S T A T E O F N E W Y O R K
________________________________________________________________________
838
2023-2024 Regular Sessions
I N S E N A T E
January 6, 2023
___________
Introduced by Sen. RYAN -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
AN ACT to amend the labor law, in relation to clarifying provisions
related to a registration system for contractors and subcontractors
engaged in public work and covered projects; and to amend a chapter of
the laws of 2022 amending the labor law relating to establishing a
registration system for contractors and subcontractors engaged in
public work and covered projects in order to better enforce existing
labor laws and regulations in the public works industry, as proposed
in legislative bills numbers S. 5994-C and A. 1338-C, in relation to
the effectiveness thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivisions 1, 2, 3, 4, 5 and 6 of section 220-i of the
labor law, as added by a chapter of the laws of 2022 amending the labor
law relating to establishing a registration system for contractors and
subcontractors engaged in public work and covered projects in order to
better enforce existing labor laws and regulations in the public works
industry, as proposed in legislative bills numbers S. 5994-C and A.
1338-C, are amended to read as follows:
1. As used in this section:
a. "Contractor" means any [contractor or subcontractor] ENTITY enter-
ing into a contract to perform construction, demolition, reconstruction,
excavation, rehabilitation, repair, installation, renovation, alter-
ation, or custom fabrication, which is subject to the provisions of this
article.
b. ["Bureau" means the department's bureau of public works] "SUBCON-
TRACTOR" 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.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04023-01-3
S. 838 2
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. [Prior to submitting a bid on a contract for public work or
commencing work on a covered project under private contract] IN ACCORD-
ANCE WITH SUBDIVISION SIX OF THIS SECTION, a contractor OR SUBCONTRACTOR
shall register in writing with the [bureau] 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 enti-
ty.
iii. The name and address of each person with [a financial] AN OWNER-
SHIP 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 [employee] 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 [ten] EIGHT years.
vii. Whether the contractor OR SUBCONTRACTOR has been debarred pursu-
ant to the laws of any other state within the last [ten] EIGHT years.
viii. Whether the contractor OR SUBCONTRACTOR has been finally deter-
mined 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 deter-
mined by the appropriate authority to have violated any laws establish-
ing 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 demonstrat-
ing 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
S. 838 3
[bureau] COMMISSIONER within forty-eight hours of the initial public
request.
3. The contractor OR SUBCONTRACTOR shall pay a non-refundable regis-
tration 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[, following notice and a hearing, the bureau] THE COMMIS-
SIONER 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 documenta-
tion 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 [thirty] NINETY days before the expiration date
of the immediately preceding registration. The commissioner shall
promulgate regulations to determine under what circumstances a contrac-
tor OR SUBCONTRACTOR would be unfit to be registered pursuant to this
section; provided that a contractor OR SUBCONTRACTOR shall not be deter-
mined to be unfit solely because a contractor OR SUBCONTRACTOR was
debarred within the last [ten] EIGHT years, unless such contractor OR
SUBCONTRACTOR is currently debarred or ineligible pursuant to subdivi-
sion 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 notice to a contractor initially determined by the commissioner to
be unfit based upon the registration application shall be in writing,
shall not be conclusory, and shall state the factual basis upon which
the determination is based] 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 SUBCON-
TRACTOR 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 NOTIFI-
CATION, THEN THE NOTIFICATION OF DETERMINATION SHALL BECOME THE FINAL
DETERMINATION OF THE COMMISSIONER. Any documents, reports, or informa-
tion 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 contrac-
tor OR SUBCONTRACTOR who the commissioner determines to be unable to
lawfully adhere to contractual obligations of this article and responsi-
bilities including prevailing wage requirements pursuant to this arti-
cle. 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
S. 838 4
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 SUBCONTRAC-
TOR. 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 [they
and all subcontractors listed in the bid, in addition to any subcontrac-
tors associated with wage and/or fringe benefit payments to employees on
the public work project, are] 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 COMMENC-
ING ANY WORK ON A COVERED PROJECT. Further, each contractor must submit
their certificate of registration [as well as all certificates of regis-
tration for any and all subcontractors for such contract] 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. [For covered projects performed under private contract, the
owner or developer of such project must ensure that any contractor which
it hires, or subcontractor that is hired, to perform work on such
project is registered pursuant to this section.
6.] 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 CONTRAC-
TOR 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 [submits a bid with] ALLOWS a subcontractor TO
COMMENCE WORK ON A COVERED PROJECT that it knows or should have known is
not registered pursuant to subdivision [five] 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 devel-
oper who commences work with a contractor or subcontractor that it knows
or should have known is not registered pursuant to subdivision [five]
SIX of this section shall, after notice and hearing, be subject to a
civil penalty of up to one thousand dollars. A contractor OR SUBCONTRAC-
TOR 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. [Any subcontractor who commences work on any covered project
knowing that it is not registered shall, after notice and hearing, be
subject to a civil penalty of up to one thousand dollars.]
S. 838 5
b. The commissioner may revoke or suspend a registration if a contrac-
tor 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 declara-
tion 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.
§ 2. Subdivisions 7 and 8 of section 220-i of the labor law, as added
by a chapter of the laws of 2022 amending the labor law relating to
establishing a registration system for contractors and subcontractors
engaged in public work and covered projects in order to better enforce
existing labor laws and regulations in the public works industry, as
proposed in legislative bills numbers S. 5994-C and A. 1338-C, are
amended to read as follows:
[7.] 9. The [department] COMMISSIONER shall establish and maintain an
online system to make available all registrations and disclosures
required by this section, EXCEPT FOR ANY PERSONALLY IDENTIFIABLE INFOR-
MATION, INCLUDING HOME ADDRESS AND PERCENTAGES OF OWNERSHIP INTEREST IN
PRIVATELY HELD ENTITIES.
[8.] 10. The [department] COMMISSIONER shall prescribe regulations
necessary to carry out the provisions of this section [within one
hundred eighty days after its effective date].
§ 3. Section 2 of a chapter of the laws of 2022 amending the labor law
relating to establishing a registration system for contractors and
subcontractors engaged in public work and covered projects in order to
better enforce existing labor laws and regulations in the public works
industry, as proposed in legislative bills numbers S. 5994-C and A.
1338-C, is amended to read as follows:
§ 2. (A) This act shall take effect immediately, provided however, (B)
subdivisions one through six of section 220-i of the labor law as added
by section one of this act shall take effect [one year] TWO YEARS after
such date.
§ 4. This act shall take effect immediately; provided however that the
provisions of section two of this act shall take effect on the same date
and in the same manner as subdivision (a) of section 2 of a chapter of
the laws of 2022 amending the labor law relating to establishing a
registration system for contractors and subcontractors engaged in public
work and covered projects in order to better enforce existing labor laws
and regulations in the public works industry, as proposed in legislative
bills numbers S. 5994-C and A. 1338-C, takes effect; provided further
that the provisions of section one of this act shall take effect on the
S. 838 6
same date and in the same manner as subdivision (b) of section 2 of such
chapter of the laws of 2022, takes effect.
