulgated hereunder, the commissioner shall, by an order which shall
describe in detail the nature of the violation or violations, assess the
asbestos contractor a civil penalty of not more than the greater of
twenty-five percent of the monetary value of the contract upon which the
violation was found to have occurred or five thousand dollars per
violation. Any asbestos contractor who, having previously been assessed
a civil penalty under this section, or whose substantially
owned-affiliated entity having previously been assessed a civil penalty
under this section, violates any provision of this article or any rule
or regulation promulgated hereunder, shall be subject to a civil penalty
of not more than the greater of fifty percent of the monetary value of
the contract upon which the violation was found to have occurred or
twenty-five thousand dollars per violation. Each day a violation
continues may be considered a separate violation under this section. In
assessing the amount of penalty, the commissioner shall give due
consideration to the size of the asbestos contractor's business, the
good faith of the contractor, the gravity of the violation and the
history of previous violations by the asbestos contractor and/or any
substantially owned-affiliated entity of such asbestos contractor. Any
substantially owned-affiliated entity of such asbestos contractor shall
be held jointly and severally liable for the payment of such civil
penalty. The commissioner may issue an order directing payment of such
civil penalty by the asbestos contractor and any substantially
owned-affiliated entity.
2. If, after an investigation and a formal hearing, the commissioner
finds that an asbestos contractor has violated any provision of this
article or any rule or regulation promulgated hereunder within three
years of the last assessment of a civil penalty against the asbestos
contractor or any substantially owned-affiliated entity of the asbestos
contractor under this article, or has been found to have committed
serious violations of other state, federal or local laws with regard to
the conduct of the asbestos contractor or any substantially
owned-affiliated entity of such asbestos contractor at or on any
asbestos project or that such asbestos contractor or any substantially
owned-affiliated entity of such asbestos contractor has otherwise
demonstrated a lack of responsibility in the conduct of any job
involving asbestos or asbestos material of such seriousness as to
warrant the revocation of the asbestos contractor's license, or the
license of any substantially owned-affiliated entity of such asbestos
contractor, the commissioner may, by an order which describes in detail
the nature of the violation or violations, revoke the asbestos
contractor's asbestos handling license or the asbestos handling license
of any substantially owned-affiliated entity of such asbestos contractor
and neither such asbestos contractor nor any substantially
owned-affiliated entity of such asbestos contractor shall be eligible to
apply for a new asbestos handling license for a period of up to two
years.
3. If, after an investigation and a formal hearing, the commissioner
finds that a person who has been issued an asbestos handling certificate
has willfully violated any provision of this article, or any rule or
regulation promulgated hereunder, the commissioner may, by order which
describes in detail the nature of the violation or violations, suspend
or revoke the asbestos handling certificate of such person.
4. Any person or asbestos contractor who may be adversely affected by
an order issued under this section may challenge the validity or
applicability of such order by commencing a proceeding pursuant to
article seventy-eight of the civil practice law and rules. The
commissioner may file with the county clerk of the county where the
person, asbestos contractor, or substantially owned-affiliated entity of
such person or contractor resides or has a place of business, the order
containing the amount of civil penalty, unless a proceeding for judicial
review as provided in this article shall then be pending or the time for
initiation of such proceeding has not expired. The filing of such order
or decision shall have the full force and effect of a judgment duly
docketed in the office of such clerk. The order or decision may be
enforced by and in the name of the commissioner 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.
5. When any person or corporation, or any officer or shareholder who
owns or controls at least ten per centum of the outstanding stock of
such corporation, has been convicted of a felony offense for conduct
directly relating to obtaining or attempting to obtain, an asbestos
handling certificate or asbestos handling license or performing or
attempting to perform an asbestos contract such person or corporation
shall be ineligible to be issued an asbestos handling certificate or
asbestos handling license for a period of five years from the date of
conviction.
6. Nothing in this section shall be construed as affecting any
provision of any other law or regulation relating to the issuance of
asbestos handling certificates or asbestos handling licenses.
Enforcement. 1. Nothing in this article shall be construed to
prevent municipalities from enacting local laws or ordinances which
impose standards or requirements relating to the handling of asbestos or
asbestos material more effective than those set forth in this article or
in any rule or regulation promulgated hereunder.
2. The commissioner shall enforce the provisions of this article and
rules and regulations adopted hereunder; provided, however, that the
provisions of this section and sections nine hundred seven, nine hundred
eight and nine hundred nine of this article shall not be enforced in
reference to persons or contractors performing work in a city or
municipality which files with the commissioner a duly certified copy of
a local law or ordinance assuming full responsibility for enforcing the
provisions of this article and the rules and regulations adopted
hereunder. Such city or municipality shall have all the powers of the
commissioner in enforcing the provisions of this article and the rules
and regulations adopted hereunder, including but not limited to the
collection and retention of monetary penalties.
3. Each city or municipality which elects such local enforcement
option shall submit a report to the commissioner annually on or before
the first day of June of the manner in which this article and the rules
and regulations promulgated thereunder have been and are administered,
and the results of such administration under the jurisdiction of such
city or municipality and shall from time to time submit to the
commissioner such other reports as to such other matters as the
commissioner may require.
4. A city or municipality may file with the commissioner a duly
certified copy of a local law or ordinance terminating its enforcement
responsibilities which shall be effective thirty days from the filing
thereof.
ARTICLE 31 New York Professional Employer Act
Short title. This article shall be known and may be cited as
the "New York professional employer act".
Definitions. As used in this article:
1. "Client" means a person who enters into a professional employer
agreement with a professional employer organization.
2. "Person" means an individual, an association, a company, a firm, a
partnership, a corporation, or any other form of legally recognized
entity.
3. "Professional employer agreement" means a written contract whereby:
(a) A professional employer organization expressly agrees to co-employ
all or a majority of the employees providing services for the client;
(b) The contract is intended to be on-going rather than temporary in
nature;
(c) Employer responsibilities for worksite employees, including those
of hiring, firing and disciplining, are expressly allocated by and
between the professional employer organization and the client in the
agreement; and
(d) The professional employer organization expressly assumes the
rights and responsibilities as required in section nine hundred
twenty-two of this article.
4. "Professional employer organization" means any person whose
business is entering into professional employer agreements with clients.
In determining whether the professional employer organization employs
all or a majority of the employees of a client, any person employed
pursuant to the terms of the professional employer agreement after the
initial placement of client employees on the payroll of the professional
employer organization shall be included. Temporary help firms and
employment agencies, as defined in article eleven of the general
business law, shall not be deemed to be professional employer
organizations for purposes of this article.
5. "Temporary help firm" means a business which recruits and hires its
own employees, and assigns those employees to perform work at or
services for other organizations, to support or supplement the other
organization's workforce, or to provide assistance in special work
situations such as, but not limited to, employee absences, skill
shortages, seasonal workloads, or to perform special assignments or
projects. A temporary help firm shall not be deemed to be a professional
employer organization for the purposes of this article.
6. "Worksite employee" means a person having an employment
relationship with both the professional employer organization and the
client. Such term may also include the client's officers, directors,
shareholders or partners to the extent such persons act as operational
managers or perform services for the client.
Continuing obligations. 1. Collective bargaining agreements
exempted. A professional employer agreement shall have no effect on
existing collective bargaining agreements. Notwithstanding any
statements to the contrary, nothing in this article shall alter the
rights or obligations of any client, professional employer organization
or worksite employee under the national labor relations act or any
applicable state law.
2. State licensing provisions not exempted. This article shall not
exempt a client or a worksite employee from any state, local or federal
licensing, registration or certification requirement.
(a) Every individual who is required to be licensed, registered or
certified according to law and who is a worksite employee shall be
deemed an employee of the client for purposes of any license,
registration or certification requirement.
(b) A professional employer organization shall not be deemed to be
engaged in an occupation, trade or profession that is subject to
licensing, registration or certification requirements, or is otherwise
regulated by a governmental entity solely by entering into a
professional employer agreement with a client or an employment
relationship with worksite employees.
Registration required. A professional employer organization
shall not engage in business from offices in this state or enter into
any arrangement with a person for the purpose of providing professional
employer services as described in section nine hundred twenty-two of
this article to persons in this state unless the professional employer
organization is registered under this article. No professional employer
organization or person shall use the name or title "professional
employer organization", "PEO", "staff leasing company", "employee
leasing company", "registered staff leasing company" or "staff leasing
services company", or otherwise represent that it is registered under
this article unless the entity or person is registered under this
article. A professional employer organization that does not comply with
the provisions of this article shall not be a registered professional
employer organization in this state.
Registration process. 1. Except as otherwise provided in this
section, each professional employer organization required to be
registered under this article shall provide the department with
information required by the department on forms that the department
specifies. At a minimum, professional employer organizations shall
provide the following information:
(a) The name or names under which it conducts business;
(b) The address of the principal place of business of the professional
employer organization and the address of each office it maintains in
this state;
(c) The professional employer organization's taxpayer or employer
identification number;
(d) A list by jurisdiction of each name under which the professional
employer organization has operated in the preceding five years,
including any alternative names, names of predecessors and, if known,
successor business entities; and
(e) In the event the professional employer organization or the
ultimate parent of a professional employer organization group is a
privately or closely held company, the professional employer
organization or professional employer organization group shall file a
list of all persons or entities that own a five percent or greater
interest in the professional employer organization at the time of
application and a list of persons who formerly owned a five percent or
greater interest in the professional employer organization or its
predecessors in the preceding five years. In the event the professional
employer organization or the ultimate parent of a professional employer
organization group is a publicly traded company, the professional
employer organization or professional employer organization group shall
file a list of all persons or entities that own a fifty percent or
greater interest in the professional employer organization or the
ultimate parent of the professional employer organization group at the
time of application.
