S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5475
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                               March 6, 2023
                                ___________
 
 Introduced  by Sens. JACKSON, HINCHEY -- read twice and ordered printed,
   and when printed to be committed to the Committee on Labor
 
 AN ACT to amend the labor law, in relation to inclusion of certain  off-
   site  custom fabrication as public work for the purposes of payment of
   prevailing wage

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Legislative findings and intent. The legislature finds and
 declares that the prevailing wage law was established  to  provide  fair
 and  equitable  working conditions, wages and supplementary benefits for
 persons employed on public works construction projects.
   The legislature further finds and  declares  that  there  are  growing
 number  of  instances where materials are fabricated off the public work
 job site either to meet the unique specifications of the project subject
 to a public work contract or for the contractor's convenience.
   The legislature further finds and declares that in many instances  the
 prevailing  wage is not paid to persons involved in off-site fabrication
 of materials which are used specifically for public works projects.
   It is the intent of the legislature that construction and  fabrication
 done  off  the  public  work  site  for specific use only in public work
 projects be compensated at the prevailing wage rate.
   § 2. Subdivision 3 of section 220 of  the  labor  law  is  amended  by
 adding a new paragraph (f) to read as follows:
   (F) FOR THE PURPOSES OF THIS SUBDIVISION CONTRACTORS OR SUBCONTRACTORS
 ENGAGED  IN CUSTOM FABRICATION SHALL NOT BE REGARDED AS MATERIAL SUPPLI-
 ERS. FOR THE PURPOSES OF THIS SUBDIVISION, A LEGAL DAY'S WORK FOR  WHICH
 THE  PREVAILING  RATE  OF  WAGES  SHALL BE PAID TO LABORERS, WORKERS AND
 MECHANICS SHALL INCLUDE CUSTOM FABRICATION WHETHER  OR  NOT  THE  CUSTOM
 FABRICATION  IS DONE ON THE PUBLIC WORK SITE. IT SHALL BE A CONDITION OF
 THE CONTRACT CONCERNING SUCH OFF-SITE CUSTOM FABRICATION WORK  THAT  THE
 CONTRACTOR  OR  EMPLOYER AWARDED THE PUBLIC WORK CONTRACT SHALL COVENANT
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01720-01-3
              

 S. 5475                             2
 
 TO PAY THE ON-SITE PREVAILING WAGE OF THE PUBLIC  WORK  PROJECT.    EACH
 CONTRACTOR  WHO  EMPLOYS WORKERS OFF-SITE ON A PUBLIC WORK PROJECT SHALL
 MAINTAIN CERTIFIED PAYROLLS AND PROVIDE  SUCH  PAYROLLS,  WITH  ORIGINAL
 CERTIFICATIONS,  TO  THE  CONTRACTING  AGENCY AT LEAST ONCE EVERY THIRTY
 DAYS.  FOR THE PURPOSES OF THIS  SUBDIVISION  THE  TERM  "CUSTOM  FABRI-
 CATION" SHALL INCLUDE, BUT NOT BE LIMITED TO, THE FABRICATION OF EXTERI-
 OR  OR  INTERIOR WALL PANEL SYSTEMS, THE FABRICATION OF WOODWORK, CASES,
 CABINETS OR COUNTERS AND THE FABRICATION OF ELECTRICAL, PLUMBING,  HEAT-
 ING,  COOLING, VENTILATION OR EXHAUST DUCT SYSTEMS, AND MECHANICAL INSU-
 LATION SOLELY AND SPECIFICALLY DESIGNED AND ENGINEERED FOR  INSTALLATION
 IN  THE  CONSTRUCTION,  REPAIR  OR RENOVATION OF A BUILDING WHICH IS THE
 SUBJECT OF A CONTRACT TO WHICH THE STATE,  A  MUNICIPAL  CORPORATION,  A
 PUBLIC  BENEFIT CORPORATION OR A COMMISSION APPOINTED PURSUANT TO LAW IS
 A PARTY.
   § 3. This act shall take effect on the sixtieth  day  after  it  shall
 have become a law and shall apply only to those contracts put out to bid
 on or after such effective date.

