2006 New York Code - Investigation And Hearing.

 
    §  235.  Investigation and hearing. 1. Whenever the fiscal officer has
  reason to believe that a service 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 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.
    2. a. At the start of such investigation the fiscal officer may notify
  the financial officer of the public agency interested who shall, at  the
  direction of the fiscal officer, forthwith withhold from any payment due
  to  the  contractor executing the contract sufficient money to safeguard
  the rights of the service employees and to cover the civil penalty  that
  may be assessed as provided herein, or, if there are insufficient moneys
  still  due or earned to the contractor or subcontractor to safeguard the
  rights of the service employees and to cover the civil penalty that  may
  be  assessed  as provided herein, the financial officer of another civil
  division which has  entered  or  subsequently  enters  into  a  building
  service  work  contract  with the contractor or subcontractor, who shall
  withhold from any payment due the contractor or subcontractor  executing
  any  building service work, sufficient moneys to safeguard the rights of
  the service employees and  to  cover  the  civil  penalty  that  may  be
  assessed as provided herein.
    b.  If  there are still insufficient moneys still due or earned to the
  contractor or subcontractor to  safeguard  the  rights  of  the  service
  employees  and  to  cover  the  civil  penalty  that  may be assessed as
  provided herein, the financial officer shall immediately so  notify  the
  fiscal  officer,  who  may  issue  a notice of withholding to any of the
  following: any substantially-owned affiliated  entity  or  successor  or
  subsidiary  of  the  contractor  or  subcontractor;  an  officer  of the
  contractor or subcontractor who knowingly participated in the  violation
  of this article, any of the partners, if the contractor or subcontractor
  is  a  partnership,  or  any  of  the  five  largest shareholders of the
  contractor or subcontractor, as determined by the fiscal officer.
    c. The notice of withholding shall provide  that  the  fiscal  officer
  intends  to  instruct  the  financial  officer,  not  less than ten days
  following service of the notice by mail, to withhold  sufficient  moneys
  to  safeguard the rights of the service employees and to cover the civil
  penalty that may be assessed as provided herein, from  any  payment  due
  the  notified  party  under  any  building service work contract pending
  final determination. The notice of withholding shall provide that within
  thirty days following the date of the notice of withholding the notified
  party may, contest the withholding on the basis that the notified  party
  is  not  a  partner  or  one  of  the  five  largest shareholders of the
  subcontractor  or  contractor,  an  officer   of   the   contractor   or
  subcontractor  who  knowingly  participated  in  the  violation  of this
  article, a substantially-owned affiliated entity or  successor.  If  the
  notified  party  fails  to  contest the notice of withholding, or if the
  fiscal officer, after reviewing the information provided by the notified
  party in such contest, determines that the notified party is  a  partner
  or   one   of  the  five  largest  shareholders,  a  substantially-owned
  affiliated entity, an officer of the  contractor  or  subcontractor  who
  knowingly participated in the violation of this article, or a successor,
  the  fiscal  officer  may  instruct the financial officer to immediately
  withhold sufficient moneys  to  safeguard  the  rights  of  the  service
  employees  and  to  cover  the  civil  penalty  that  may be assessed as
  provided herein from any  payment  due  the  notified  party  under  any
  building service work contract pending the final determination.
    d.  The  financial  officer  shall immediately implement the notice of
  withholding and confirm in writing to the fiscal officer the  amount  of
  money withheld.
    e.  If the notified party contests the withholding after a withholding
  has been effected,  and  if  the  fiscal  officer  determines  that  the
  notified party is not a partner or one of the five largest shareholders,
  a  substantially-owned affiliated entity or successor, an officer of the
  contractor or subcontractor who knowingly participated in the  violation
  of  this  article  the  fiscal  officer  shall  immediately  notify  the
  financial officer to  release  all  payments  being  withheld  from  the
  notified party.
    f.  The  money  shall  be  held  in  trust  pending  completion of the
  investigation.
    3. If, despite the requirements of law, the contract for  the  service
  work  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.
    4. In an investigation conducted under the provisions of this section,
  the  inquiry  of  the  fiscal officer shall not extend to work performed
  more than two years prior to: (a) the filing of the  complaint,  or  (b)
  the  commencement  of  the  investigation  upon the fiscal officer's own
  volition, whichever is earlier in point of time.
