There is a newer version of the New York Consolidated Laws
2006 New York Code - Hours, Wages And Supplements.
§ 220. Hours, wages and supplements. 1. Eight hours shall constitute a
legal day's work for all classes of employees in this state except those
engaged in farm and domestic service unless otherwise provided by law.
2. Each contract to which the state or a public benefit corporation or
a municipal corporation or a commission appointed pursuant to law is a
party and which may involve the employment of laborers, workmen or
mechanics shall contain a stipulation that no laborer, workman or
mechanic in the employ of the contractor, sub-contractor or other person
doing or contracting to do the whole or a part of the work contemplated
by the contract shall be permitted or required to work more than eight
hours in any one calendar day or more than five days in any one week
except in cases of extraordinary emergency including fire, flood or
danger to life or property. No such person shall be so employed more
than eight hours in any day or more than five days in any one week
except in such emergency. Extraordinary emergency within the meaning of
this section shall be deemed to include situations in which sufficient
laborers, workmen and mechanics cannot be employed to carry on public
work expeditiously as a result of such restrictions upon the number of
hours and days of labor and the immediate commencement or prosecution or
completion without undue delay of the public work is necessary in the
judgment of the industrial commissioner for the preservation of the
contract site and for the protection of the life and limb of the persons
using the same. Upon the application of any person interested, the
industrial commissioner shall make a determination as to whether or not
on any public project or on all public projects in any area of this
state, sufficient laborers, workmen and mechanics of any or all
classifications can be employed to carry on work expeditiously if their
labor is restricted to eight hours per day and five days per week, and
in the event that the industrial commissioner determines that there are
not sufficient workmen, laborers and mechanics of any or all
classifications which may be employed to carry on such work
expeditiously if their labor is restricted to eight hours per day and
five days per week, and the immediate commencement or prosecution or
completion without undue delay of the public work is necessary in the
judgment of the industrial commissioner for the preservation of the
contract site and for the protection of the life and limb of the persons
using the same, the industrial commissioner shall grant a dispensation
permitting all laborers, workmen and mechanics, or any classification of
such laborers, workmen and mechanics, to work such additional hours or
days per week on such public project or in such areas the industrial
commissioner shall determine. Whenever such a dispensation is granted,
all work in excess of eight hours per day and five days per week shall
be considered overtime work, and the laborers, workmen and mechanics
performing such work shall be paid a premium wage commensurate with the
premium wages prevailing in the area in which the work is performed. No
such dispensation shall be effective with respect to any public work
unless and until the department of jurisdiction, as defined in this
section, certifies to the industrial commissioner that such public work
is of an important nature and that a delay in carrying it to completion
would result in serious disadvantage to the public. Time lost in any
week because of inclement weather by employees engaged in the
construction, reconstruction and maintenance of highways outside of the
limits of cities and villages may be made up during that week and/or the
succeeding three weeks.
2-a. Any person or corporation contracting with the state or a public
benefit corporation, or a municipal corporation, or a commission
appointed pursuant to law that shall require more than eight hours work
for a day's labor, unless otherwise permitted by law, is guilty of a
misdemeanor, and upon conviction therefor shall be punished by a fine of
not less than five hundred dollars nor more than one thousand dollars
for each offense.
3. The wages to be paid for a legal day's work, as hereinbefore
defined, to laborers, workmen or mechanics upon such public works, shall
be not less than the prevailing rate of wages as hereinafter defined.
Serving laborers, helpers, assistants and apprentices shall not be
classified as common labor and shall be paid not less than the
prevailing rate of wages as hereinafter defined. No employee shall be
deemed to be an apprentice unless he is individually registered in an
apprenticeship program which is duly registered with the commissioner of
labor in conformity with the provisions of article twenty-three of this
chapter. The wages to be paid for a legal day's work, as hereinbefore
defined, to laborers, workmen or mechanics upon any material to be used
upon or in connection therewith, shall be not less than the prevailing
rate for a day's work in the same trade or occupation in the locality
within the state where such public work on, about or in connection with
which such labor is performed in its final or completed form is to be
situated, erected or used. Such contracts shall contain a provision that
each laborer, workman or mechanic, employed by such contractor,
subcontractor or other person about or upon such public work, shall be
paid the wages herein provided.
