S T A T E O F N E W Y O R K
________________________________________________________________________
6266--D
2019-2020 Regular Sessions
I N S E N A T E
May 31, 2019
___________
Introduced by Sens. BIAGGI, ADDABBO, BAILEY, BENJAMIN, BROOKS, CARLUCCI,
COMRIE, GAUGHRAN, GIANARIS, GOUNARDES, HARCKHAM, HOYLMAN, JACKSON,
KAMINSKY, KAPLAN, KAVANAGH, KENNEDY, LIU, MARTINEZ, MAYER, METZGER,
MYRIE, PARKER, PERSAUD, RAMOS, RIVERA, SALAZAR, SANDERS, SAVINO,
SEPULVEDA, SERRANO, SKOUFIS, STAVISKY, THOMAS -- read twice and
ordered printed, and when printed to be committed to the Committee on
Labor -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- committee discharged,
bill amended, ordered reprinted as amended and recommitted to said
committee -- recommitted to the Committee on Labor in accordance with
Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the labor law, in relation to enacting the "healthy
terminals act"
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. This act shall be known and may be cited as the "healthy
terminals act".
§ 2. The article heading of article 9 of the labor law, as added by
chapter 777 of the laws of 1971, is amended to read as follows:
PREVAILING WAGE FOR BUILDING SERVICE EMPLOYEES AND COVERED AIRPORT
WORKERS
§ 3. Subdivisions 1, 4 and 8 of section 230 of the labor law, subdivi-
sion 1 as amended by chapter 542 of the laws of 1984, subdivision 4 as
amended by chapter 678 of the laws of 2007, and subdivision 8 as added
by chapter 777 of the laws of 1971, are amended and four new subdivi-
sions 1-a, 15, 16 and 17 are added to read as follows:
1. "Building service employee" or "SERVICE employee" means any person
performing work in connection with the care or maintenance of an exist-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13042-11-0
S. 6266--D 2
ing building, or in connection with the transportation of office furni-
ture 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 "SERVICE employee" includes, but is not
limited, to, watchman, guard, doorman, building cleaner, porter, handy-
man, 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, techni-
cian and related occupations.
"Building service employee" or "SERVICE employee" also does not
include any employee to whom the provisions of articles eight and
eight-a of this chapter are applicable.
1-A. "EMPLOYEE" MEANS A BUILDING SERVICE EMPLOYEE OR A COVERED AIRPORT
WORKER.
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. "CONTRACTOR" SHALL ALSO
INCLUDE ANY COVERED AIRPORT EMPLOYER AS SUCH TERM IS DEFINED IN THIS
SECTION.
8. "Fiscal officer" means the industrial commissioner, except for
building service work performed by or on behalf of a city, OR WORK
INVOLVING THE EMPLOYMENT OF COVERED AIRPORT WORKERS AT A COVERED AIRPORT
LOCATION LOCATED IN A CITY WITH A POPULATION OF ONE MILLION OR MORE, in
which case "fiscal officer" means the comptroller or other analogous
officer of such city.
15. "COVERED AIRPORT LOCATION" MEANS ANY AIRPORT OPERATING UNDER THE
JURISDICTION OF THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY WITHIN THE
STATE.
16. "COVERED AIRPORT WORKER" MEANS ANY PERSON EMPLOYED BY A COVERED
AIRPORT EMPLOYER TO PERFORM WORK AT A COVERED AIRPORT LOCATION PROVIDED
AT LEAST ONE-HALF OF THE EMPLOYEE'S TIME DURING ANY WORKWEEK IS
PERFORMED AT A COVERED AIRPORT LOCATION. "COVERED AIRPORT WORKER" SHALL
NOT INCLUDE ANY PERSON EMPLOYED IN AN EXECUTIVE, ADMINISTRATIVE, OR
PROFESSIONAL CAPACITY AS DEFINED IN 29 U.S.C. 213 (A)(1). "COVERED
AIRPORT WORKER" DOES NOT INCLUDE ANY EMPLOYEE TO WHOM THE PROVISIONS OF
ARTICLE EIGHT OR EIGHT-A OF THIS CHAPTER ARE APPLICABLE.
17. "COVERED AIRPORT EMPLOYER" MEANS ANY PERSON, CORPORATION, LIMITED
LIABILITY COMPANY, OR ASSOCIATION EMPLOYING ANY COVERED AIRPORT WORKER
IN AN OCCUPATION, INDUSTRY, TRADE, BUSINESS OR SERVICE. THE TERM
"COVERED AIRPORT EMPLOYER" SHALL NOT INCLUDE A PUBLIC AGENCY.