    5. a. The investigation and hearing shall be  expeditiously  conducted
  and  upon  the completion thereof the fiscal officer shall determine the
  issues raised and shall make and file an order  in  his  office  stating
  such  determination  and forthwith serve personally or by mail a copy of
  such order and determination together with a notice of filing  upon  all
  parties  to  the proceeding and upon the financial officer of the public
  agency involved.
    b. In addition to directing payment of wages found  to  be  due,  such
  order  of  the  fiscal  officer 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   of  the  employer,  successor  or
  substantially-owned affiliated entity or any successor of the contractor
  or subcontractor, any officer of the  contractor  or  subcontractor  who
  knowingly  participated in the violation of this article, and any of the
  partners if the contractor or subcontractor is a partnership or  any  of
  the  five  largest  shareholders  of the contractor or subcontractor, as
  determined by the fiscal officer,  of  such  underpayment  of  wages  or
  supplements,  and  any  officer  of  the contractor or subcontractor who
  knowingly participated in the violation of this article, 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.
    c.  If  the  order directs the payment to specified employees of wages
  found to be due and unpaid, including interest at a rate not  less  than
  six  per  centum per year and not more than 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 time such wages should
  have been paid, the financial officer of such public agency shall,  upon
  the  service  to him of such order, pay to such employees from the trust
  money withheld the amounts specified in such order  and  shall  pay  the
  civil penalty as provided herein, provided no review proceeding pursuant
  to the provisions of article seventy-eight of the civil practice law and
  rules  is  commenced within thirty days of the date said order was filed
  in the office of the fiscal officer. If such review is timely commenced,
  the money withheld shall remain in trust pending  final  disposition  of
  the review proceeding. In determining the rate of interest to be imposed
  the  fiscal  officer shall consider the size of the employer's business,
  the good faith of the  employer,  the  gravity  of  the  violation,  the
  history   of   previous   violations   of  the  employer,  successor  or
  substantially-owned affiliated entity or any successor of the contractor
  or subcontractor, any officer of the  contractor  or  subcontractor  who
  knowingly  participated in the violation of this article, and any of the
  partners if the contractor or subcontractor is a partnership or  any  of
  the  five  largest  shareholders  of the contractor or subcontractor, as
  determined by the  fiscal  officer,  and  the  failure  to  comply  with
  recordkeeping or other non-wage requirements.
    6.  When a final determination has been made and such determination is
  in favor of an employee, such employee may, in  addition  to  any  other
  remedy  provided  by  this  article, institute an action in any court of
  appropriate jurisdiction against the person or corporation found to have
  violated this article, any substantially-owned affiliated entity or  any
  successor  of  the  contractor  or  subcontractor,  any  officer  of the
  contractor or subcontractor who knowingly participated in the  violation
  of  this  article,  and  any  of  the  partners  if  the  contractor  or
  subcontractor is a partnership or any of the five  largest  shareholders
  of the contractor or subcontractor, as determined by the fiscal officer,
  for  the  recovery  of  the difference between the sum, if any, actually
  paid to him by the aforesaid financial officer pursuant  to  said  order
  and  the  amount  found  to be due him as determined by said order. Such
  action must be commenced within three years from the date of the  filing
  of said order, or if the said order is reviewed in a proceeding pursuant
  to  article  seventy-eight  of  the civil practice law and rules, within
  three years after the termination of such review proceeding.
    Provided that no proceeding for judicial review as  provided  in  this
  section  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.