The supplements, as hereinafter defined, to be provided to laborers,
workmen or mechanics upon such public works, shall be in accordance with
the prevailing practices in the locality, as hereinafter defined.
Serving laborers, helpers, assistants and apprentices shall not be
classified as common labor and shall be provided supplements in
accordance with the prevailing practices as hereinafter defined. No
employee shall be deemed to be an apprentice unless he is individually
registered in an apprenticeship program which is duly registered with
the industrial commissioner in conformity with the provisions of article
twenty-three of this chapter. The supplements, as hereinafter defined,
to be provided to laborers, workmen or mechanics upon any material to be
used upon or in connection therewith, shall be in accordance with the
prevailing practices in the same trade or occupation in the locality
within the state where such public work on, about or in connection with
which such labor is performed in its final or completed form is to be
situated, erected or used. Such contracts shall contain a provision that
each laborer, workman or mechanic, employed by such contractor,
subcontractor or other person about or upon such public work, shall be
provided the supplements as required in this article.
It shall be the duty of the fiscal officer, as defined in this
section, to ascertain and determine the schedules of supplements to be
provided and wages to be paid workmen, laborers and mechanics on such
public work, prior to the time of the advertisement for bids, and such
schedules shall be annexed to and form a part of the specifications for
the work. Such fiscal officer shall file with the department having
jurisdiction such schedules to the time of the commencement of the
advertisement for bids on all public works proposed to be constructed.
The term "contract" as used in this subdivision also shall include
reconstruction and repair of any such public work.
Any person or corporation that wilfully pays or provides after
entering into such contract or a subcontract to perform on any portion
of such contract, less than such stipulated wage scale or supplements as
established by the fiscal officer shall be guilty of a misdemeanor and
upon conviction shall be punished for such first offense by a fine of
five hundred dollars or by imprisonment for not more than thirty days,
or 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 person or
corporation shall be entitled to receive any sum nor shall any officer,
agent or employee of the state, municipal corporation or commission or
board appointed pursuant to law pay the same or authorize its payment
from the funds under his charge or control to any person or corporation
for work done upon any contract, on which the contractor has been
convicted for second offense in violation of the provisions of this
section.
The commissioner shall ensure that all supplements due under this
article shall be paid to or on behalf of an employee. The commissioner
shall require proof that the pension plan for which any supplement has
been paid is qualified as a bona fide plan by the United States internal
revenue service. Acceptable proof shall be shown by submission of a
determination letter issued by the United States internal revenue
service.
3-a. a. It shall be the duty of the department of jurisdiction as
defined in this section to ascertain from the plans and specifications
the classification of workmen, mechanics and laborers to be employed on
such project. Such department shall file with the fiscal officer, as
defined in this section, the classification of workmen, mechanics and
laborers to be employed upon such public works project, together with a
statement of the work to be performed by each such classification. From
such statement it shall be the duty of the fiscal officer to make a
proper classification of such workmen, mechanics and laborers taking
into account whether the work is heavy and highway, building, sewer and
water, tunnel work or residential and to make a determination of the
schedules of wages and supplements to be paid or provided, as the case
may be, therefor. The contractor and every sub-contractor on public
works contracts shall post in a prominent and accessible place on the
site where the work is performed a legible statement of all wage rates
and supplements as specified in the contract to be paid or provided, as
the case may be, for the various classes of mechanics, workingmen, or
laborers employed on the work. Such posted statement shall be written in
plain English and titled, in lettering no smaller than two inches in
height and two inches in width, with the phrase "Prevailing Rate of
Wages". Such posted statement shall be constructed of materials capable
of withstanding adverse weather conditions. The contractor and every
sub-contractor shall keep original payrolls or transcripts thereof,
subscribed and affirmed by him as true under the penalties of perjury,
showing the hours and days worked by each workman, laborer or mechanic,
the occupation at which he worked, the hourly wage rate paid and the
supplements paid or provided, on the site of the work where the
contractor or sub-contractor maintains no regular place of business in
New York state and where the amount of the contract is in excess of
twenty-five thousand dollars. All other contractors or sub-contractors
shall produce within five days on the site of the work and upon formal
order of the commissioner or his designated representative such original
payrolls or transcripts thereof, subscribed and affirmed by him as true
under the penalties of perjury, as may be deemed necessary to adequately
enforce the provisions of this article. Every contractor, and
sub-contractor, shall submit to the department of jurisdiction within
thirty days after issuance of its first payroll, and every thirty days
thereafter, a transcript of the original payroll record, as provided by
this article, subscribed and affirmed as true under the penalties of
perjury. The department of jurisdiction shall be required to receive and
maintain such payroll records. The original payrolls or transcripts
shall be preserved for three years from the date of completion of the
work on the awarded contract. The department of jurisdiction as herein
referred to shall be the department of the state, board or officer in
the state, or municipal corporation or commission or board appointed
pursuant to law, whose duty it is to prepare or direct the preparation
of the plans and specifications for a public work project.
