2013 New York Consolidated Laws
LAB - Labor
Article 8 - (220 - 224) PUBLIC WORK
220-B - Amounts due for wages and supplements may be withheld for benefit of laborers.

 
    §  220-b.  Amounts  due  for wages and supplements may be withheld for
  benefit of laborers.  1.  In  case  any  interested  person  shall  have
  previously  filed  a  protest in writing objecting to the payment to any
  contractor or subcontractor to the extent of the amount or  amounts  due
  or  to  become  due  to him for daily or weekly wages or supplements for
  labor performed on the public improvement for which  such  contract  was
  entered into, or if for any other reason it may be deemed advisable, the
  comptroller  of  the  state  or  the  financial officer of the municipal
  corporation or other officer or person  charged  with  the  custody  and
  disbursement  of the state or corporate funds applicable to the contract
  for such public improvement may deduct from  the  whole  amount  of  any
  payment on account thereof the sum or sums admitted by any contractor or
  subcontractor  in  such  statement  or statements so filed to be due and
  owing by him on account of labor performed on  such  public  improvement
  before  making  payment  of  the  amount  certified  for  payment in any
  estimate or voucher, and may withhold the amount  so  deducted  for  the
  benefit of the laborers, workmen or mechanics whose wages or supplements
  are unpaid or not provided, as the case may be, as shown by the verified
  statements  filed  by  any  contractor  or  subcontractor,  and  may pay
  directly to any person the amount or amounts shown to be due to  him  or
  his  duly  authorized  collective  bargaining labor organization, as the
  case may be, for such wages or supplements by the  statements  filed  as
  hereinbefore   required,  thereby  discharging  the  obligation  of  the
  contractor or  subcontractor  to  the  person  or  his  duly  authorized
  collective  bargaining  labor organization receiving such payment to the
  extent of the amount thereof, or
    2. a. (1) When any interested person shall file  a  written  complaint
  with  the  fiscal  officer,  as herein defined, alleging unpaid wages or
  supplements due for labor performed on a public improvement for which  a
  contract  has  been entered into, and said labor is alleged to have been
  performed within the two-year period immediately preceding the  date  of
  the  filing  of  said  complaint,  or  if,  on  the fiscal officer's own
  initiative, unpaid wages or supplements appear to  be  due,  the  fiscal
  officer  shall  immediately so notify the financial officer of the civil
  division interested, or, if there are insufficient moneys still  due  to
  the  contractor  or subcontractor to satisfy said wages and supplements,
  including interest and penalty, the financial officer of  another  civil
  division  which  has  entered  or  subsequently  enters  into  a  public
  improvement contract with the contractor  or  subcontractor,  who  shall
  withhold  from any payment due or earned the contractor or subcontractor
  executing any public improvements, sufficient  moneys  to  satisfy  said
  wages  and  supplements, including interest at the rate provided herein,
  and any civil penalty that may be assessed as provided herein, pending a
  final determination. The financial officer shall immediately confirm  in
  writing to the fiscal officer the amount of money withheld.
    (2)  If  there  are  still  insufficient  moneys  due or earned to the
  contractor or subcontractor, as a result of work performed,  to  satisfy
  such  wages  and  supplements,  including  interest  and  penalties, the
  financial officer shall immediately notify the fiscal officer,  who  may
  issue a notice of intent to withhold any of the following:
    (i)  any  substantially-owned  affiliated  entity  or any successor or
  subsidiary 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.

    (3)  The  notice  of  intent to withhold 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 satisfy unpaid wages and supplements,  including  interest  at
  the  rate  provided  in  this article, and any civil penalty that may be
  assessed as provided in this article, from any payment due or earned the
  notified party under  any  public  improvement  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  top  five  shareholder  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  top  five  shareholder,  any
  officer of the contractor or subcontractor who knowingly participated in
  the  violation  of  this  article,  or  a substantially-owned affiliated
  entity, or successor, the fiscal  officer  may  instruct  the  financial
  officer  to  withhold  sufficient  moneys  to  satisfy  said  wages  and
  supplements, including interest at the rate provided  in  this  article,
  and  any  civil penalty that may be assessed as provided in this article
  from any payment due the notified party  under  any  public  improvement
  contract pending the final determination.