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5475--B
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                               March 6, 2023
                                ___________
 
 Introduced  by  Sens. JACKSON, ADDABBO, CHU, COMRIE, FERNANDEZ, HINCHEY,
   HOYLMAN-SIGAL, KAVANAGH, KRUEGER,  MATTERA,  MAYER,  PALUMBO,  PARKER,
   RAMOS,  SKOUFIS, STAVISKY, WEIK -- 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 -- recommitted to the Committee on Labor in accord-
   ance with Senate Rule 6,  sec.  8  --  reported  favorably  from  said
   committee  and  committed  to  the  Committee  on Finance -- committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee
 
 AN ACT to amend the labor law, in relation to inclusion of certain  off-
   site  custom fabrication as public work for the purposes of payment of
   prevailing wage; and providing for the repeal  of  certain  provisions
   upon expiration thereof
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Legislative findings and intent. The legislature finds  and
 declares  that  the  prevailing wage law was established to provide fair
 and equitable working conditions, wages and supplementary  benefits  for
 persons employed on public works construction projects.
   The  legislature  further  finds  and  declares that there are growing
 number of instances where custom fabricated materials are fabricated off
 the public work job site either to meet the unique specifications of the
 project subject to a  public  work  contract  or  for  the  contractor's
 convenience  or to evade the wage requirements imposed by the prevailing
 wage law.
   The legislature further finds and declares that in many instances  the
 prevailing  wage is not paid to persons involved in off-site fabrication
 of materials which are used specifically for public  works  projects  to
 the detriment of the workers at the site and the local economy where the
 public work is situated.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01720-04-4
              

 S. 5475--B                          2
 
   The  legislature  further  finds and declares that, in effect, various
 custom fabricated materials on local public works construction  projects
 are being entirely outsourced to workers at a location or locations away
 from the project site or in foreign jurisdictions, thereby intentionally
 evading the payment of the prevailing wage and benefit package by elimi-
 nating  the  employment  of  workers  at  the site of the project to the
 detriment of those workers and the local economy.
   It is the intent of the legislature that construction and  fabrication
 done  off  the  public  work  site  for specific use only in public work
 projects be compensated at the prevailing wage rate.
   § 2. Subdivision 3 of section 220 of  the  labor  law  is  amended  by
 adding a new paragraph (f) to read as follows:
   (F)  (I)  FOR  THE PURPOSES OF THIS SUBDIVISION CONTRACTORS OR SUBCON-
 TRACTORS 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
 OUTSIDE  THE STATE.   IT SHALL BE A CONDITION OF THE CONTRACT CONCERNING
 ALL SUCH CUSTOM FABRICATION WORK THAT 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 COVENANT TO PAY THE ON-SITE PREVAILING  WAGE
 REQUIRED  FOR  WORKERS  AT  THE SITE OF THE PUBLIC WORK PROJECT TO THOSE
 WORKERS PERFORMING THE CUSTOM FABRICATION WHERE A  CONTRACT  FOR  CUSTOM
 FABRICATION  EXCEEDS TWO HUNDRED FIFTY THOUSAND DOLLARS OR FOR CONTRACTS
 WHERE THE CUMULATIVE ANNUAL TOTAL OF CONTRACTS PERFORMED BY  THE  CUSTOM
 FABRICATOR  HAS  EXCEEDED  FIVE  HUNDRED  THOUSAND DOLLARS. IN ADDITION,
 CUSTOM FABRICATORS WHO CHOOSE TO PERFORM A PUBLIC WORKS CONTRACT EXCEED-
 ING TWO HUNDRED FIFTY THOUSAND DOLLARS OR WHO EXCEED FIVE HUNDRED  THOU-
 SAND  DOLLARS  IN PUBLIC WORKS CONTRACTS IN TOTAL IN A SINGLE YEAR SHALL
 BE REQUIRED TO PAY THE ON-SITE PREVAILING WAGE TO THOSE WORKERS PERFORM-
 ING CUSTOM FABRICATION FOR SUBSEQUENT PUBLIC WORKS CONTRACTS, REGARDLESS
 OF THE AMOUNT, THEREAFTER FOR AT LEAST ONE YEAR AND SHALL REGISTER  WITH
 THE  DEPARTMENT  UNDER  SECTION TWO HUNDRED TWENTY-I OF THIS ARTICLE AND
 REMAIN REGISTERED FOR AT LEAST ONE YEAR IN ORDER TO QUALIFY  TO  PERFORM
 FUTURE  CUSTOM  FABRICATION  WITH REGARD TO PUBLIC WORKS PROJECTS.  EACH
 CONTRACTOR OR SUBCONTRACTOR WHO EMPLOYS WORKERS OFF-SITE FOR THE  CUSTOM
 FABRICATION  WORK RELATED TO A PUBLIC WORK PROJECT SHALL MAINTAIN CERTI-
 FIED PAYROLLS FOR THOSE WORKERS AND PROVIDE SUCH PAYROLLS, WITH ORIGINAL
 CERTIFICATIONS, TO THE DEPARTMENT AT LEAST ONCE EVERY THIRTY DAYS.   FOR
 THE  PURPOSES  OF  THIS  SUBDIVISION THE TERM "CUSTOM FABRICATION" SHALL
 INCLUDE, BUT NOT BE LIMITED TO, THE FABRICATION OF EXTERIOR OR  INTERIOR
 WALL  PANEL  SYSTEMS,  THE  FABRICATION  OF WOODWORK, CASES, CABINETS OR
 COUNTERS AND THE FABRICATION OF ELECTRICAL, PLUMBING, HEATING,  COOLING,
 VENTILATION  OR EXHAUST DUCT SYSTEMS INCLUDING THE DRAFTING OF TECHNICAL
 DRAWINGS AND PLANS, AND MECHANICAL INSULATION  SOLELY  AND  SPECIFICALLY
 DESIGNED  AND ENGINEERED FOR INSTALLATION IN THE CONSTRUCTION, REPAIR OR
 RENOVATION OF A BUILDING WHICH IS THE SUBJECT OF A CONTRACT TO WHICH THE
 STATE, A DEPARTMENT OF THE STATE, A BOARD OR OFFICER  IN  THE  STATE,  A
 MUNICIPAL  CORPORATION,  A  PUBLIC  BENEFIT  CORPORATION OR A COMMISSION
 APPOINTED PURSUANT TO LAW IS A PARTY.
   (II) 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
 S. 5475--B                          3
 