b. All departments of jurisdiction in respect of public work as to
which the industrial commissioner is fiscal officer, as defined in this
section, shall furnish to the industrial commissioner the following
information immediately upon signing of a contract for such public work:
(a) the name and address of the contractor engaged by said department of
jurisdiction; (b) the date when the contract was let; (c) the
approximate consideration stipulated for in said contract.
c. The fiscal officer may require any person or corporation performing
such public work to file with the fiscal officer within ten days of
receipt of said request, payroll records, sworn to as to their validity
and accuracy, requested by the fiscal officer, for said public work or
for any public or private work performed by said person or corporation
during the same period of time as said public work. In the event said
person or corporation fails to provide the requested information within
the allotted ten days, the fiscal officer shall, within fifteen days,
order the department of jurisdiction to immediately withhold from
payment to said person or corporation up to twenty-five percent of the
amount, not to exceed one hundred thousand dollars, to be paid to said
person or corporation under the terms of the contract pursuant to which
said public work is being performed. Said amount withheld shall be
immediately released upon receipt by the department of jurisdiction of a
notice from the fiscal officer indicating that the request for records
had been satisfied.
3-b. 1. Public work advisory board. There is hereby created in the
department an advisory board on public work composed of six members to
be appointed by the governor by and with the advice and consent of the
senate. Two members of the advisory board shall be persons known to
represent the interests of employers in the construction industry, two
persons shall be known to represent the interest of employees therein,
and two members shall be persons appointed to represent the public. The
governor may remove any member when he or she ceases to represent the
interests in whose behalf he or she was appointed. The commissioner of
labor shall be an additional member of such board without any voting
power and act as chairman thereof and shall designate an employee of the
department to be secretary. The board shall meet at the call of the
commissioner of labor and when engaged upon the work of the board each
member, except the commissioner, shall not receive a salary or other
compensation, but shall be reimbursed for reasonable traveling and other
expenses to be audited by the state comptroller.
2. Terms of office. All members of the advisory board shall be
appointed for a term of six years to begin at the expiration of the term
of office of the member whom he is to succeed. Any member appointed to
fill a vacancy occurring otherwise than by expiration of term shall be
appointed for the unexpired term of the member whom he is to succeed.
3-c. The advisory board shall adopt rules and regulations to govern
its own proceedings, and to expedite the making by it of the
examinations and determinations required by this chapter. The members of
the advisory board shall have power:
1. To issue subpoenas for and compel the attendance of witnesses and
the production of books, contracts, papers, documents and other
evidence;
2. To hear testimony and take or cause to be taken depositions of
witnesses residing within or without this state in the manner prescribed
by law for like depositions in civil actions in the supreme court.
Subpoenas and commissions to take testimony shall be issued under the
seal of the department.
3-d. The fiscal officer of any political subdivision of the state,
wherein a public work project is proposed to be constructed, may request
the industrial commissioner to make a classification by trades or
occupations of laborers, workmen and mechanics required to perform the
public work in its completed form. The board shall, when requested by
the industrial commissioner, examine into proposed public work projects
and determine the classification by trades or occupations of laborers,
workmen and mechanics required to perform the public work in its
completed form; and to determine which of same are skilled, semi-skilled
or unskilled. The board shall file with the industrial commissioner its
findings, determinations and recommendations.