2. Each professional employer organization operating within this state
shall complete its initial registration within one hundred eighty days
after the end of the professional employer organization's fiscal year
ending after the effective date of this article.
3. Within one hundred eighty days after the end of the professional
employer organization's fiscal year, each registrant shall renew its
registration by notifying the department of any changes in the
information previously provided pursuant to this section.
4. Two or more professional employer organizations that are majority
owned by the same ultimate parent, entity or persons may be registered
as a professional employer organization group. A professional employer
organization group may satisfy any reporting and financial requirements
of this article on a consolidated basis. As a condition of registration
as a professional employer organization group, each company that is a
member of the group shall guarantee payment of all financial obligations
of each other member.
5. A professional employer organization shall be exempt from the
registration requirements specified in this section if such professional
employer organization:
(a) submits a properly executed request for registration and exemption
on a form provided by the department;
(b) is domiciled outside this state and is licensed or registered as a
professional employer organization in another state that has the same or
greater requirements as this article;
(c) does not maintain an office in this state or solicit in any manner
clients located or domiciled within this state; and
(d) does not have more than twenty-five worksite employees in this
state.
6. The registration and exemption of a professional employer
organization under subdivision five of this section shall be valid for
one year.
7. The department shall maintain a list of professional employer
organizations registered under this article.
8. The department may prescribe forms necessary to promote the
efficient administration of this section.
Minimum net worth, bonding and reporting. 1. Every initial
registration and subsequent annual reporting shall be accompanied by a
reviewed or an audited financial statement of the professional employer
organization's most recent fiscal year end and prepared within one
hundred eighty days prior to the date of application or renewal by an
independent certified public accountant in accordance with generally
accepted accounting principles, which statement shall show a minimum net
worth of seventy-five thousand dollars, and shall be accompanied by a
cover letter from the independent certified public accountant that the
professional employer organization has satisfied the requirements of
this section. A professional employer organization group may submit
combined or consolidated audited or reviewed financial statements to
meet the requirements of this section. Where the group or the group's
parent submits a combined or consolidated statement, the statement shall
include supplemental consolidating or combining schedules covering each
professional employer organization registered under the group.
2. As a substitute for the requirement set forth in subdivision one of
this section, the department may require that the professional employer
organization deposit in a depository designated by the department a bond
or securities with a minimum market value of seventy-five thousand
dollars. The securities so deposited shall include authorizations to the
department to sell those securities in an amount sufficient to pay any
taxes, wages, benefits or other entitlement due a worksite employee, if
the professional employer organization does not make those payments when
due. Any bond or securities deposited under this subdivision shall not
be included for the purpose of calculation of net worth required by
subdivision one of this section.
3. Every professional employer organization shall submit to the
department, within sixty days after the end of each calendar quarter, a
statement by an independent certified public accountant that all
applicable federal and state payroll taxes have been paid on a timely
basis for that quarter.
4. All records, reports and other information obtained from a
professional employer organization under this article, except to the
extent necessary for the proper administration by the department of this
article and all applicable labor laws, shall be confidential and shall
not be published or open to public inspection other than to public
employees in the performance of their public duties.
5. The department may rescind, suspend or revoke a registration for
failure to comply with this article. Should a registrant wish to contest
an action of the department, the department may require such additional
financial assurances or bond required to protect the interests of the
state and its citizens during the course of the appeal. Two or more
violations by a professional employer organization, of any kind, of this
article within any five year period shall be grounds for revocation of a
registration and no new registration shall be granted for a period of
two years to such professional employer organization or to any person
who was or should have been listed by such professional employer
organization at the time of registration in compliance with paragraph
(e) of subdivision one of section nine hundred nineteen of this article.
General requirements and provisions. 1. A professional employer
organization shall meet the following standards:
(a) Have a written professional employer agreement between the client
and the professional employer organization setting forth the
responsibilities and duties of each party. The professional employer
agreement shall contain a description of the type of services to be
rendered by the professional employer organization and the respective
rights and obligations of the parties and the professional employer
agreement shall also provide that the professional employer
organization:
(i) reserves a right of direction and control over the worksite
employees. However, the client shall maintain such direction and control
over the worksite employees as is necessary to conduct the client's
business and without which the client would be unable to conduct its
business, discharge any fiduciary responsibility which it may have, or
comply with any applicable licensure;
(ii) assumes responsibility for the withholding and remittance of
payroll-related taxes and employee benefits for worksite employees and
for which the professional employer organization has contractually
assumed responsibility from its own accounts, as long as the
professional employer agreement between the client and professional
employer organization remains in force; and
(iii) retains authority to hire, terminate and discipline the worksite
employees.
(b) Provide written notice of the general nature of the relationship
between the professional employer organization and the client to the
worksite employees located at the client worksite.
2. A professional employer organization shall be considered an
employer for the purposes of withholding state income tax of the
worksite employees pursuant to section six hundred seventy-one of the
tax law.
3. As long as the professional employer organization's professional
employer agreement with a client remains in force, the professional
employer organization shall have a right to and shall assume the
following responsibilities:
(a) pay wages and collect, report and remit employment taxes of its
worksite employees from its own accounts;
(b) pay unemployment insurance as required by the unemployment
insurance law;
(c) secure and provide required workers' compensation coverage for its
worksite employees either in its own name or in its client's name.
4. Both the client and the professional employer organization shall be
considered the employer for the purpose of coverage under the workers'
compensation law and both the professional employer organization and its
client shall be entitled to protection of the exclusive remedy provision
of the workers' compensation law irrespective of which entity secures
and provides such workers' compensation coverage.
5. A registered professional employer organization shall be deemed for
purposes of state law an employer for purposes of sponsoring welfare
benefit plans for its worksite employees. Worksite employees
participating in that professional employer organization's fully insured
welfare benefit plan or plans shall be considered employees
participating in a single employer welfare benefit plan or plans. A
fully insured welfare benefit plan or plans offered by a registered
professional employer organization to its employees and/or worksite
employees shall not be considered for purposes of state law a multiple
employer welfare arrangement.
6. Subject to any contrary provisions contained in the written
professional employer agreement between the client and the professional
employer organization, the professional employer arrangement that exists
between a professional employer organization and its client or clients
shall be interpreted for the purposes of insurance and bonding as
follows:
(a) Nothing in this section shall serve to limit any contractual
liability, as may be expressly agreed upon, between the professional
employer organization and the client, nor shall this section in any way
limit the liabilities of any professional employer organization or
client as defined elsewhere in this article; and
(b) Worksite employees are not automatically deemed pursuant to this
section to be employees of the professional employer organization for
purposes of general liability, insurance, automobile insurance, fidelity
bonds, surety bonds, employer's liability which is not covered by
workers' compensation, or liquor liability insurance carried by the
professional employer organization unless the worksite employees are
included by specific reference in the professional employer agreement
and applicable prearranged employment contract, insurance contract or
bond.
7. The sale of professional employer services in conformance with the
provisions of this article shall not constitute the sale of insurance
for purposes of the insurance law. However, no professional employer
organization shall function or hold itself out as an insurer, insurance
broker or insurance agent unless appropriately licensed by this state.
8. Worksite employees whose services are subject to sales tax shall be
deemed the employees of the client for purposes of collecting and
levying sales tax on the services performed by the worksite employee.
Unemployment compensation insurance. 1. During the term of a
professional employer agreement, a professional employer organization
shall be liable in accordance with the provisions of article eighteen of
this chapter for the payment of contributions, penalties and interest on
wages paid by the professional employer organization to worksite
employees.
2. The professional employer organization shall report and pay all
required contributions to the unemployment compensation fund using the
state employer account number and the contribution rate of the
professional employer organization.
Violations, penalties, procedures. 1. Any professional employer
organization or person purporting to be a professional employer
organization who has failed to comply with the registration requirements
of section nine hundred eighteen of this article shall be deemed to have
violated this article.
2. Any professional employer organization or person purporting to be a
professional employer organization who has failed to comply within the
time specified by law with an order issued by the commissioner to comply
with the registration requirements of section nine hundred eighteen of
this article shall be deemed to have violated this article.
3. Any client who enters into a professional employer agreement with a
professional employer organization or person purporting to be a
professional employer organization, who is required to register, but
whom the client knows or should have known has failed to register,
failed to renew its registration or had its registration revoked by the
commissioner shall be deemed to have violated this article.
4. (a) The commissioner may impose a civil penalty upon a professional
employer organization, a person purporting to be a professional employer
organization, and all persons or entities that own a five percent or
greater interest in the professional employer organization, that have
been deemed to have violated this article, for no more than three
thousand dollars for the initial violation, and for no more than five
thousand dollars for a second or subsequent violation.