    (4)  The  financial  officer shall immediately implement the notice of
  withholding and confirm in writing to the fiscal officer the  amount  of
  money  to  be  withheld.  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 top five
  shareholder, an officer of the contractor or subcontractor who knowingly
  participated in the violation of this article, or a  substantially-owned
  affiliated  entity  or  successor,  the fiscal officer shall immediately
  notify the financial officer to release all payments being withheld from
  the notified party and the financial officer shall implement the notice.
    b. Moneys withheld pursuant to this  section  shall  be  held  by  the
  financial  officer  for  the  sole  and exclusive benefit of the workers
  employed on said public improvement and for payment of any civil penalty
  that may be assessed as provided herein and shall not be  used  for  any
  other   purpose  except  upon  court  order.  Any  person,  partnership,
  association, corporation or  governmental  body  who  files  a  lien  or
  commences  a  judicial  proceeding  with  respect to any monies withheld
  pursuant to this section shall notify the fiscal officer in  writing  of
  the  lien  or  claim  on  or  before  the  date of filing of the lien or
  commencement of the judicial proceeding. In  any  proceeding  to  obtain
  moneys  withheld  pursuant  to  this section by any person, partnership,
  association, corporation or governmental body, the fiscal officer  shall
  have the right to appear and be heard.
    c.  The  fiscal  officer  shall  cause  an investigation to be made to
  determine whether any amounts  are  due  to  the  laborers,  workmen  or
  mechanics,  or on their respective behalves, on such public improvement,
  for labor performed after the  commencement  of  the  three-year  period
  immediately preceding the filing of the complaint or the commencement of
  the  investigation  on his own initiative, as the case may be, and 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 a
  statement of the facts disclosed upon such investigation,  which  notice
  shall  be  served  personally  or  by  mail  on  all interested persons,

  including the person complained against and upon the  financial  officer
  of  the  civil division interested; such person complained against 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 said notice. The fiscal  officer
  in  such  an  investigation  shall  be deemed to be acting in a judicial
  capacity and shall have the rights 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
  investigation  and  hearing  shall  be expeditiously conducted, and upon
  such hearing and investigation, the fiscal officer shall  determine  the
  issues  raised  thereon  and  shall make and file an order in his office
  stating such determination and forthwith serve a  copy  of  such  order,
  either  personally  or by mail, together with notice of filing, upon the
  financial officer of the civil division interested, and the  parties  to
  such  proceedings and, if the fiscal officer be the comptroller or other
  analogous officer of a city, upon the  commissioner.  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  financial services pursuant to section fourteen-a of
  the banking law per annum from the date of the underpayment to the  date
  of the payment.
    d.  In addition to directing payment of wages or supplements including
  interest found to be due, the 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 or
  any successor or substantially-owned affiliated entity  or  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 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. Upon the fiscal officer's determination  of  the  penalty,
  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.
    e. Upon the entry and service of such order, the financial officer  of
  the civil division interested shall pay to the claimant, from the moneys
  due  to  the  contractor  or  subcontractor,  the amount of the claim as
  determined by the fiscal officer and the amount of the civil penalty, if
  any, shall be paid as  provided  herein,  provided  that  no  proceeding
  pursuant  to  article  seventy-eight of the civil practice law and rules
  for review of said order is commenced by  any  party  aggrieved  thereby
  within  thirty  days from the date said order was filed in the office of
  the fiscal officer. Said proceeding shall be commenced directly  in  the
  appellate division of the supreme court. Where the fiscal officer is the
  commissioner,  the  civil  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. In the event that such  a
  proceeding  for  review  is instituted, moneys sufficient to satisfy the
  claim and civil penalty shall be set  aside  by  the  financial  officer
  interested  as  provided  in paragraph b of this subdivision, subject to
  the order of the court.