3-e. Apprentices will be permitted to work as such only when they are
registered, individually, under a bona fide program registered with the
New York State Department of Labor. The allowable ratio of apprentices
to journeymen in any craft classification shall not be greater than the
ratio permitted to the contractor as to his work force on any job under
the registered program. Any employee listed on a payroll at an
apprentice wage rate, who is not registered as above, shall be paid the
wage rate determined by the New York State Department of Labor for the
classification of work he actually performed. The contractor or
subcontractor will be required to furnish written evidence of the
registration of his program and apprentices as well as of the
appropriate ratios and wage rates, for the area of construction prior to
using any apprentices on the contract work.
4. This section shall not apply to:
a. Stationary firemen in state hospitals;
b. Other persons regularly employed in the state institutions, except
mechanics;
c. Engineers, electricians and elevator men in the bureau of building
management of the office of general services during the annual session
of the legislature.
5. Definitions. a. The "prevailing rate of wage, " for the intents and
purposes of this article, shall be the rate of wage paid in the
locality, as hereinafter defined, by virtue of collective bargaining
agreements between bona fide labor organizations and employers of the
private sector, performing public or private work provided that said
employers employ at least thirty per centum of workers, laborers or
mechanics in the same trade or occupation in the locality where the work
is being performed. The prevailing rate of wage shall be annually
determined in accordance herewith by the fiscal officer no later than
thirty days prior to July first of each year, and the prevailing rate of
wage for the period commencing July first of such year through June
thirtieth, inclusive, of the following year shall be the rate of wage
set forth in such collective bargaining agreements for the period
commencing July first through June thirtieth, including those increases
for such period which are directly ascertainable from such collective
bargaining agreements by the fiscal officer in his annual determination.
In the event that it is determined after a contest, as provided in
subdivision six of this section, that less than thirty percent of the
workers, laborers or mechanics in a particular trade or occupation in
the locality where the work is being performed receive a collectively
bargained rate of wage, then the average wage paid to such workers,
laborers or mechanics in the same trade or occupation in the locality
for the twelve-month period preceding the fiscal officer's annual
determination shall be the prevailing rate of wage. Laborers, workers or
mechanics for whom a prevailing rate of wage is to be determined shall
not be considered in determining such prevailing wage.
b. "Supplements," for the intents and purposes of this article, means
all remuneration for employment paid in any medium other than cash, or
reimbursement for expenses, or any payments which are not "wages" within
the meaning of the law, including, but not limited to, health, welfare,
non-occupational disability, retirement, vacation benefits, holiday pay
life insurance, and apprenticeship training.
c. "Prevailing practices in the locality," for the intents and
purposes of this article, shall be the practice of providing
supplements, as hereinbefore defined, as provided by virtue of
collective bargaining agreements between bona fide labor organizations
and employers of the private sector, performing public or private work
provided that said employers employ at least thirty per centum of
workers, laborers or mechanics in the same trade or occupation in the
locality, as determined by the fiscal officer in accordance with the
provisions herein.
With respect to each supplement determined to be one of the prevailing
practices in the locality, the amount of such supplement shall be
determined in the same manner and at the same times as the prevailing
rate of wage is determined pursuant to this section.
d. "Locality" means such areas of the state described and defined for
a trade or occupation in the current collective bargaining agreements
between bona fide labor organizations and employers of the private
sector, performing public and private work.
e. The "fiscal officer," as used herein, shall be deemed to be, on
public work performed by or on behalf of the state or a public benefit
corporation or a county or a village, or other civil division of the
state, except a city, with a population in excess of one million, the
commissioner of labor; and on public work performed by or on behalf of a
city with a population in excess of one million, the comptroller or
other analogous officer of such city.