(b) The commissioner may impose a civil penalty upon any client
described in subdivision three of this section that has been deemed to
have violated this article, for no more than one thousand dollars for
the initial violation, and for no more than five thousand dollars for a
second or subsequent violation.
(c) The order imposing such civil penalty may be served personally or
by certified mail at the last known mailing address of the person being
served. Such order shall be in writing and shall describe the nature of
the violation, including reference to the provisions of subdivisions
one, two and three of this section alleged to have been violated.
5. An order issued under this section shall be final and not subject
to review by any court or agency unless review is had pursuant to
section one hundred one of this chapter. Provided that no proceeding for
administrative or judicial review as provided in this chapter shall then
be pending and the time for initiation of such proceeding shall have
expired, the commissioner may file with the county clerk of the county
where the person against whom the penalty has been imposed has a place
of business the order of the commissioner or the decision of the
industrial board of appeals containing the amount of the civil penalty.
The filing of such order or decision shall have the full force and
effect of a judgment duly docketed in the office of such clerk. The
order or decision may be enforced by and in the name of the commissioner
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.
6. If any professional employer organization or person purporting to
be a professional employer organization shall have failed to comply
within twenty days of an order by the commissioner to register or renew
registration, the commissioner may seek to enjoin such unlawful
activity, pursuant to the civil practice law and rules.
7. The intentional failure of a professional employer organization or
person purporting to be a professional employer organization to comply
with the registration requirements of section nine hundred eighteen of
this article shall be a class B misdemeanor. The officers and agents of
a professional employer organization or person purporting to be a
professional employer organization who knowingly permit such
organization to violate the registration requirements of section nine
hundred eighteen of this article shall be guilty of a class B
misdemeanor.
ARTICLE 32 Licensing of Mold Inspection, Assessment and Remediation Specialists and Minimum Work Standards
TITLE 1 Licensing of Mold Inspection, Assessment and Remediation Specialists and Minimum Work Standards
TITLE 2 Minimum Work Standards For the Conduct of Mold Assessments and Remediation By Licensed Persons
ARTICLE 33 Elevators and Other Conveyances; Licensing
Application. 1. This article covers licensing of businesses and
occupations that engage in design, construction, installation,
inspection, testing, maintenance, alteration, service, and repair of the
following equipment:
(a) hoisting and lowering mechanisms equipped with a car or platform
which moves between two or more landings. This equipment includes, but
is not limited to elevators, platform lifts, and non-residential
stairway chair lifts;
(b) power driven stairways and walkways for carrying persons between
landings. This equipment includes, but is not limited to, escalators and
moving walks;
(c) hoisting and lowering mechanisms equipped with a car, which serves
two or more landings and is restricted to the carrying of material by
its limited size or limited access to the car. This equipment includes,
but is not limited to, dumbwaiters, material lifts, and dumbwaiters with
automatic transfer devices as defined in section nine hundred fifty-one
of this article; and
(d) automatic guided transit vehicles on guideways with an exclusive
right-of-way. This equipment includes, but is not limited to, automated
people movers.
2. The following equipment is not covered by this article:
(a) personnel and material hoists;
(b) manlifts;
(c) mobile scaffolds, towers, and platforms;
(d) powered platforms and equipment for exterior and interior
maintenance;
(e) conveyor and related equipment;
(f) cranes, derricks, hoists, hooks, jacks, and slings;
(g) industrial trucks;
(h) portable equipment, except for portable escalators;
(i) tiering and piling machines used to move materials to and from
storage located and operating entirely within one story;
(j) equipment for feeding or positioning materials including, but not
limited to, machine tools and printing presses;
(k) skip or furnace hoists;
(l) wharf ramps;
(m) railroad car lifts or dumpers;
(n) stairway chairlifts for private residences; and
(o) line jacks, false cars, shafters, moving platforms, and similar
equipment used for installing an elevator by a contractor licensed in
this state.
3. The licensing provisions of this article shall not apply to the
owners or lessees of private residences who design, construct, install,
alter, repair, service, or maintain conveyances that are located or will
be located in such owner or lessee's private residence. However, any
person hired to design, construct, install, alter, repair, service,
maintain, or perform any other work related to such conveyances must
comply with the provisions of this article.
4. No license shall be required for the removal or dismantling of
conveyances.
5. No license shall be required for the outfitting, removal,
refinishing, or replacement of interior finishes, including wall panels,
drop ceilings, handrails and flooring, removal or replacement of
interior lighting, recladding of doors, transoms and front return
panels, finishing, or ornamental work on car operating panels.
6. The provisions of this article and the rules adopted pursuant
thereto shall be the minimum standard required and shall supersede any
special law or local ordinance inconsistent therewith, and no local
ordinance inconsistent therewith shall be adopted, but nothing herein
contained shall prevent the enactment by local law or ordinance of
additional requirements and restrictions.
7. Any municipal corporation may waive licensing fees for any
individual seeking an elevator license, or its equivalent, offered by
such municipal corporation if such individual holds an elevator
mechanic's license pursuant to this article; provided, however, that any
elevator mechanic's license, or its equivalent, offered by a municipal
corporation shall not be inconsistent with the requirements of this
article and nothing herein shall prevent the enactment by local law or
ordinance of additional requirements.
Definitions. As used in this article, the following terms shall
have the following definitions:
1. "Automated people mover" means a guided transit mode with fully
automated operation, featuring vehicles that operate on guideways with
exclusive right-of-way.
2. "Accessibility lift" means elevators or conveyances that are
intended for transportation of persons with disabilities, such as
platform lifts and stairway chairlifts, including equipment covered by
the provisions of ASME (American Society of Mechanical Engineers) A18.1
2017 Safety Standard for Platform Lifts and Stairway Chairlifts.
3. "Accessibility lift technician" means a person who performs
accessibility lift work.
4. "Accessibility lift technician's license" means a restricted
elevator mechanic's license that authorizes the holder to engage in
accessibility lift work.
5. "Accessibility lift work" means elevator and conveyance work that
is restricted to accessibility lifts.
6. "Business license" means a license that authorizes the holder to
engage in the business of elevator and conveyance work, or elevator and
conveyance inspections.
7. "Elevator and conveyance work" means performing activities that
include the design, construction, installation, testing, maintenance,
alteration, service, and repair of any elevator or conveyance.
8. "Elevator or conveyance" means any equipment identified in
paragraphs (a) through (d) of subdivision one of section nine hundred
fifty of this article, including any elevator, dumbwaiter, escalator,
moving sidewalk, platform lifts, non-residential stairway chairlifts and
automated people movers. Elevator or conveyance shall not mean any
equipment identified in subdivision two of section nine hundred fifty of
this article.
9. "Elevator and conveyance inspections" means performing the
inspection or any related testing of any elevator or conveyance, but
does not include government regulatory inspections performed by an
authority having jurisdiction to enforce any applicable building codes
and any elevator codes.
10. "Elevator" means a hoisting and lowering mechanism, equipped with
a car, that moves within guides and serves two or more landings.
11. "Elevator or conveyance component" means any elevator or
conveyance, or any parts, components, or subsystems thereof, or any
combination thereof.
12. "Elevator contractor" means any business that engages in elevator
and conveyance work.
13. "Elevator helper/apprentice/assistant mechanic" means any person
who works under the general direction of a licensed elevator mechanic.
14. "Elevator inspector" means any person who performs elevator and
conveyance inspections, whether individually or through an elevator
inspection contractor or public employer.
15. "Elevator inspection contractor" means any business that performs
elevator and conveyance inspections.
16. "Elevator mechanic" means any person who performs elevator and
conveyance work.
17. "Escalator" means a power-driven, inclined, continuous stairway
used for raising or lowering passengers.
18. "Existing installation" means an installation that has been
completed or is under construction prior to the effective date of this
article.
19. "License" means a credential duly issued by the commissioner
authorizing the holder to engage a business or an occupation whose scope
includes accessibility lift work, or elevator and conveyance work, or
elevator and conveyance inspections.
20. "Elevator contractor's license" means a business license that
entitles the holder thereof to engage in the business of elevator and
conveyance work in this state.
21. "Elevator inspection contractor's license" means a business
license that entitles the holder thereof to engage in the business of
elevator and conveyance inspections in this state.
22. "Elevator mechanic's license" means an occupational license that
entitles the holder thereof to engage in elevator and conveyance work in
this state for a licensed elevator contractor.
23. "Elevator inspector's license" means an occupational license that
entitles the holder thereof to perform elevator and conveyance
inspections in this state for a licensed elevator inspection contractor.
24. "Elevator accessibility technician's license" means an
occupational license that entitles the holder thereof to engage in
elevator and conveyance work in this state that is restricted to
platform lifts including those installed in private residences which are
covered by the provisions of ASME (American Society of Mechanical
Engineers) codes and standards A18.1 2017 Safety Standard for Platform
Lifts and Stairway Chairlifts and any successor standard for just
platform lifts and stairway chairlifts. An applicant for such a
restricted license shall complete an application approved by the
commissioner and shall have at least three years verified work
experience in constructing, maintaining, and repairing such lifts and
shall provide the commissioner a certificate of completion of an
accessibility training program for lifts under the scope of A18.1 2017
such as the certified accessibility and private residence lift
technician (CAT) training provided by the National Association of
Elevator Contractors (NAEC), or an equivalent program as determined by
the commissioner.