    f. If the financial officer of the civil division interested fails  to
  pay  to the claimant the amount of the claim as determined by the fiscal
  officer within ten days after the expiration of the contractor's time to
  commence a proceeding for review of the fiscal officer's  order  or,  if
  such  a  proceeding  has been commenced, within ten days after entry and
  service of a court order confirming  the  fiscal  officer's  order,  the
  civil  division  interested  shall  pay  to the claimant interest on the
  claim at the rate of interest  then  in  effect  as  prescribed  by  the
  superintendent  of  financial services pursuant to section fourteen-a of
  the banking law from the date the financial officer was required to  pay
  the  claim as provided herein to the date of payment; provided, however,
  this paragraph shall not apply if the failure of the  financial  officer
  of  the  civil  division  interested  to  pay the amount of the claim is
  pursuant to court order.
    g. 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  shareholders  or
  successor  or  substantially-owned  affiliated  entity  or  other entity
  determined to have violated any provision of subdivision five of section
  two hundred twenty of this article or  this  subdivision;  the  notified
  party  may  contest  the filing on the basis that it is not a partner or
  top five shareholder, any officer of the contractor or subcontractor who
  knowingly participated in the violation of this article, or 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 subject  to
  the  provision  of  this paragraph, the fiscal officer shall immediately
  withdraw his filing of the order.
    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.
    h. 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  that  has  been  assessed,  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.
    Provided  that no proceeding for judicial review shall then be pending
  and the time for initiation of such proceeding shall have  expired,  the
  commissioner  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 an
  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 commissioner 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.
    2-a. The fiscal officer shall make an inquiry as to the willfulness of
  the alleged violation which is the subject of an investigation  pursuant
  to  subdivision  two  of  this section. In the event a formal hearing is
  held pursuant to 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 such 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 section two hundred twenty of this article.
    3.  a. When a final determination has been made and such determination
  is in favor of the complainant, said complainant 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
  violating 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.
    b. (1) When two final determinations  have  been  rendered  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
  officer of the contractor or subcontractor who knowingly participated in
  the violation of this article,  any  of  the  shareholders  who  own  or
  control  at  least  ten  per  centum  of  the  outstanding  stock of the
  contractor or subcontractor or  any  successor  within  any  consecutive
  six-year   period   determining  that  such  contractor,  subcontractor,
  successor,  or  any  substantially-owned  affiliated   entity   of   the
  contractor  or  subcontractor,  any  of  the  partners  or  any  of  the
  shareholders who  own  or  control  at  least  ten  per  centum  of  the
  outstanding stock of the contractor or subcontractor, any officer of the
  contractor  or subcontractor who knowingly participated in the violation
  of this article has wilfully failed to pay the prevailing rate of  wages
  or  to provide supplements in accordance with this article, whether such
  failures were concurrent or consecutive and whether or  not  such  final
  determinations  concerning  separate  public  work projects are rendered
  simultaneously,  such  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 shareholders who own or control at least ten
  per  centum of the outstanding stock 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 work  contract  or  subcontract
  with the state, any municipal corporation or public body for a period of
  five  years from the second final determination, provided, however, that
  where any such final determination involves the falsification of payroll
  records or  the  kickback  of  wages  or  supplements,  the  contractor,
  subcontractor,  successor,  or any substantially-owned affiliated entity
  of the contractor or subcontractor, any partner  if  the  contractor  or
  subcontractor  is  a  partnership  or any of the shareholders who own or
  control at least  ten  per  centum  of  the  outstanding  stock  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
  work contract with the state, any municipal corporation or  public  body
  for a period of five years from the first final determination.