f. The term "verified complaint," as applied to a claim against a
municipality, shall include a verified demand or verified notice of
claim heretofore, and since the first day of January, nineteen hundred
thirty-five, filed with the fiscal officer of such municipality in
accordance with the provisions of the local charter or local laws or
ordinances relating generally to the filing of claims or demands against
such municipality; and any person who has filed such a demand or notice
shall be deemed to have filed a verified complaint as of the date, not
earlier than the first day of January, nineteen hundred thirty-five,
mentioned in such notice or demand as the commencement of the period in
relation to which such claim or demand is made.
g. "Substantially owned-affiliated entity" shall mean the parent
company of the contractor or subcontractor, any subsidiary of the
contractor or subcontractor, or any entity in which the parent of the
contractor or subcontractor owns more than fifty percent of the voting
stock, or an entity in which one or more of the top five shareholders of
the contractor or subcontractor individually or collectively also owns a
controlling share of the voting stock, or an entity which exhibits any
other indicia of control over the contractor or subcontractor or over
which the contractor or subcontractor exhibits control, regardless of
whether or not the controlling party or parties have any identifiable or
documented ownership interest. Such indicia shall include, power or
responsibility over employment decisions, access to and/or use of the
relevant entity's assets or equipment, power or responsibility over
contracts of the entity, responsibility for maintenance or submission of
certified payroll records, and influence over the business decisions of
the relevant entity.
h. "Entity" shall mean a partnership, association, joint venture,
company, sole proprietorship, corporation or any other form of doing
business.
i. "Parent company" shall mean an entity that directly controls the
contractor or subcontractor.
j. "Subsidiary" shall mean an entity that is controlled directly, or
indirectly through one or more intermediaries, by a contractor or
subcontractor or by the contractor's parent company.
k. "Successor" shall mean an entity engaged in work substantially
similar to that of the predecessor, where there is substantial
continuity of operation with that of the predecessor.
6. The fiscal officer, may, and on the written request of any
interested person shall, require any person or corporation performing
such public work to file with such fiscal officer schedules of the
supplements to be provided and wages to be paid to such laborers,
workmen or mechanics. Any such person or corporation shall, within ten
days after the receipt of written notice of such requirement, file with
the fiscal officer such schedules of wages and supplements. An employer
may contest a determination by the fiscal officer under paragraphs a and
c of subdivision five of this section. The employer must allege and
prove by competent evidence, that the actual percentage of workers,
laborers or mechanics is below the required thirty per centum and during
the pendency of any such contest and until final determination thereof,
the work in question shall proceed under the rate established by the
fiscal officer.
7. Compliance investigations. The fiscal officer as herein defined
shall on a verified complaint in writing of any person interested or of
any employee organization pursuant to subdivision eight-d, and may on
his own initiative cause a compliance investigation to be made to
determine whether the contractor or a subcontractor has paid the
prevailing rate of wages and prevailing practices for supplements in the
same trade or occupation in the locality within the state where such
public work is being performed, or the hours of labor performed by the
workmen, laborers and mechanics employed on such public work, or both.
The fiscal officer or his agents, examiners and inspectors may examine
or cause to be examined the books and records pertaining to the rate of
wages paid and supplements provided to the laborers, workmen and
mechanics on said public work and the hours of labor performed by such
laborers, workmen and mechanics on said public work. The fiscal officer
in such investigation shall be deemed to be acting in a judicial
capacity, and shall have the right to issue subpoenas, administer oaths
and examine witnesses. The enforcement of a subpoena issued under this
section shall be regulated by the civil practice law and rules. Such
fiscal officer shall make either an order, determination or any other
disposition, including but not limited to an agreed upon settlement
and/or stipulation, within six months from the date of filing of such
verified complaint, and where a compliance investigation is made without
the filing of a verified complaint, within six months from the date a
compliance investigation is initiated by such fiscal officer. Upon the
making of said order or determination, or upon arriving at such agreed
upon settlement and/or stipulation, a copy thereof shall be sent by
certified mail, return receipt requested, by the fiscal officer: (i) to
the person and employee organization, if any, who or which initiated the
complaint, (ii) to the person or corporation, if any, against whom the
complaint was brought, and (iii) where a compliance investigation is
made without the filing of a complaint, to the person or corporation who
or which was the subject of the compliance investigation.