25. "Moving walk/sidewalk" means a type of passenger-carrying device
on which passengers stand or walk, and in which the passenger-carrying
surface remains parallel to its direction of motion and is
uninterrupted.
26. "Occupational license" means a license that authorizes the holder
to engage in accessibility lift work, or elevator and conveyance work or
elevator and conveyance inspections.
27. "Person" means any natural person.
28. "Business" means any corporation, or instrumentality of a
corporation, self-employed person, company, unincorporated association,
firm, partnership, limited liability company, corporation, or any other
entity, or any owner or operator of any of the foregoing entities.
29. "Private residence" means a separate dwelling or a separate
apartment in a multiple dwelling, which is occupied by members of a
single family unit.
30. "Repair" means reconditioning or renewal of any elevator or
conveyance or component necessary to keep such equipment in compliance
with applicable code requirements.
31. "Alteration" means any change to any conveyance or component other
than maintenance, repair, or replacement, but shall not include the
professional services of engineering or architecture as defined in
sections seventy-two hundred one and seventy-three hundred one of the
education law.
32. "Design" means the act or process of planning the repair,
alteration, or construction of any conveyance, but shall not include the
professional services of engineering or architecture as defined in
sections seventy-two hundred one and seventy-three hundred one of the
education law.
33. "Construction" means the act or process of constructing any
conveyance, and includes vertically constructing or connecting any
conveyance or part or system thereof.
34. "Inspection" means a critical examination, observation, or
evaluation of quality and code compliance of any conveyance.
35. "Testing" means a process or trial of operation of any conveyance.
36. "Maintenance" means a process of routine examination, lubrication,
cleaning, and adjustment of any conveyance or components for the purpose
of ensuring performance in accordance with any applicable code
requirements.
37. "Service or servicing" means a service call or other unscheduled
visit, not including routine maintenance or a repair, to troubleshoot,
adjust or repair an improperly functioning or an otherwise shut down
conveyance.
38. "Temporarily dormant elevator, dumbwaiter, or escalator" means an
installation temporarily placed out of service under the following
circumstances: (a) (i) when such installation's power supply has been
disconnected; and (ii) the car is parked and any doors are closed and
latched; and (iii) a wire seal is installed on the mainline disconnect
switch by an elevator inspector; or (b) as determined by state or local
law, code, rule, or regulation.
39. "Personnel and material hoists" means rack and pinion hoists,
alimaks, and machines of a similar nature used for the hoisting of
construction material, equipment and personnel, or the removal of
debris, all during the construction, renovation, and/or demolition phase
of any construction project whether an inside or outside hoist.
40. "Installation" means to place or fix any conveyance or component
in position for operation.
41. "Subsidiary" means an entity that is controlled directly, or
indirectly through one or more intermediaries, by an elevator contractor
or elevator inspection contractor or by such contractor's parent
company.
42. "Successor" means an entity engaged in work substantially similar
to that of the predecessor, where there is substantial continuity of
operation with that of the predecessor.
43. "Board" means the New York state elevator safety and standards
advisory board established by section nine hundred fifty-six of this
article.
Licensing and compliance requirements. 1. Except as otherwise
provided for in subdivisions three, four, and five of section nine
hundred fifty of this article, it shall be unlawful for any business or
person:
(a) to engage in the business of elevator and conveyance work, or
accessibility lift work, or hold themselves out as an elevator
contractor, or both, unless such person or business has a valid elevator
contractor's license; or
(b) to engage in the business of elevator and conveyance inspections,
or hold themselves out as an elevator inspection contractor, or both
unless such person or business has a valid elevator inspection
contractor's license; or
(c) any combination of the above.
2. Except as otherwise provided for in subdivisions three, four, and
five of section nine hundred fifty of this article, it shall be unlawful
for any person:
(a) to engage in elevator and conveyance work, or to hold themselves
out as an elevator mechanic, or both, unless such person has a valid
elevator mechanic's license and works for a licensed elevator contractor
or a public entity; or
(b) to engage in accessibility lift work, or to hold themselves out as
accessibility lift technicians, or both, unless such person has a valid
accessibility lift technician's license and works for a licensed
elevator contractor or a public entity; or
(c) to engage in elevator and conveyance inspections, or to hold
themselves out as an elevator inspector, or both, unless such person
holds an elevator inspector's license and works for a licensed elevator
inspection contractor or a public entity; or
(d) any combination of the above, provided, however, that the
installation of branch circuits and wiring terminations for machine room
and pit lighting, receptacles and HVAC as described in the NFPA National
Electric Code 620.23 and 620.24 as well as fire and heat detectors and
alarms, may be performed by a licensed electrical contractor.
3. It shall be the responsibility of licensees to ensure that any
elevator and conveyance work or elevator and conveyance inspections that
they perform is in compliance with existing state and local building and
maintenance codes.
4. It shall be the responsibility of holders of business licenses to
ensure that the licensing requirements of subdivisions one and two of
this section are complied with by their employees and by businesses that
they contract with, and to immediately report to the commissioner any
failures to comply with the licensing requirements of subdivisions one
and two of this section by other businesses or persons that they become
aware of.
License procedure. All applications for licenses shall be
submitted to the department in writing on forms furnished by the
commissioner and shall contain the information set forth in this section
as well as any additional information that the commissioner may require.
The commissioner shall also set fees for licensing under this section.
Upon approval of an application for a license the commissioner shall
issue such license which shall be valid for two years. The fees for such
license and renewal thereof shall be set by the commissioner. Any denial
for such application shall set forth the reasons therefor.
1. Applications for business licenses. Every application for a license
under this article shall include the following:
(a) the name, residence address, and business address of the
applicant;
(b) the number of years the applicant has engaged in the business or
practice of elevator contracting;
(c) the approximate number of persons, if any, to be employed by the
applicant;
(d) evidence that the applicant is or will be covered by general
liability, personal injury, and property damage insurance; and
(e) any other information which the commissioner may require.
2. Application for occupational licenses. Every application for a
license under this article shall include the following:
(a) the name and residential address of the applicant;
(b) the relevant experience of the applicant, including years, or
hours, or both, of experience in performing elevator and conveyance
work, or elevator inspection work, or both and the nature of such
experience, and the names of the elevator contractors or elevator
inspection contractors that the applicant has worked for, including the
license numbers of such contractors;
(c) any training completed by the applicant, including certificates of
completion;
(d) any continuing education completed by the applicant, including
certificates of completion;
(e) the name and license number, if known, of the elevator contractor
or elevator inspection contractor that the applicant works for or seeks
to work for; and
(f) any other information which the commissioner may require.
3. The department shall maintain and publish a registry of all
licenses issued pursuant to this section and shall make the registry
available on its website.
Qualifications, training, and continuing education. 1. No
license or application for renewal shall be granted to any business or
person who has not paid the required application fee and demonstrated
his or her qualifications and abilities, training, and any applicable
continuing education, by obtaining and maintaining in good standing the
industry certifications and continuing education identified or required
in this section.
(a) Applicants for an elevator mechanic's license must possess a
current industry certification issued by the National Association of
Elevator Contractors (NAEC) as a Certified Elevator Technician (CET), or
equivalent certification recognized by the commissioner.
(b) Applicants for an accessibility lift technician license must
possess a current industry certification issued by the National
Association of Elevator Contractors (NAEC) as a certified accessibility
and private residence lift technician (CAT) program or an equivalent
certification recognized by the commissioner.
(c) Applicants for an elevator inspector's license must possess a
current industry certification issued by the Qualified Elevator
Inspector Training Fund (QEITF) or by the National Association of
Elevator Safety Authorities (NAESA) as a qualified elevator inspector
(QEI) or an equivalent license recognized by the commissioner.
2. Applicants for an elevator contractor's license must demonstrate to
the commissioner that such elevator contractor employs licensed elevator
mechanics who perform elevator and conveyance work and have proof of
compliance with the insurance requirements of this article.
3. Applicants for an elevator inspection contractor's license must
demonstrate to the satisfaction of the commissioner that such applicant
is a certified elevator inspector, or employs certified elevator
inspectors, or both, to perform elevator and conveyance inspections and
have proof of compliance with the insurance requirements of this
article.