§ 4. The labor law is amended by adding a new section 231-a to read as
follows:
§ 231-A. PREVAILING WAGE FOR COVERED AIRPORT WORKERS. 1. NOTWITHSTAND-
ING ANY OTHER PROVISION OF LAW, RULE, OR REGULATION TO THE CONTRARY, AS
USED IN THIS SECTION, THE TERM "WAGE" SHALL MEAN: (A) BASIC HOURLY CASH
RATE OF PAY; AND (B) SUPPLEMENTS. THE TERM "SUPPLEMENTS" SHALL MEAN
FRINGE BENEFITS INCLUDING MEDICAL OR HOSPITAL CARE, PENSIONS ON RETIRE-
MENT OR DEATH, COMPENSATION FOR INJURIES OR ILLNESS RESULTING FROM OCCU-
PATIONAL ACTIVITY, OR INSURANCE TO PROVIDE ANY OF THE FOREGOING, UNEM-
PLOYMENT BENEFITS, LIFE INSURANCE, DISABILITY AND SICKNESS INSURANCE,
ACCIDENT INSURANCE, AND OTHER BONA FIDE FRINGE BENEFITS NOT OTHERWISE
S. 6266--D 3
REQUIRED BY FEDERAL, STATE OR LOCAL LAW TO BE PROVIDED BY A COVERED
AIRPORT EMPLOYER.
2. NOT EARLIER THAN SEPTEMBER FIRST, TWO THOUSAND TWENTY-ONE, EVERY
COVERED AIRPORT EMPLOYER SHALL PAY A COVERED AIRPORT WORKER WORKING AT A
COVERED AIRPORT LOCATION A WAGE OF NOT LESS THAN THE PREVAILING WAGE IN
THE LOCALITY FOR THE CRAFT, TRADE, OR OCCUPATION OF SUCH COVERED AIRPORT
WORKER.
3. THE OBLIGATION OF A COVERED AIRPORT EMPLOYER 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.
4. NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW, RULE, OR REGULATION TO
THE CONTRARY, FOR THE PURPOSES OF THIS SECTION "PREVAILING WAGE" SHALL
MEAN THE WAGE DETERMINED BY THE FISCAL OFFICER TO BE PREVAILING FOR THE
VARIOUS CLASSES OF COVERED AIRPORT WORKERS IN THE LOCALITY; PROVIDED,
HOWEVER, THAT IN NO EVENT SHALL THE PREVAILING WAGE APPLICABLE TO A
COVERED AIRPORT WORKER ON AND AFTER SEPTEMBER FIRST, TWO THOUSAND TWEN-
TY-ONE AND EVERY YEAR THEREAFTER BE LESS THAN THE FOLLOWING: (A) ANY
OTHERWISE APPLICABLE MINIMUM WAGE RATE ESTABLISHED THROUGH A POLICY OF
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY; AND
(B) AN AMOUNT OF WAGES OR SUPPLEMENTS EQUAL TO THE RATE FOR HEALTH AND
WELFARE FOR ALL OCCUPATIONS, DESIGNATED BY THE FISCAL OFFICER 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
LOCATED AND IN EFFECT ON THE DATE OF THE DESIGNATION BY THE FISCAL OFFI-
CER.
5. ON OR BEFORE SEPTEMBER FIRST, TWO THOUSAND TWENTY-ONE AND EACH
SUBSEQUENT SEPTEMBER FIRST, THE FISCAL OFFICER SHALL DESIGNATE THE WAGE
AND SUPPLEMENTAL BENEFITS RATE REQUIRED UNDER THIS SECTION BY CLASSI-
FICATION AND REGION IN WHICH EACH COVERED AIRPORT IS LOCATED. THE FISCAL
OFFICER SHALL PUBLICLY POST SUCH DESIGNATED WAGE RATE.
6. NOTHING IN THIS ARTICLE SHALL BE DEEMED TO ALTER OR LIMIT ANY
EMPLOYER'S OBLIGATION TO PAY ANY OTHERWISE APPLICABLE PREVAILING WAGE
UNDER ANY OTHER PROVISION OF THIS ARTICLE OR ARTICLE EIGHT OF THIS CHAP-
TER.
§ 5. The section heading of section 231 of the labor law, as added by
chapter 777 of the laws of 1971, is amended to read as follows:
Prevailing wage FOR BUILDING SERVICE EMPLOYEES.