7-a. The fiscal officer must make an inquiry as to the willfulness of
the alleged violation which is the subject of a compliance investigation
pursuant to subdivision seven of this section. In the event a formal
hearing is held pursuant to subdivision eight of this section, the
fiscal officer, upon a review of the entire record and a finding of
credible evidence, must make a determination, as to the willfulness of
said violation. No finding of willfullness made pursuant to the
provisions of this subdivision shall be dispositive for the purposes of
section one hundred ninety-eight-a of this chapter or of the last
undesignated paragraph of subdivision three of this section.
8. Hearings. Before issuing an order or determination as provided in
subdivision seven, the fiscal officer shall order a hearing thereon at a
time and place to be specified, and shall give notice thereof, together
with a copy of such complaint or the purpose thereof, or a statement of
the facts disclosed upon such investigation, which notice shall be
served personally or by mail on any person or corporation affected
thereby; such person or corporation shall have an opportunity to be
heard in respect to the matters complained of at the time and place
specified in such notice, which time shall be not less than five days
from the service of the notice personally or by mail. The fiscal officer
in such hearing shall be deemed to be acting in a judicial capacity, and
shall have the right to issue subpoenas, administer oaths and examine
witnesses. The enforcement of a subpoena issued under this section shall
be regulated by the civil practice law and rules. Such hearing shall be
expeditiously conducted and upon such hearing the fiscal officer shall
determine the issues raised thereon and shall make and file an order in
the office of the fiscal officer stating such determination, and
forthwith serve a copy of such order, with a notice of the filing
thereof, upon the parties to such proceeding, personally or by mail.
Such order shall direct payment of wages or supplements found to be due,
including interest at the rate of interest then in effect as prescribed
by the superintendent of banks pursuant to section fourteen-a of the
banking law per annum from the date of the underpayment to the date of
the payment, provided, however, that such interest rate shall not apply
to subdivision eight-c of this section.
In addition to directing payment of wages or supplements including
interest found to be due, such order may direct payment of a further sum
as a civil penalty in an amount not exceeding twenty-five percent of the
total amount found to be due. In assessing the amount of the penalty,
due consideration shall be given to the size of the employer's business,
the good faith of the employer, the gravity of the violation, the
history of previous violations and the failure to comply with
recordkeeping or other non-wage requirements. Where the fiscal officer
is the commissioner, the penalty shall be paid to the commissioner for
deposit in the state treasury. Where the fiscal officer is a city
comptroller or other analogous officer, the penalty shall be paid to
said officer for deposit in the city treasury.
Upon the entry of such order any party aggrieved thereby may commence
a proceeding for the review thereof pursuant to article seventy-eight of
the civil practice law and rules within thirty days from the notice of
the filing of the said order in the office of the fiscal officer. Said
proceeding shall be commenced directly in the appellate division of the
supreme court. If such order is not reviewed, or is so reviewed and the
final decision is in favor of the complainant and the order involves or
relates to the rate of wages paid or the supplements provided on such
public work, the complainant or any other person affected may within six
months after the service of notice of the filing of said order, or the
notice of entry of said final decision on review, institute an action
against the person or corporation found violating this act for the
recovery of the difference between the sum actually paid or provided and
the amount which should have been paid or provided, together with
interest at the rate of interest provided herein, as determined by said
order or decision, as the case may be, from and after the date of the
filing of said verified complaint, with the fiscal officer or of the
filing of the fiscal officer's report of investigation made on his own
initiative. Provided that no proceeding for judicial review as provided
herein shall then be pending and the time for initiation of such
proceeding shall have expired, the fiscal officer may file with the
county clerk of the county where the employer resides or has a place of
business the order of the fiscal officer containing the amount found to
be due. The filing of such order shall have the full force and effect of
a judgment duly docketed in the office of such clerk. The order may be
enforced by and in the name of the fiscal officer in the same manner,
and with like effect, as that prescribed by the civil practice law and
rules for the enforcement of a money judgment.