4. Alternative qualifications. Applicants for an elevator mechanic's
license or accessibility lift technician's license who do not possess
the industry certifications identified above may demonstrate their
qualifications and abilities, training, and continuing education by
providing acceptable proof of:
(a) a certificate of successful completion and successfully passing
the mechanic examination of a nationally recognized training program for
the elevator industry including, but not limited to, the national
elevator industry educational program or its equivalent, supplemented
with continuing education as may be required by this section; or
(b) a certificate of successful completion of the state registered
apprenticeship programs for the apprenticeable trades of Elevator
Servicer Repairer, including the joint apprentice and training committee
of the elevator industry of local 3, IBEW, EE division training program,
or equivalent registered apprenticeship program for elevator mechanics,
having standards substantially equivalent to those programs and
registered with the bureau of apprenticeship and training, U.S.
department of labor or a state apprenticeship council, supplemented with
continuing education as may be required by this section; or
(c) successful completion of an examination established by the New
York state civil service commission or a municipal civil service
commission having jurisdiction as defined by subdivision four of section
two of the civil service law, subsequent appointment to a position
related to work on elevator construction, maintenance, mechanics,
inspection, or repair as may be properly classified by the commissioner
of civil service or a municipal civil service commission having
jurisdiction, and work on elevator construction, maintenance, mechanics,
inspection, or repair, with direct and immediate supervision in this
state for a period of not less than four years immediately prior to the
effective date of this article supplemented with continuing education as
may be required by this section; or
(d) in the event an elevator contractor encounters a verifiable
shortage of licensed mechanics, an elevator contractor may request that
the commissioner issue a temporary elevator mechanic license to an
elevator apprentice who can provide documentation demonstrating that
such apprentice is currently enrolled in an elevator apprenticeship
program and has a minimum of four thousand hours of elevator industry
experience. A verifiable shortage can be determined by the commissioner
in consultation with the board. Each temporary elevator mechanic license
shall be valid for ninety days so long as such temporary elevator
mechanic is employed by the licensed elevator contractor that requested
the temporary elevator mechanic license and shall be renewable so long
as the verifiable shortage of license holders exists. Fees shall be
determined by the commissioner.
5. Continuing education. The renewal of all licenses granted under the
provisions of subdivision four of this section shall be conditioned upon
acceptable proof of completion of a course designed to ensure the
continuing education of licensees on new and existing national, state,
and local conveyances codes and standards and on technology and
technical education and workplace safety, provided the applicant was
notified of the availability of such courses when the license was
previously granted or renewed. Such course shall consist of not less
than eight contact hours (.8 CEU) annually and completed preceding any
such license renewal. The board shall be empowered to make
recommendations to the commissioner on nationally recognized continuing
education and training programs. The commissioner shall establish
requirements for continuing education and training programs which shall
be reviewed by the board annually, and shall approve such programs and
providers, as well as maintain a list of approved programs which shall
be made available to license applicants, permit applicants, renewal
applicants and other interested parties upon request. The commissioner
may promulgate rules and regulations setting forth the criteria for
approval of such programs, the procedures to be followed in applying for
such approval, and other rules and regulations as the commissioner deems
necessary and proper to effectuate the purposes of this section.
6. Examinations. The board shall determine, if after the successful
completion of the first renewal, if an examination is warranted as a
condition of a subsequent renewal provided the applicant was notified of
the availability of such examination when the license was previously
granted or renewed. The board shall take into consideration previous
years' experience, training, and previous relevant examinations that the
applicant has already completed.
7. Special provisions. No person shall erect, construct, alter,
replace, maintain, remove, or dismantle any conveyance, or wire any
conveyance from the mainline feeder terminals on the controller in
existing buildings or structures in the jurisdiction of this state
unless such person is a licensed elevator mechanic working under the
direct supervision of a licensed elevator contractor. A licensed
elevator contractor is not required for removing or dismantling
conveyances, which are destroyed as a result of a complete demolition of
an existing building or structure.
Powers of the commissioner. 1. The commissioner shall have the
authority to inspect, or cause to be inspected, ongoing or completed
conveyance projects and to conduct an investigation thereof upon the
commissioner's own initiation or upon receipt of a complaint by any
person or entity. However, nothing in this subdivision shall permit the
commissioner to enter a private residence.
2. If, upon receipt of a complaint alleging a violation of this
article, the commissioner reasonably believes that such violation
exists, he or she shall investigate as soon as practicable to determine
if such violation exists. If the commissioner determines that no
violation or danger exists, the commissioner shall inform the
complaining person or entity. If, upon investigation, the commissioner
determines that the alleged violation exists, the commissioner may deem
such violation to create a dangerous condition for purposes of section
two hundred of this chapter only and may issue a notice thereunder
prohibiting further work.
3. The commissioner may, after a notice and hearing, suspend or revoke
a license issued under this article based on any of the following
violations:
(a) any false statement as to a material matter in the application;
(b) fraud, or misrepresentation, in securing a license;
(c) failure to notify the commissioner and the owner or lessee of a
conveyance of any condition not in compliance with this article;
(d) a violation of section nine hundred fifty-two of this article; or
(e) a finding by the commissioner that a license holder has violated
this article or any rule or regulation promulgated thereunder twice
within a period of three years, or that a license holder has violated a
provision of this article and such violation resulted in a serious
threat to the health or safety of an individual or individuals. The
commissioner may, in addition to ordering that such license be revoked,
bar such license holder from being eligible to reapply for such license,
or any other license under this article, for a period not to exceed two
years.
4. (a) Except as provided in paragraph (b) of this subdivision, if the
commissioner finds, after notice and hearing, that an individual has
violated any provision of this article, such commissioner may impose a
civil penalty not to exceed ten thousand dollars for each such
violation. The commissioner may impose civil penalties on a contractor
or any party that employs or otherwise utilizes unlicensed mechanics.
Upon a second or subsequent violation within three years of the
determination of a prior violation, the commissioner may impose a civil
penalty not to exceed twenty thousand dollars per violation. The
commissioner shall submit a quarterly report to the board on violations
found pursuant to this subdivision.
(b) The penalty provided for in paragraph (a) of this subdivision may
be increased to an amount not to exceed five thousand dollars if the
violation resulted in a serious threat to the health or safety of an
individual or individuals provided, however, that such penalty may be
increased to an amount not to exceed twenty-five thousand dollars if the
violation resulted in the death of any individual or individuals.
5. The commissioner may bring an action in a court of competent
jurisdiction to enjoin any conduct that violates the provisions of this
article.
6. The board shall examine the various state and local requirements
and industry standards and practices with respect to elevator
inspections in this state and shall provide recommendations to the
commissioner for coordinating existing state, local, and private
inspections to ensure that elevators are being inspected by licensed
inspectors.
7. The commissioner may promulgate rules and regulations necessary to
carry out and effectuate the provisions of this article.
New York state elevator safety and standards advisory board. 1.
An elevator safety and standards advisory board is hereby created, to
consist of thirteen members. The governor shall appoint seven members,
the temporary president of the senate shall appoint three members, and
the speaker of the assembly shall appoint three members. The appointees
to the board shall be representatives of elevator manufacturers,
building owners or managers, elevator industry construction workers,
elevator servicing companies, elevator industry associations, elevator
mechanics, or fire marshals. The board shall meet on an as needed basis
to advise the commissioner on the implementation of this article. The
board shall elect a chairperson to serve for the term of their
appointment to the board.
2. The members appointed pursuant to this section shall serve at the
pleasure of the authority appointing such member. The members shall
serve without salary or compensation, but shall be reimbursed for
necessary expenses incurred in the performance of their duties.
3. The board may consult with engineering authorities and
organizations concerned with standard safety codes, rules and
regulations governing the maintenance, servicing, construction,
alteration, installation, and inspection of conveyances and the
adequate, reasonable, and necessary qualifications of elevator
mechanics, contractors, and inspectors.
4. The board shall have the authority to administer, oversee, and
approve examinations for the purpose of qualifying applicants pursuant
to subdivision six of section nine hundred fifty-four of this article.
In exercising this authority, the board shall, in its discretion,
determine the criteria and standards for examinations to satisfy the
requirements of this subdivision, such as the mechanic examination of
the national elevator industry educational program, or an equivalent
examination recognized by the board, which shall satisfy the
requirements of this subdivision.
Exempt persons. 1. This article shall not be construed to apply
to the practice, conduct, activities, or services by a person licensed
to practice architecture within this state pursuant to article one
hundred forty-seven of the education law or engineering within this
state pursuant to article one hundred forty-five of the education law.
2. This article shall not be construed to apply to the outfitting,
removal, refinishing, or replacement of interior finishes of elevators,
including wall panels, drop ceilings, handrails and flooring, removal or
replacement of interior lighting, recladding of doors, transoms and
front return panels, finishing or ornamental work on elevator car
operating panels.
3. This article shall not be construed to apply to the operation of an
elevator by any person employed as an operator of such elevator,
including elevators operating under a temporary certificate of occupancy
as issued by the appropriate issuing agency.
ARTICLE 34 Certification of Public Service Employment
Definitions. For purposes of this article:
1. "Certifying employment" means either completing the employer
sections of the public service loan forgiveness form or sharing data
directly with the U.S. department of education that corresponds to the
information required for the public service loan forgiveness form.
2. "Employee" means someone who works for a public service employer,
regardless of whether the public service employer considers that work to
be full-time or part-time, contingent, or contracted.
3. "Full-time" for the purpose of certifying employment only means
working at least an average of thirty hours per week or at least an
average of thirty hours per week throughout a contractual or employment
period of at least eight months in a twelve-month period, such as
elementary and secondary school teachers, provided, however, that should
the U.S. department of education adopt a lower hourly standard, that
standard shall apply.