§ 6. Subdivisions 1 and 2 of section 233 of the labor law, as added by
chapter 777 of the laws of 1971, are amended to read as follows:
1. In all cases where service work is being performed pursuant to a
contract therefor, OR WHERE WORK IS BEING PERFORMED PURSUANT TO A
CONTRACT INVOLVING THE EMPLOYMENT OF COVERED AIRPORT WORKERS, 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] EMPLOYEES 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
S. 6266--D 4
payments are made, a record of all net payments made thereunder, and a
list of all persons for whom such payments are made.
§ 7. Paragraphs (a) and (c) of subdivision 1 of section 234 of the
labor law, as added by chapter 777 of the laws of 1971, are amended and
a new paragraph (e-1) is added to read as follows:
(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 OR WORK INVOLVING THE EMPLOYMENT OF COVERED
AIRPORT WORKERS; 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;
(c) to examine the books, documents and records pertaining to the
wages paid to, and the hours of work performed by, [service] employees;
(E-1) TO MAKE A CLASSIFICATION BY CRAFT, TRADE OR OTHER GENERALLY
RECOGNIZED OCCUPATIONAL CATEGORY OF THE COVERED AIRPORT WORKERS AND TO
DETERMINE WHETHER SUCH WORK HAS BEEN PERFORMED BY THE EMPLOYEES IN SUCH
CLASSIFICATION;
§ 8. Subdivisions 1 and 3 of section 235 of the labor law, as added by
chapter 777 of the laws of 1971, are amended to read as follows:
1. Whenever the fiscal officer has reason to believe that [a service]
AN 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] AN 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.
3. If, despite the requirements of law, the contract for the service
work OR WORK INVOLVING THE EMPLOYMENT OF COVERED AIRPORT WORKERS 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.
§ 9. Section 236 of the labor law, as added by chapter 777 of the laws
of 1971, is amended to read as follows:
§ 236. Failure to protest underpayments. Notwithstanding any incon-
sistent provision of this chapter or of any other general, special or
local law, ordinance, charter or administrative code, [a service] AN
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.
§ 10. Subdivisions 1 and 4 of section 237 of the labor law, as amended
by chapter 698 of the laws of 1988, are amended to read as follows:
1. Subcontractors engaged for service work, OR FOR WORK INVOLVING THE
EMPLOYMENT OF COVERED AIRPORT WORKERS, by a contractor or its subcon-
tractor shall, upon receipt from the contractor or its subcontractor of
the schedule of wages and supplements specified in the contract, provide
S. 6266--D 5
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, PROVIDED, HOWEVER, THAT IN THE CASE OF CONTRACTS
FOR WORK INVOLVING THE EMPLOYMENT OF COVERED AIRPORT WORKERS, SUCH VERI-
FIED STATEMENT SHALL BE SUBJECT TO INSPECTION UPON REQUEST OF THE FISCAL
OFFICER. 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.
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 subcon-
tractor 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 hereinbe-
fore 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.
§ 11. Subdivision 2 of section 238 of the labor law, as added by chap-
ter 777 of the laws of 1971, is amended to read as follows:
2. When a contract for service work OR WORK INVOLVING THE EMPLOYMENT
OF COVERED AIRPORT WORKERS 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 contrac-
tor 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.
§ 12. Section 239 of the labor law, as added by chapter 777 of the
laws of 1971, subdivisions 1, 2, and 3 as amended by chapter 770 of the
laws of 1986, is amended to read as follows:
S. 6266--D 6
§ 239. Provisions in contracts prohibiting discrimination on account
of race, creed, color, national origin, age or sex. Every contract for
service work OR WORK INVOLVING THE EMPLOYMENT OF COVERED AIRPORT WORKERS
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 avail-
able 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 contrac-
tor by the public agency under the contract FOR SERVICE WORK 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 FOR SERVICE WORK 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.
§ 13. Section 239-a of the labor law, as added by chapter 777 of the
laws of 1971, is amended to read as follows:
§ 239-a. Enforcement of article. 1. 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 respon-
sible 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.
2. IF THE FISCAL OFFICER, AS DEFINED HEREIN, FINDS THAT ANY CONTRACTOR
ON WORK INVOLVING THE EMPLOYMENT OF COVERED AIRPORT WORKERS FAILS TO
COMPLY WITH OR EVADES THE PROVISIONS OF THIS ARTICLE, IT SHALL BE THE
DUTY OF THE FISCAL OFFICER TO ENFORCE THE PROVISIONS OF THIS ARTICLE.
§ 14. 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.
§ 15. This act shall take effect on January 1, 2021. Effective imme-
diately, the addition, amendment and/or repeal of any rule or regulation
necessary for the implementation of this act on its effective date are
authorized to be made and completed on or before such effective date.