8-a. Notwithstanding any inconsistent provision of this chapter or of
any other general, special or local law, ordinance, charter or
administrative code, the prior receipt without protest of the wages,
salary or supplements paid or provided, as the case may be, to the
complainant or any other person affected by such final order, or his
failure to state orally or in writing upon any payroll or receipt which
he is required to sign that the wages, salary or supplements received by
him is received under protest, or to indicate in any other way his
protest against the amount thereof, or that the amount so paid does not
constitute payment in full of the wages or salary due him for the period
covered by such payment, or that the supplements provided do not
constitute the full supplements due him, shall not be a bar to his right
to recover, in accordance with the provisions of subdivision eight, the
difference between the sum actually paid or provided, as the case may
be, and the amount which should have been paid or provided, as the case
may be, as determined by such final order.
8-b. Notwithstanding any inconsistent provision of this chapter or of
any other general, special or local law, ordinance, charter or
administrative code, an employee of a municipal corporation,
irrespective of the title of his position or employment, whose salary or
wage or supplement is fixed by reference to a prevailing rate of wage
determined or to a prevailing practice for supplements determination and
established by a final order in a proceeding instituted under this
section, shall not be barred from his right to recover, in accordance
with the terms of such fixation, the difference between the amount
actually paid to him and the amount which should have been paid to him
or provided, as the case may be, pursuant to such fixation, because of
the prior receipt by him without protest of the salary, wages or
supplements paid or provided to him, as the case may be; or because he
did not previously protest his prior failure to be provided with any
supplement whatsoever; 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 salary or wages or supplements received by him is received under
protest, or on account of his failure to indicate his protest against
the amount or non-provision thereof or that the amount so paid or
provided does not constitute payment or provision, as the case may be,
in full of the salary, wages or supplement due him for the period
covered by such payment.
8-c. Interest at six percentum per annum shall begin to accrue sixty
days after a final determination made by a fiscal officer on the
difference between the prevailing wages so determined, and which should
have been paid to an employee of a municipal corporation, and the amount
actually received by him. Said accumulated interest shall be paid to the
employee when back pay based on the determination is paid to him.
8-d. Notwithstanding any inconsistent provision of this chapter or of
any other law, in a city of one million or more, where a majority of
laborers, workmen or mechanics in a particular civil service title are
members of an employee organization which has been certified or
recognized to represent them pursuant to the provisions of article
fourteen of the civil service law or a local law enacted thereunder, the
public employer and such employee organization shall in good faith
negotiate and enter into a written agreement with respect to the wages
and supplements of the laborers, workmen or mechanics in the title. If
the parties fail to achieve an agreement, only the employee organization
shall be authorized to file a single verified complaint pursuant to
subdivision seven herein, on behalf of the laborers, workmen or
mechanics so represented. Such employee organization shall be the sole
and exclusive representative of such laborers, workmen or mechanics at
any hearing pursuant to subdivision eight herein, and shall be the sole
complainant in the proceeding for all purposes therein, including review
pursuant to article seventy-eight of the civil practice law and rules.
Service by the fiscal officer on the employee organization shall be
sufficient notice to the laborers, workmen or mechanics so represented
for all purposes of subdivision eight herein, except that the issuance
and enforcement of subpoenas shall be regulated by the civil practice
law and rules. Any order, compromise, or settlement determining the
issues raised upon such a proceeding, which has not been taken up for
review by the employee organization, shall be binding upon the laborers,
workmen or mechanics represented by the employee organization. Nothing
herein shall be construed to limit the rights of any laborer, workman or
mechanic who has on file a verified complaint prior to the effective
date of this subdivision.
9. When a final determination has been rendered, any person, or
corporation that wilfully refuses thereafter to pay the rate of wages or
to provide the supplements determined to be prevailing, or wilfully
employs on such public work, laborers, workmen or mechanics more than
the hours per day determined by said order until modified by order of
the fiscal officer or court and thereby violates the provisions of this
section shall be 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 such 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 person or corporation shall be entitled
to receive any sum nor shall any officer, agent or employee of the state
or of a municipal corporation pay the same or authorize its payment from
the funds under his charge or control to any such person or corporation
for work done upon any contract, on which the contractor has been
convicted of second offense in violation of the provisions of this
section.
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