4. "Public service employer" means any employer designated as a public
service organization or employer by the U.S. department of education for
the purpose of the public service loan forgiveness program. The term
shall include any state, county, city or other local government
employer, including any office, department, independent agency, school
district, public college or university system, public library system,
authority, or other body, including the legislature and the judiciary,
as well as any employer that has received designation as a tax-exempt
organization pursuant to section 501(c)(3) of the U.S. Internal Revenue
Code. For the purposes of this article, this term does not include a
federal or tribal nation government organization, agency, or entity.
5. "Public service loan forgiveness form" means the form used by the
U.S. department of education to certify an individual's employment at a
public service organization and determine eligibility for the purposes
of the public service loan forgiveness program.
6. "Public service loan forgiveness program" means the federal loan
forgiveness program established pursuant to 20 U.S.C. 1087e(m) and
administered pursuant to 34 C.F.R 685.219, as of the effective date of
this article.
Hours worked and full-time employment. The following shall
apply for the purposes of certifying employment for the purposes of the
public service loan forgiveness program only and shall have no other
applicability for public service employers and their employees.
1. For faculty or teacher employees, a public service employer
certifying employment after the effective date of this subdivision shall
credit 3.35 hours worked for each hour of lecture or classroom time,
regardless of when the hours were worked, including hours worked prior
to the effective date of this subdivision. This subdivision does not
supersede any greater adjustment factor established by a collective
bargaining agreement or employer policy in recognition of additional
work associated with lecture or classroom time for the purpose of the
public service loan forgiveness program.
2. When determining whether an employee is considered "full-time," as
that term is defined in this article, for the purpose of certifying
employment for the public service loan forgiveness program only, a
public service employer shall not treat any adjusted total hours worked
pursuant to subdivision one of this section differently from hours
worked without an adjustment factor.
3. For the purpose of certifying employment only, a public service
employer shall consider as "full-time" any employee who satisfies the
definition of "full-time" provided in this article.
Certifying employment. 1. Should the U.S. department of
education permit public service employers to certify employment for past
or present individual employees or groups of employees directly with the
U.S. department of education or its agents, notwithstanding other
provisions of law, a public service employer shall be permitted to send
to the U.S. department of education or its agents the information
necessary for employment certification.
2. If a public service employer does not directly certify employment
with the U.S. department of education pursuant to subdivision one of
this section, the public service employer shall annually provide notice
of renewal and a copy of the public service loan forgiveness form with
the employer information and employment certification sections of the
form already completed to:
a. an employee who requests a public service loan forgiveness form;
b. any current employee for whom the public service employer has
previously certified employment; and
c. an employee who is ending his or her work with the public service
employer.
The partially completed form should reflect employment for the prior
calendar year, and may reflect longer periods of employment, as
necessary.
3. A public service employer shall not unreasonably delay in
certifying employment.
4. Nothing in this section shall prevent a public service employer
from seeking permission from its employees prior to certifying their
employment.
ARTICLE 35 New York Youth Jobs Connector Program
Administration and services. 1. There is hereby established
within the department a New York youth jobs connector program to connect
unemployed and underemployed individuals between the ages of sixteen and
twenty-four years with targeted educational, occupational, and training
services to help prepare such individuals for employment and improve
opportunities for such individuals to become employed. The New York
youth jobs connector program shall be responsible for facilitating the
coordination and delivery of existing programs and resources throughout
the state which are designed to assist individuals identified in this
article with opportunities for employment, skills development, job
training, and the other related services described in subdivision two of
this section.
2. The department shall coordinate with the office of strategic
workforce development, the department of education, the state university
of New York, the city university of New York, the office of temporary
and disability assistance, the office of children and family services,
the urban development corporation and its subsidiaries, and any other
relevant agency or entity, to carry out the purposes of this article and
leverage existing funds and programs for unemployed and underemployed
youth consistent with the purposes described herein. Services provided
by such programs may include, but are not limited to, high school
equivalency, basic education, job skills training, English-as-a-second
language, job readiness training, job placement services, case
management, career counseling and assessment, pre-apprenticeships and
apprenticeships, pre-vocational skills training, employability planning,
supportive services, proactive outreach to unemployed and underemployed
youths, skills and vocational programs leading to career pathways and
gainful employment, and the development or promulgation of other
resources and programs to assist youths between the ages of sixteen and
twenty-four years, particularly at-risk youths in such category.
Funding. The department shall identify and leverage any
available funds as necessary, including any private funds provided for
the purpose of supporting this article, which may be used to subsidize
the New York youth jobs connector program. The department may further
identify any private or not-for-profit entities which currently provide
job placement or training services, or other services described in
section one thousand five of this article, whether as the entity's
primary purpose or coincidental to such entities' operations. Such
entities may include, but not be limited to, boys and girls clubs, local
or statewide affiliated young persons' organizations, and employer
associations. The department may, to the extent practicable, contract
with such entities for the explicit purpose of using their membership or
staff to directly seek out and notify unemployed youths between the ages
of sixteen and twenty-four years about the New York youth jobs connector
program and the services offered thereunder.
Public outreach. 1. The department shall engage in outreach
efforts to raise awareness about the New York youth jobs connector
program and the services offered thereunder. Such outreach may include,
but not be limited to:
(a) brochures and posters to be distributed to school districts,
boards of cooperative educational services, public libraries, community
colleges, trade schools, agricultural and technical colleges, and other
public institutions of higher education;
(b) use of social media, internet, radio, newspapers, and print
advertising;
(c) participation in, or organization of program and job fairs;
(d) posting easily accessible hyperlinks to such information on the
department's website;
(e) collaboration with employment agencies or unions; and
(f) recruitment of individuals to serve as visible public ambassadors
to promote the program.
2. The department, in consultation with the office of information
technology services, shall create publicly accessible online surveys to
assess the goals, eligibility, and job readiness of individuals served
by the program to match such individuals with a subset of relevant
programs and services for consideration. Such surveys shall be made
available on the department's website. The department shall also publish
an informational webpage to provide details on the program and outreach
events as well as information on and a hyperlink to the online surveys.
Annual report. Not later than two years after the effective
date of this article, and annually thereafter, the commissioner shall
prepare and submit a report to the governor, the temporary president of
the senate, and the speaker of the assembly on the efficacy and progress
made by the New York youth jobs connector program. In preparing the
report, the commissioner may seek and include input from relevant
stakeholders, including participating youths, schools, programs, and
employers. The report shall also include recommendations on further
improvements concerning outreach efforts to spread awareness of the
program.
ARTICLE 36 New York State Fashion Workers Act
Short title. This article shall be known and may be cited as
the "New York state fashion workers act".
Definitions. As used in this article:
1. "Client" means a person or entity that contracts for and manages
the performance of modeling services from a model or model management
company, directly or through intermediaries.
2. "Model" means an individual who, in the course of such individual's
trade, occupation or profession, performs modeling services, regardless
of the individual's status as an employee or independent contractor.
3. (a) "Model management company" means any person or entity, other
than a person or entity licensed as an employment agency under article
eleven of the general business law, that:
(i) is in the business of managing models participating in
entertainments, exhibitions or performances;
(ii) procures or attempts to procure, for a fee, employment or
engagements for persons seeking employment or engagements as models; or
(iii) renders vocational guidance or counseling services to models for
a fee.
(b) Model managing shall not include direct engagement of a model who
is not represented by an agency or management company for use of models
in a campaign or shoot.
4. "Model management group" means two or more model management
companies that are majority owned by the same ultimate parent, entity or
persons. A model management group may satisfy any reporting and
financial requirements of this article on a consolidated basis. As a
condition of registration as a model management group, each company that
is a member of the group shall guarantee payment of all financial
obligations of each other member.
5. "Modeling services" means the appearance by a model in photographic
sessions or the engagement of a model in live runway, live, filmed, or
taped performances, including on social media platforms, requiring the
model to pose, provide an example or standard of artistic expression or
to be a representation to show the construction or appearance of some
thing or place for purposes of display or advertising, including the
provisions of castings, fittings, photoshoots, showroom, parts or fit
modeling services. "Modeling services" includes the use of a digital
replica.
6. "Exclusive representation" means an agreement, or a clause
contained in an agreement, entered into between a model management
company and a model that restricts such model from being represented by
another party not subject to such agreement for a specified period of
time or in a specified geographical area, that is similar to such
model's work for the model management company.
7. "Deal memo" means a summary written in plain language which
identifies the key components of any employment, engagement,
entertainment, exhibition, or performance, including but not limited to
the scope of work, rate of pay, payment term, usages, incurred expenses,
including any expenses to be initially incurred by either the model
management company or the model and reimbursed by the client, and other
expectations of the model. A deal memo shall be provided in the language
requested by the model.
8. "Digital replica" means a significant, computer-generated or
artificial intelligence-enhanced representation of a model's likeness,
including but not limited to, their face, body, or voice, which
substantially replicates or replaces the model's appearance or
performance, excluding routine photographic edits such as color
correction, minor retouching, or other standard post-production
modifications.
Registration required. 1. Except as otherwise provided in this
section, a model management company or model management group shall not
engage in business in this state or enter into any arrangement with a
client or model for the purpose of providing model management company or
model management group services in this state unless the model
management company or model management group is registered under this
article. A model management company or model management group that does
not comply with the provisions of this article shall not be a registered
model management company or model management group in this state.