    (2)  When any person or corporation, or any officer or shareholder who
  owns or controls at least ten per centum of  the  outstanding  stock  of
  such  corporation,  has  been  convicted of a felony offense for conduct
  relating  to  obtaining  or  attempting  to  obtain,  or  performing  or
  attempting  to  perform  a  public  work  contract  with  the state, any
  municipal corporation, public benefit corporation or  public  body,  and
  such felony offense is a violation of:
    (i) this chapter; or
    (ii)  coercion in the first degree as defined in section 135.65 of the
  penal law, grand larceny in the fourth  degree  as  defined  in  section
  155.30 of the penal law, grand larceny in the third degree as defined in
  section  155.35  of the penal law, grand larceny in the second degree as
  defined in section 155.40 of the penal law, grand larceny in  the  first
  degree  as  defined  in  section 155.42 of the penal law, forgery in the
  second degree as defined in section 170.10 of the penal law, forgery  in
  the first degree as defined in section 170.15 of the penal law, criminal
  possession  of  a  forged  instrument in the second degree as defined in
  section 170.25 of  the  penal  law,  criminal  possession  of  a  forged
  instrument in the first degree as defined in section 170.30 of the penal
  law, criminal possession of forgery devices as defined in section 170.40
  of  the  penal  law,  falsifying business records in the first degree as
  defined in section 175.10  of  the  penal  law,  tampering  with  public
  records  in  the  first degree as defined in section 175.25 of the penal
  law, offering a false instrument for  filing  in  the  first  degree  as
  defined  in section 175.35 of the penal law, issuing a false certificate
  as defined in section 175.40 of the penal law, insurance  fraud  in  the
  fourth  degree  as defined in section 176.15 of the penal law, insurance
  fraud in the third degree as defined in section 176.20 of the penal law,
  insurance fraud in the second degree as defined in section 176.25 of the
  penal law, insurance fraud in the first degree  as  defined  in  section
  176.30  of  the  penal  law,  aggravated  insurance  fraud as defined in
  section 176.35 of the penal law, commercial bribing in the first  degree
  as  defined  in  section  180.03  of  the  penal  law,  commercial bribe
  receiving in the first degree as defined in section 180.08 of the  penal
  law,  bribing a labor official as defined in section 180.15 of the penal
  law, bribe receiving by a labor official as defined in section 180.25 of
  the penal law, criminal impersonation in the second degree as defined in
  section 190.25 of the penal law, criminal  impersonation  in  the  first

  degree  as defined in section 190.26 of the penal law, criminal usury in
  the second degree as  defined  in  section  190.40  of  the  penal  law,
  criminal  usury  in the first degree as defined in section 190.42 of the
  penal  law,  scheme to defraud in the first degree as defined in section
  190.65 of the penal law, bribery in  the  third  degree  as  defined  in
  section 200.00 of the penal law, bribery in the second degree as defined
  in  section  200.03  of  the  penal  law, bribery in the first degree as
  defined in section 200.04 of the penal law, bribe receiving in the third
  degree as defined in section 200.10 of the penal law, bribe receiving in
  the second degree as defined in section 200.11 of the penal  law,  bribe
  receiving  in the first degree as defined in section 200.12 of the penal
  law, rewarding official misconduct in the second degree  as  defined  in
  section  200.20  of  the penal law, rewarding official misconduct in the
  first degree as defined in section 200.22 of the penal law, bribe giving
  for public office as defined in section 200.45 of the penal law, or  the
  attempted commission of any of the offenses set forth in this paragraph,
  provided that such offense constitutes a felony; or
    (iii) criminal solicitation in the second degree as defined in section
  100.10  of  the penal law, conspiracy in the fourth degree as defined in
  section 105.10 of the penal law, conspiracy  in  the  second  degree  as
  defined  in section 105.15 of the penal law, or criminal facilitation in
  the second degree as  defined  in  section  115.05  of  the  penal  law,
  provided  that  such offense is a felony and was committed in connection
  with  one  or  more  of  the  crimes  listed  in  clause  (ii)  of  this
  subparagraph; or
    (iv) article twenty-two of the general business law; or
    (v)  assault  in the second degree as defined in section 120.05 of the
  penal law, assault in the first degree as defined in section  120.10  of
  the  penal  law, reckless endangerment in the first degree as defined in
  section 120.25 of  the  penal  law,  criminally  negligent  homicide  as
  defined  in  section 125.10 of the penal law, manslaughter in the second
  degree as defined in section 125.15 of the penal  law,  manslaughter  in
  the  first  degree  as  defined  in  section 125.20 of the penal law and
  murder in the second degree as defined in section 125.25  of  the  penal
  law,  provided  that  the  victim  was  an  employee  of  such person or
  corporation and further provided that such offense arose from actions or
  matters related to the protection of the health or safety  of  employees
  at a work site;
  such  person  shall  be  ineligible to submit a bid on or be awarded any
  public works contract with the state, any municipal corporation,  public
  benefit  corporation  or public body for a period of five years from the
  date of conviction.
    c. Nothing in this subdivision shall be  construed  as  affecting  any
  provision  of  any  other  law or regulation relating to the awarding of
  public contracts except that the ineligibility for submission of any bid
  or receipt of any award of public work set forth in this  chapter  shall
  not  be  subject to any mitigation or judicial abatement, including, but
  not limited to, the provisions of article twenty-three of the correction
  law, and such ineligibility shall continue in full force and effect  for
  the entire period set forth above.