 THE FISCAL OFFICER THE INTENTION TO CONTRACT FOR CUSTOM, OFF-SITE FABRI-
 CATION OF ANY MATERIALS ON ALL  CONTRACTS,  REGARDLESS  OF  THE  AMOUNT,
 WHICH  MAY  INCLUDE  THE EMPLOYMENT OF LABORERS, WORKERS OR MECHANICS IN
 THE APPLICATION TO THE FISCAL OFFICER FOR THE APPROVAL OF SUCH CONTRACT.
 THE DEPARTMENT OF JURISDICTION'S REPORT SHALL STATE THE NAME AND ADDRESS
 OF  THE  OFF-SITE, CUSTOM FABRICATOR, IDENTIFY THE CUSTOM MATERIALS THAT
 ARE BEING FABRICATED OFF-SITE AND THE QUANTITY  THEREOF,  THE  ESTIMATED
 AND  ACTUAL  COST OF THE OFF-SITE FABRICATION, INCLUDING THE TRANSPORTA-
 TION OF THE MATERIALS TO THE SITE OF THE WORK AND THE  ESTIMATED  NUMBER
 OF  WORKERS  EMPLOYED TO COMPLETE THE CUSTOM FABRICATION AT THE OFF-SITE
 LOCATION. UPON RECEIPT OF THE DEPARTMENT OF JURISDICTION'S  REPORT,  THE
 FISCAL  OFFICER  SHALL  MAKE AVAILABLE SAID REPORT TO THE PUBLIC THROUGH
 ITS WEBSITE AND, SIMILARLY, MAINTAIN AND PUBLISH ON ITS WEBSITE ALL DATA
 SPECIFIED HEREIN FOR EACH CUSTOM FABRICATOR.
   (III) THE FISCAL OFFICER SHALL PRODUCE AN ANNUAL REPORT ON THE ECONOM-
 IC IMPACT TO THE STATE BUSINESSES AND RESIDENTS DUE TO  OFF-SITE  FABRI-
 CATION.
   §  3.  This  act  shall take effect on the sixtieth day after it shall
 have become a law and shall apply only to those contracts put out to bid
 on or after such effective date; provided,  however,  that  subparagraph
 (i)  of  paragraph (f) of subdivision 3 of section 220 of the labor law,
 as added by section two of this act, shall expire and be deemed repealed
 upon the ruling of a court of competent jurisdiction that  the  require-
 ments  of  such  subparagraph  are  unenforceable on fabricators located
 outside the state; provided, further, that  the  commissioner  of  labor
 shall  notify  the  legislative bill drafting commission upon the occur-
 rence of such a court ruling in order that the commission  may  maintain
 an  accurate  and timely effective data base of the official text of the
 laws of the state  of  New  York  in  furtherance  of  effectuating  the
 provisions  of section 44 of the legislative law and section 70-b of the
 public officers law.