2. A model management company or model management group shall be
exempt from the registration requirements specified in this section if
such model management company or model management group:
(a) submits a properly executed request for an exemption from
registration to the department;
(b) is domiciled outside this state and is licensed or registered as a
model management company in another state that has requirements at least
as strict as this article; and
(c) does not maintain an office in this state or solicit in any manner
clients located or domiciled within this state.
Registration process. 1. Except as otherwise provided in this
section, a model management company or model management group required
to be registered under this article shall provide the department with
information required by the department on forms that the department
specifies.
2. At a minimum, a model management company or model management group
shall provide the following information:
(a) all names under which it conducts business;
(b) the address of the principal place of business of the model
management company or model management group and the address of each
office it maintains in New York state;
(c) the model management company or model management group's taxpayer
or employer identification number;
(d) a list by jurisdiction of each name under which the model
management company or model management group has operated in the
preceding five years, including any alternative names, names of
predecessors and, if known, successor business entities; and
(e) in the event the model management company or the ultimate parent
of a model management group is a privately or closely held company, the
model management company or model management group shall file a list of
all persons or entities that beneficially own a five percent or greater
interest in the model management company at the time of application and
a list of persons who formerly beneficially owned a five percent or
greater interest in the model management company or its predecessors in
the preceding five years. In the event the model management company or
the ultimate parent of a model management group is a publicly traded
company, the model management company or model management group shall
file a list of all persons or entities that beneficially own a fifty
percent or greater interest in the model management company or the
ultimate parent of the model management group at the time of
application.
3. Each model management company or model management group operating
within this state shall submit its initial registration to the
department within one year after the effective date of this article.
4. Upon application for registration, a model management company or
model management group with more than five employees that either work
from a location in this state or perform work relating to models in this
state shall deposit with the department a surety bond in the sum of
fifty thousand dollars.
5. Every model management company or model management group registered
pursuant to the provisions of this article shall pay to the commissioner
a registration fee before the certificate of registration is issued. The
registration fee for a model management company or model management
group operating with five or less employees shall be five hundred
dollars, and for a model management company or model management group
operating with more than five employees, the registration fee shall be
seven hundred dollars. If the application for registration is denied or
withdrawn, one-half of the registration fee provided herein shall be
returned to the applicant.
6. A registration or exemption from registration of a model management
company or model management group shall be valid for two calendar years
from the date of registration or exemption. Registrations or exemptions
may be renewed not less than ninety days before the expiration date of
the immediately preceding registration.
7. The department shall maintain a list of model management companies
and model management groups registered under this article and shall
issue a certificate of registration or a certificate of exemption to
each model management company or model management group duly registered.
8. The department shall prescribe forms necessary to promote the
efficient administration of this section.
Duties of model management companies. A model management
company shall:
1. be deemed to have a fiduciary duty to the models they represent and
shall be required to act in good faith, with the utmost honesty and
integrity, in the best interests of the models. This fiduciary duty
shall encompass all aspects of the model management company's
representation, including, but not limited to, negotiations, contracts,
financial management, and the protection of the models' legal and
financial rights;
2. conduct due diligence to ensure that any employment or engagement
procured through the model management company does not pose an
unreasonable risk of danger to the model. An unreasonable risk of danger
shall include, but not be limited to, failing to establish and
communicate a company policy that equals or exceeds the minimum
standards provided for by existing laws that address abuse, harassment,
or any other form of inappropriate behavior towards models represented
by the model management company or model management group;
3. use its best efforts to procure employment, engagements,
entertainments, exhibitions or performances for remuneration for the
models signed to the model management company or model management group;
4. ensure that any employment, engagement, entertainment, exhibition
or performance which requires nudity or other sexually explicit material
shall comply with the requirements of subdivision three of section
fifty-two-c of the civil rights law, as added by chapter three hundred
four of the laws of two thousand twenty;
5. provide models with written physical or digital copies of: (a) a
deal memo memorializing agreements, which includes the remuneration and
compensation such model shall be owed upon conclusion of services that
the model accepts, as soon as reasonably practical prior to the
commencement of a model's services, and (b) the final agreement
negotiated with clients in relation to such booking in the language
requested by the model making best efforts to sign the contract ahead of
booking, provided that the final agreement shall be provided to the
model within seven calendar days of the conclusion of the model's
services;
6. clearly specify and seek prior written approval from the model of
all items that may be initially paid for by the model management company
but will ultimately be deducted from the compensation due to the model
at the time of payment or settlement, together with an itemized
recitation as to how each item is to be computed, provided such charges
are not otherwise prohibited by this article. On a quarterly basis, a
model shall also be given copies of any and all documentation held by or
available to the model management company necessary to determine the
validity of each charge;
7. disclose any financial relationship, contractual or otherwise, that
may exist between the model management company and the client, other
than the agreement relating specifically to modeling services;
8. notify former models in writing, including electronic notification,
if the model management company collects royalties due to a model whom
the management company no longer represents;
9. post a physical copy of the model management company's certificate
of registration in a conspicuous place in the office of the model
management company and a digital copy on the model management company's
website;
10. include, in clear and legible type, the registration number of the
model management company in any advertisement, including social media
profiles for the model management company, for the purpose of the
solicitation of models for the model management company and in any
contract with a model or client; and
11. obtain clear written consent from the model for any creation or
use of a model's digital replica, detailing the scope, purpose, rate of
pay, and duration of such use. This consent must be obtained separately
from the representation agreement.
Prohibitions on model management companies. A model management
company shall not:
1. require or collect any fee or deposit from a model upon the signing
of, or as a condition to entering into, any contract or agreement
between the model management company and the model;
2. procure any accommodation for which payment shall be provided or
reimbursed by the model in any way, without providing a written
disclosure of the rate charged for the accommodation to the model in
advance of such model's stay at the accommodation;
3. deduct or offset from a model's payment or compensation any fee or
expense, including interest, other than the agreed upon commission as
set forth in the contract and any items advanced pursuant to subdivision
six of section one thousand thirty-four of this article;
4. advance the cost of travel or visa-related costs without informed
written consent from the model;
5. require a model to sign a model management company contract that
contains a term greater than three years;
6. require a model to sign a model management company contract that
renews without the model's affirmative written consent;
7. impose a commission fee greater than twenty percent of the model's
payment or compensation;
8. engage in discrimination or harassment of any kind against a model
because of any protected status covered under paragraph (a) of
subdivision one of section two hundred ninety-six of the executive law;
or
10. create, alter, or manipulate a model's digital replica using
artificial intelligence without clear, conspicuous and separate written
consent from the model.
Power of attorney. 1. Any power of attorney agreement between
a model management company and a model shall:
(a) be presented as an optional component of the model management
company's representation agreement;
(b) not be presented as a necessary condition of entering into an
agreement with the model management company;
(c) be subject to termination by the model at any time and for any
reason;
(d) not violate the provisions of subdivision one of section one
thousand thirty-four of this article and extend only to matters directly
related to the provision of modeling services, with the exclusion of the
use of the model's digital replica.
2. Any power of attorney agreement that violates this section shall be
considered void as a matter of public policy.
Duties of clients. A client shall:
1. compensate models at an hourly rate at least fifty percent higher
than the contracted hourly rate for any employment, engagement,
entertainment, exhibition or performance that exceeds eight hours in any
twenty-four hour period;
2. provide at least one thirty minute meal break for any employment,
engagement, entertainment, exhibition or performance that exceeds eight
hours in any twenty-four hour period;
3. only offer an employment or engagement to a model that does not
pose an unreasonable risk of danger to the model. An unreasonable risk
of danger shall include, but not be limited to, failure to establish and
communicate a company policy that equals or exceeds the minimum
standards provided for by existing law that addresses abuse, harassment,
or any other form of inappropriate behavior;
4. ensure that any employment, engagement, entertainment, exhibition
or performance which requires nudity or other sexually explicit material
shall comply with the requirements of subdivision three of section
fifty-two-c of the civil rights law, as added by chapter three hundred
four of the laws of two thousand twenty;
5. allow the model to be accompanied by their agent, manager,
chaperone, or other representative to any employment, engagement,
entertainment, exhibition or performance;
6. provide liability insurance to cover and safeguard the health and
safety of models; and
7. obtain clear and conspicuous prior written consent from the model
for any creation or use of a model's digital replica, detailing the
scope, purpose, rate of pay, and duration of such use.
Violations, penalties and procedures. 1. Any model management
company or model management group that has failed to comply with the
registration requirements of section one thousand thirty-two of this
article shall be deemed to have violated this article.
2. Any model management company or model management group that has
failed to comply within the time specified by law with an order issued
by the commissioner to comply with the registration requirements of
section one thousand thirty-two of this article shall be deemed to have
violated this article.
3. (a) The commissioner may impose a civil penalty upon a model
management company, model management group, or client that has been
deemed to have violated this article, for three thousand dollars for the
initial violation, and for five thousand dollars for a second or
subsequent violation.
(b) The order imposing such civil penalty may be served personally or
by certified mail in accordance with section thirty-three of this
chapter. Such order shall be in writing and shall describe the nature
of the violation, including reference to the provisions of subdivisions
one, two and three of this section alleged to have been violated.
