S T A T E O F N E W Y O R K
________________________________________________________________________
2766--B
Cal. No. 1110
2021-2022 Regular Sessions
I N S E N A T E
January 25, 2021
___________
Introduced by Sens. RAMOS, ADDABBO, BAILEY, BENJAMIN, BIAGGI, BRISPORT,
BROOKS, COMRIE, GAUGHRAN, GOUNARDES, HINCHEY, HOYLMAN, JACKSON, LIU,
MANNION, MATTERA, MAY, MAYER, MYRIE, PARKER, REICHLIN-MELNICK, RIVERA,
RYAN, 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 commit-
tee -- reported favorably from said committee, ordered to first and
second report, ordered to a third reading, amended and ordered
reprinted, retaining its place in the order of third reading
AN ACT to amend the labor law and the general business law, in relation
to actions for non-payment of wages
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The labor law is amended by adding a new section 198-e to
read as follows:
§ 198-E. CONSTRUCTION INDUSTRY WAGE THEFT. 1. A CONTRACTOR MAKING OR
TAKING A CONSTRUCTION CONTRACT SHALL ASSUME LIABILITY FOR ANY DEBT
RESULTING FROM AN ACTION UNDER SECTION ONE HUNDRED NINETY-EIGHT OF THIS
ARTICLE, OWED TO A WAGE CLAIMANT OR THIRD PARTY ON THE WAGE CLAIMANT'S
BEHALF, INCURRED BY A SUBCONTRACTOR AT ANY TIER ACTING UNDER, BY, OR FOR
THE CONTRACTOR OR ITS SUBCONTRACTORS FOR THE WAGE CLAIMANT'S PERFORMANCE
OF LABOR.
2. NO AGREEMENT OR RELEASE BY AN EMPLOYEE OR SUBCONTRACTOR TO WAIVE
LIABILITY ASSIGNED TO 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.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04456-07-1
S. 2766--B 2
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 WAGE CLAIM
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 EMPLOY-
EES 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 SUBCONTRAC-
TOR 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 DIMIN-
ISH 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 DEMOLI-
TION OF ANY BUILDING, STRUCTURE OR IMPROVEMENT, OR RELATING TO THE EXCA-
VATION 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.
S. 2766--B 3
9. ANY LIABILITY ASSIGNED TO A CONTRACTOR PURSUANT TO THE PROVISIONS
OF THIS SECTION SHALL BE APPLICABLE FOR ANY CLAIMS OCCURRING NO LATER
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. 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. 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.
§ 2. The general business law is amended by adding a new section 756-f
to read as follows:
§ 756-F. WAGE THEFT PREVENTION AND ENFORCEMENT. 1. UPON REQUEST OF A
CONTRACTOR, OR A CONTRACTOR'S SUBCONTRACTOR, TO ANY SUBCONTRACTOR WHICH
PERFORMS ANY PORTION OF WORK WITHIN THE SCOPE OF THE CONTRACTOR'S
CONSTRUCTION CONTRACT WITH AN OWNER, SUCH SUBCONTRACTOR SHALL PROVIDE
CERTIFIED PAYROLL RECORDS WHICH, AT A MINIMUM, CONTAIN ALL LAWFULLY
REQUIRED INFORMATION REQUIRED FOR ALL EMPLOYEES PROVIDING LABOR ON THE
PROJECT. SUCH PAYROLL RECORDS SHALL CONTAIN SUFFICIENT INFORMATION TO
APPRISE THE CONTRACTOR OR SUBCONTRACTOR OF SUCH SUBCONTRACTOR'S PAYMENT
STATUS IN PAYING WAGES AND MAKING ANY APPLICABLE FRINGE OR OTHER BENEFIT
PAYMENTS OR CONTRIBUTIONS TO A THIRD PARTY ON ITS EMPLOYEE'S BEHALF.
PAYROLL RECORDS SHALL BE MARKED OR REDACTED TO AN EXTENT ONLY TO PREVENT
DISCLOSURE OF AN INDIVIDUAL'S FULL SOCIAL SECURITY NUMBER BUT SHALL
PROVIDE THE LAST FOUR DIGITS OF THE SOCIAL SECURITY NUMBER.
2. UPON REQUEST OF A CONTRACTOR, OR A CONTRACTOR'S SUBCONTRACTOR, TO
ANY SUBCONTRACTOR WHICH PERFORMS ANY PORTION OF WORK WITHIN THE SCOPE OF
THE CONTRACTOR'S CONSTRUCTION CONTRACT WITH AN OWNER, SUCH SUBCONTRACTOR
SHALL PROVIDE: (A) THE NAMES OF ALL WORKERS OF SUCH SUBCONTRACTOR ON THE
PROJECT, INCLUDING THE NAMES OF ALL THOSE DESIGNATED AS INDEPENDENT
CONTRACTORS; (B) WHEN APPLICABLE, THE NAME OF THE CONTRACTOR'S SUBCON-
TRACTOR WITH WHOM SUCH SUBCONTRACTOR IS UNDER CONTRACT; (C) THE ANTIC-
IPATED CONTRACT START DATE; (D) THE SCHEDULED DURATION OF WORK; (E) WHEN
APPLICABLE, LOCAL UNIONS WITH WHOM SUCH SUBCONTRACTOR IS A SIGNATORY
CONTRACTOR; AND (F) THE NAME, ADDRESS AND PHONE NUMBER OF A CONTACT FOR
SUCH SUBCONTRACTOR.
3. FAILURE TO TIMELY COMPLY WITH A REQUEST FOR INFORMATION AS PROVIDED
HEREIN SHALL BE A BASIS FOR A CONTRACTOR TO WITHHOLD PAYMENTS OWED TO A
SUBCONTRACTOR AT ANY TIER.
4. UNLESS OTHERWISE REQUIRED BY LAW, A CONTRACTOR OR SUBCONTRACTOR
SHALL NOT COMMUNICATE AN INDIVIDUAL'S PERSONAL IDENTIFYING INFORMATION
TO THE GENERAL PUBLIC. FOR PURPOSES OF THIS SECTION, "PERSONAL IDENTIFY-
ING INFORMATION" SHALL HAVE THE SAME MEANING AS DEFINED IN PARAGRAPH (D)
OF SUBDIVISION ONE OF SECTION TWO HUNDRED THREE-D OF THE LABOR LAW.
5. FOR THE PURPOSES OF THIS SECTION, "CONTRACTOR" MEANS ANY PERSON,
FIRM, PARTNERSHIP, CORPORATION, ASSOCIATION, COMPANY, ORGANIZATION OR
S. 2766--B 4
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.
6. FOR THE PURPOSES OF THIS SECTION, "OWNER" MEANS ANY PERSON, FIRM,
PARTNERSHIP, CORPORATION, COMPANY, ASSOCIATION OR OTHER ORGANIZATION OR
OTHER ENTITY, OR A COMBINATION OF ANY THEREOF, (WITH AN OWNERSHIP INTER-
EST, 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.
7. FOR THE PURPOSES OF THIS SECTION, "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, INCLUD-
ING WHERE THE SUBCONTRACTOR HAS NO DIRECT PRIVITY OF CONTRACT WITH THE
CONTRACTOR.
§ 3. Severability. If any provision of this act, or any application of
any provision of this act, is held to be invalid, that shall not affect
the validity or effectiveness of any other provision of this act, or of
any other application of any provision of this act, which can be given
effect without that provision or application; and to that end, the
provisions and applications of this act are severable.
§ 4. This act shall take effect on the one hundred twentieth day after
it shall have become a law and shall apply to construction contracts
entered into, renewed, modified or amended on or after such effective
date.