    7. When, pursuant to the provisions of this section, two final  orders
  have been entered against a contractor, subcontractor, successor, or any
  substantially-owned    affiliated    entity   of   the   contractor   or
  subcontractor, any of the partners if the contractor or subcontractor is
  a partnership, any of the five largest shareholders of the contractor or
  subcontractor, any  officer  of  the  contractor  or  subcontractor  who
  knowingly  participated  in  the  violation  of  this article within any
  consecutive  six-year  period  determining  that  such   contractor   or
  subcontractor   and/or  its  successor,  substantially-owned  affiliated
  entity of the contractor or subcontractor, any of the partners or any of
  the five largest shareholders of the contractor  or  subcontractor,  any
  officer of the contractor or subcontractor who knowingly participated in
  the violation of this article has willfully failed to pay the prevailing
  wages  in  accordance  with the provisions of this article, whether such
  failures were concurrent or consecutive and whether or  not  such  final
  determinations concerning separate public building service contracts are
  rendered  simultaneously, such contractor, subcontractor, successor, and
  if  the contractor, subcontractor, successor, or any substantially-owned
  affiliated entity  of  the  contractor  or  subcontractor,  any  of  the
  partners  if the contractor or subcontractor is a partnership, or any of
  the five largest shareholders of the contractor  or  subcontractor,  any
  officer of the contractor or subcontractor who knowingly participated in
  the  violation  of  this article, or any successor is a corporation, any
  officer of such corporation who knowingly participated in such  failure,
  shall be ineligible to submit a bid on or be awarded any public building
  service  work  for  a  period  of five years from the date of the second
  order, provided, however, that where any such final order  involves  the
  falsification   of  payroll  records  or  the  kickback  of  wages,  the
  contractor,  subcontractor,  successor,  substantially-owned  affiliated
  entity of the contractor or subcontractor, any partner if the contractor
  or   subcontractor   is  a  partnership  or  any  of  the  five  largest
  shareholders of the contractor or  subcontractor,  any  officer  of  the
  contractor  or subcontractor who knowingly participated in the violation
  of this article shall be ineligible to submit a bid on or be awarded any
  public building service contract or  subcontract  with  the  state,  any
  municipal corporation or public body for a period of five years from the
  date  of  the  first  final  order. Nothing in this subdivision shall be
  construed as affecting any provision of  any  other  law  or  regulation
  relating to the awarding of public contracts.
    8.  a.  When  a  final  determination  has  been  made  in  favor of a
  complainant and the contractor or  subcontractor  found  violating  this
  article  has  failed  to  make  payment  as required by the order of the
  fiscal officer, and provided that no relevant  proceeding  for  judicial
  review  shall  then  be  pending  and  the  time  for initiation of such
  proceeding shall have expired, the fiscal officer may file a copy of the
  order of the fiscal officer containing the amount found to be  due  with
  the  county clerk of the county of residence or place of business of any
  of the following:
    (i) any substantially-owned affiliated entity or any successor of  the
  contractor or subcontractor;
    (ii)  any  of  the  partners  if  the contractor or subcontractor is a
  partnership or any of the five largest shareholders of the contractor or
  subcontractor, as determined by the fiscal officer; or
    (iii) any officer of the contractor  or  subcontractor  who  knowingly
  participated  in  the violation of this article; provided, however, that
  the fiscal officer shall within five days of the  filing  of  the  order
  provide  notice  thereof  to  the  partner  or  top  five shareholder or
  successor or substantially-owned affiliated entity. The  notified  party
  may  contest  the  filing  on the basis that it is not a partner or five
  largest shareholders, an officer of the contractor or subcontractor  who
  knowingly  participated  in  the violation of this article, successor or
  substantially-owned  affiliated  entity.   If,   after   reviewing   the
  information  provided  by the notified party in support of such contest,
  the fiscal officer determines that the notified party is not within  the
  definitions  described  herein,  the  fiscal  officer  shall immediately
  withdraw his filing of the order.
    b. 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.
    9. When a final determination has been made against a subcontractor in
  favor of a complainant and  the  contractor  has  made  payment  to  the
  complainant  of any wages and interest due the complainant and any civil
  penalty, and providing that no relevant proceeding for  judicial  review
  shall  then  be  pending  and the time for initiation of such proceeding
  shall have expired, the contractor may file a copy of the order  of  the
  fiscal  officer  containing  the  amount found to be due with the county
  clerk  of  the  county  of  residence  or  place  of  business  of   the
  subcontractor.  The  filing  of such order shall have the full force and
  effect of a judgment duly docketed in the  office  of  such  clerk.  The
  judgment may be docketed in favor of the contractor who may proceed as a
  judgment  creditor  against  the  subcontractor  for the recovery of all
  monies paid by the contractor under such order.