4. An order issued under this section shall be final and not subject
to review by any court or agency unless a review is had pursuant to
section one hundred one of this chapter. Provided that no proceeding for
administrative or judicial review as provided in this chapter shall then
be pending and the time for initiation of such proceeding shall have
expired, the commissioner may file with the county clerk of the county
where the person against whom the penalty has been imposed has a place
of business the order of the commissioner or the decision of the
industrial board of appeals containing the amount of the civil penalty.
The filing of such order or decision shall have the full force and
effect of a judgment duly docketed in the office of such clerk. The
order or decision may be enforced by and in the name of the commissioner
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.
5. If any model management company has failed to comply within twenty
days of an order by the commissioner to register or renew registration,
the commissioner may seek to enjoin such unlawful activity, pursuant to
the civil practice law and rules.
6. The attorney general may bring and maintain an action in a court of
competent jurisdiction to enforce the provisions of this article when
the attorney general has determined there is reasonable cause to believe
that a model management company, model management group, or client has
engaged in repeated fraudulent or illegal acts or otherwise demonstrates
persistent fraud or illegality in the carrying on, conducting, or
transacting of business.
7. (a) A model who is aggrieved by a violation of this article may
file a complaint with the commissioner within six years after the acts
alleged to have violated this article occurred. The commissioner shall
prescribe the form of the complaint, which shall include, at a minimum:
(i) the name and mailing address of the model and of the person or
entity alleged to have violated this article;
(ii) a statement detailing the terms of the model's contract,
including a copy of such contract if available;
(iii) the model's occupation;
(iv) a statement detailing the alleged violations of this article; and
(v) a signed affirmation that all facts alleged in the complaint are
true.
(b) (i) Upon receiving a complaint alleging a violation of this
article, the commissioner shall send the person or entity named in the
complaint a written notice of complaint. The commissioner shall send
such notice by certified mail in accordance with section thirty-three of
the labor law and shall bear the cost of sending such notice.
(ii) Notice shall include:
(1) a copy of the complaint;
(2) materials of remedies available to the model for the violations of
said article by the person or entity named in the complaint;
(3) materials informing the person or entity that twenty days after
receiving the notice of complaint, the person or entity identified in
the complaint must answer; and
(4) materials informing the person or entity that failure to respond
to the complaint will create a rebuttable presumption in any civil
action commenced pursuant to this article that such person or entity
committed the violations alleged in the complaint.
(c) The response shall include:
(i) a written statement that the model has been paid in full and proof
of such payment;
(ii) a written statement that the model has not been paid in full and
the reasons for the failure to provide such payment; or
(iii) a written statement and any proof responding to the violations
alleged in the complaint.
(d) (i) Upon receiving the written response, the commissioner shall
send the model a copy of:
(1) the response;
(2) any enclosures submitted to the commissioner with the response;
and
(3) any other information about the status of the complaint.
(ii) If the commissioner receives no response from the person or
entity alleged to have violated this article to the notice of complaint
within the time provided by this subdivision, then there shall be a
determination that such person or entity committed the violations
alleged in the complaint. The commissioner shall mail a notice of
non-response to both the model and the person or entity named in the
complaint by regular mail and shall include with such notice proof that
the commissioner previously mailed the notice of complaint to the person
or entity named in the complaint by certified mail.
8. An aggrieved model may bring and maintain an action in a court of
competent jurisdiction to enforce the provisions of sections one
thousand thirty-four and one thousand thirty-five of this article. A
model management company or model management group that violates these
sections shall be liable for actual damages to any model that has
suffered damages due to such violation, reasonable attorneys' fees and
costs, and, unless the model management company or group proves a good
faith basis to believe that its actions were in compliance with the law,
an additional amount as liquidated damages in an amount of no more than
one hundred percent of the total amount of actual damages, except such
liquidated damages may be up to three hundred percent if found that the
actions were willful.
9. No client, model management company, or model management group
shall be permitted to retaliate against a model for exercising any of
such model's rights under this article, including the right to raise
complaints with the client, model management company, model management
group, commissioner, or attorney general. Any violation of this section
shall be subject to enforcement in the same manner as prescribed in
section two hundred fifteen of this chapter.
Other legal requirements. Nothing in this article shall
diminish the rights, privileges, wages, working conditions or remedies
of any employee under any applicable collective bargaining agreement.
ARTICLE 37 Trapped At Work Act
* § 1050. Definitions. For purposes of this article:
1. "Employer" means any person, corporation, limited liability
company, or association employing any individual in any occupation,
industry, trade, business or service including the state and its
political subdivisions.
2. "Employee" means any person employed for hire by an employer in any
employment.
3. "Employment promissory note" means any instrument, agreement, or
contract provision that requires an employee to pay the employer, or the
employer's agent or assignee, a sum of money if the employee's
employment relationship with a specific employer terminates before the
passage of a stated period of time.
4. "Transferable credential" shall mean any degree, diploma, license,
certificate, or documented evidence of skill proficiency or course
completion that is widely recognized by employers in the relevant
industry as a qualification for employment, independent of the
employer's specific business practices, or that provides skills or
qualifications that demonstrably enhance the employee's employability
with other employers in the relevant industry. Notwithstanding the
foregoing, a "transferable credential" shall not include:
(a) Employer-specific or non-transferable training. (i) Instruction
regarding the employer's proprietary processes, proprietary systems,
internal policies, proprietary software, or proprietary equipment unique
to the employer, or (ii) instruction that does not qualify the employee
for a new occupational title, classification, or industry-recognized
credential and instead consists of skillful variations of general
processes known to the relevant trade or industry.
(b) Mandated safety and compliance training. Any training required by
federal, state, or local law to maintain workplace safety, including but
not limited to OSHA certifications, sexual harassment prevention, or
diversity training.
* NB Effective December 19, 2026
* § 1051. Scope. The rights and remedies provided pursuant to this
article shall not supersede any other rights and remedies provided by
statute or common law.
* NB Effective December 19, 2026
* § 1052. Prohibiting the use of employment promissory notes and other
similar provisions. 1. No employer may require, as a condition of
employment, any employee or prospective employee to execute an
employment promissory note. The execution of an employment promissory
note as a condition of employment is unconscionable, against public
policy, and unenforceable, and any such note shall be null and void. If
any such note is part of a larger agreement, the invalidity of such note
shall not affect the other provisions of such agreement.
2. Nothing in this section shall prohibit or render void or
unenforceable any agreement between an employee and an employer that:
(a) requires the employee to reimburse the employer for the cost of
tuition, fees, and required educational materials for a transferable
credential that meets all of the following requirements:
(i) The agreement is set forth in a written contract that is offered
separately from any contract for employment.
(ii) The agreement does not require the employee to obtain the
transferable credential as a condition of employment.
(iii) The agreement specifies the repayment amount before the employee
agrees to the contract, and the repayment amount does not exceed the
cost to the employer of the tuition, fees, and required educational
materials for the transferable credential received by the employee.
(iv) The agreement provides for a prorated repayment amount during any
required employment period that is proportional to the total repayment
amount and the length of the required employment period and does not
require an accelerated payment schedule if the employee separates from
the employment.
(v) The agreement does not require repayment to the employer by the
employee if the employee is terminated, except if the employee is
terminated for misconduct.
(b) requires the employee to pay the employer for any property the
employer has sold or leased to the employee, as long as such sale or
lease was voluntary.
(c) requires the employee to repay a financial bonus, relocation
assistance, or other non-educational incentive or other payment or
benefit that is not tied to specific job performance, unless the
employee was terminated for any reason other than misconduct or the
duties or requirements of the job were misrepresented to the employee.
(d) requires educational personnel to comply with any terms or
conditions of sabbatical leaves granted by their employers; or
(e) is entered into as part of a program agreed to by the employer and
its employees' collective bargaining representative.
* NB Effective December 19, 2026
* § 1053. Enforcement. 1. Notwithstanding any other provision of law,
an employee who is sued by an employer seeking to enforce the provisions
of a promissory note made null and void by this article shall be able to
recover attorney's fees upon a successful defense.
2. An employee or prospective employee who is aggrieved by a violation
of this article may file a complaint with the commissioner. Any employer
determined by the commissioner to have violated this article shall be
fined by the commissioner not less than one thousand dollars and not
more than five thousand dollars for each violation. In assessing the
amount of the penalty, the commissioner shall give due consideration to
the size of the employer's business, the good faith basis of the
employer to believe that its conduct was in compliance with the law, the
gravity of the violation, and the history of previous violations. Each
employee or prospective employee whom an employer required to execute an
employment promissory note or against whom an employer seeks to enforce
such a note shall constitute a separate violation of this article.
* NB Effective December 19, 2026
* § 1054. Rules. The commissioner may promulgate rules and regulations
necessary to carry out the provisions of this article.
* NB Effective December 19, 2026
* § 1055. Savings clause. If any portion of this article or the
application thereof to any person, occupation or circumstance is held
invalid, the remainder of the article and the application of such
provision to other persons, employees, occupations, or circumstances
shall not be affected thereby.
* NB Effective December 19, 2026
ARTICLE 40 When to Take Effect
When to take effect. This act shall take effect immediately.