BILL NUMBER:S5695

TITLE OF BILL:  An act to amend the labor law and the general
municipal law, in relation to ensuring consistency with the federal
Davis Bacon Act for calculation of payments for supplements and
reciprocity of debarments

PURPOSE:  Directs the Commissioner of Labor to direct that the proper
payment of supplements shall be calculated by employing the
annualization methodology utilized by the U.S. Department of Labor in
such calculations under the Davis Bacon Act.

SUMMARY OF PROVISIONS:

Section 1 -- Adds a new subdivision 3-f to Section 220 of the Labor
Law, dealing with contracts involving public work, to prevent
employers from using public work as a disproportionate or exclusive
source of funding for benefits that are in fact continuous in nature
and are part of the regular compensation for all employee work whether
public or private, the Commissioner shall direct that the proper
payment of supplements be calculated using an annualization
methodology. In order to protect workers and ensure consistency of
application, the Commissioner shall employ the annualization
methodology utilized by the U.S. Department of Labor in calculations
under the Davis Bacon Act of 1931 40 USC 276 et seq.

              

Section 2 - Adds a new subdivision 3 section 220-b of the labor law
that states when a contractor or subcontractor is debarred for
violations of the Davis Bacon Act of 1931 40 USC 3144 and 29 C.F.R
5.12, the contractor or subcontractor and any firm, corporation,
partnership or association in which the person or entity owns or
controls at least fifty-one per centum, shall be ineligible to be
awarded any public works contract with the state, any municipal
corporation, public benefit corporation or public body for a period
not to exceed the period of debarment determined or decided pursuant
to the act. The department must provide written notice to the person
or entity immediately of the ineligibility and provide them the
opportunity to be heard by the department within thirty calendar days
of the written notice.

Section 3 -- Amends section 103 of the general municipal law adding
new subdivision 1-c that states that in determining the lowest bidder,
the officer, board or agency of any political subdivision or any
district charged with awarding of contracts, shall consider w4nether
or not the bidder is debarred pursuant to paragraph b of subdivision
three of section two hundred twenty-b of the labor law in making such
determination of the award.

Section 4 -- Establishes the effective date.

JUSTIFICATION:  The annualization method currently utilized by the
Commissioner of Labor for calculating supplemental benefits which
contractors are required to provide employees who work on private and
public work projects forces contractors to either switch from
providing employees with supplemental benefits (health insurance,
pension, etc.) to cash payments of supplemental benefits or to pay
workers at a higher overall supplement rate which includes time spent


on private projects. In essence, the methodology currently utilized by
the Commissioner extends the reach of the public work law to partially
cover private work as well. The rate for supplements on private work
projects should be determined through forces of the free market
economy, rather than the rates required for public work projects. The
methodology prescribed by the Commissioner of Labor frustrates the
purpose of the prevailing wage law by extending it beyond public work.
The federal methodology for annualization of benefits under the Davis
Bacon Act is fair and does not penalize employers for doing both
public and private work. As such, this legislation would clarify that
the method utilized by the federal government under the Davis Bacon
Act is the method that will be applied in this State.

LEGISLATIVE HISTORY:  S.4018 (2011-12), Held in Labor S.4309/A.2143
(2009-10) Held in Labor A.5704 (2007-08), Held in Labor A.11455
(2006), Referred to Labor

FISCAL IMPLICATIONS: No fiscal implications.

EFFECTIVE DATE:  This act shall take effect on the one hundred
twentieth day after it shall have become a law and shall apply to all
contracts and agreements entered into on and after such date.
Effective immediately, the addition, amendment and/or repeal of any
rule or regulation necessary for implementation of this act on its
effective date is authorized and directed to be made and completed on
or before such effective date.