2020 New York Laws
LAB - Labor
Article 8 - Public Work
224-A - Prevailing Wage Requirements Applicable to Construction Projects Performed Under Private Contract.

* §  224-a.  Prevailing  wage  requirements applicable to construction
projects performed under private contract. 1. Subject to the  provisions
of this section, each "covered project" as defined in this section shall
be  subject  to  prevailing wage requirements in accordance with section
two hundred twenty and two hundred twenty-b of this article. A  "covered
project"  shall mean construction work done under contract which is paid
for in whole or in part out of public funds as such term is  defined  in
this section where the amount of all such public funds, when aggregated,
is  at  least thirty percent of the total construction project costs and
where such project  costs  are  over  five  million  dollars  except  as
provided for by section two hundred twenty-four-c of this article.
  2.  For purposes of this section, "paid for in whole or in part out of
public funds" shall mean any of the following:
  a. The payment of money, by a public entity, or a third  party  acting
on  behalf  of and for the benefit of a public entity, directly to or on
behalf of the contractor, subcontractor, developer or owner that is  not
subject to repayment;
  b.  The  savings  achieved  from fees, rents, interest rates, or other
loan costs, or insurance costs that are lower than  market  rate  costs;
savings  from  reduced taxes as a result of tax credits, tax abatements,
tax exemptions or tax increment financing; savings from payments in lieu
of taxes; and any other savings from reduced, waived, or forgiven  costs
that  would  have  otherwise been at a higher or market rate but for the
involvement of the public entity;
  c. Money loaned by the public  entity  that  is  to  be  repaid  on  a
contingent basis; or
  d.  Credits that are applied by the public entity against repayment of
obligations to the public entity.
  3. For purposes of this section, "paid for in whole or in part out  of
public funds" shall not include:
  a.  Benefits  under  section  four  hundred  twenty-one-a  of the real
property tax law;
  b. Funds that are not provided primarily to promote,  incentivize,  or
ensure  that  construction  work  is performed, which would otherwise be
captured in subdivision two of this section;
  c.  Funds  used  to  incentivize  or  ensure  the  development  of   a
comprehensive  sewage  system,  including  connection  to existing sewer
lines or creation of new  sewage  lines  or  sewer  capacity,  provided,
however,  that  such  work  shall  be deemed to be a public work covered
under the provisions of this article;
  d. tax benefits provided for projects the length or value of which are
not able to be calculated at the time the work is to be performed;
  e. tax  benefits  related  to  brownfield  remediation  or  brownfield
redevelopment  pursuant  to  section twenty-one, twenty-two, one hundred
eighty-seven-g or one hundred eighty-seven-h of the tax law, subdivision
seventeen or eighteen of section two  hundred  ten-B  of  the  tax  law,
subsection  (dd)  or  (ee) of section six hundred six of the tax law, or
subdivision (u) or (v) of section fifteen hundred eleven of the tax law;
  f.  funds  provided  pursuant  to   subdivision   three   of   section
twenty-eight hundred fifty-three of the education law; and
  g.  any  other public monies, credits, savings or loans, determined by
the public subsidy board created in section two hundred twenty-four-c of
this article as exempt from this definition.
  4. For purposes of this section "covered project"  shall  not  include
any of the following:
  a. Construction work on one or two family dwellings where the property
is  the  owner's  primary  residence,  or construction work performed on

property where the owner of the property owns no more than four dwelling
units;
  b.  Construction work performed under a contract with a not-for-profit
corporation as defined in section one hundred two of the  not-for-profit
corporation   law,   other  than  a  not-for-profit  corporation  formed
exclusively for the purpose of holding title to property and  collecting
income thereof or any public entity as defined in this section where the
not-for-profit  corporation  has  gross  annual revenue and support less
than five million dollars;
  c.  Construction  work  performed  on  a  multiple  residence   and/or
ancillary  amenities  or installations that is wholly privately owned in
any of the following circumstances except as provided for by section two
hundred twenty-four-c of this article:
  (i) where no less than twenty-five percent of  the  residential  units
are   affordable  and  shall  be  retained  subject  to  an  anticipated
regulatory agreement  with  a  local,  state,  or  federal  governmental
entity,  or a not-for-profit entity with an anticipated formal agreement
with a local, state, or federal  governmental  entity  for  purposes  of
providing affordable housing in a given locality or region provided that
the  period  of  affordability  for a residential unit deemed affordable
under the provisions of this paragraph shall be for no less than fifteen
years from the date of construction; or
  (ii) where no less than thirty-five percent of the  residential  units
involves  the  provision  of  supportive housing services for vulnerable
populations provided that such  units  are  subject  to  an  anticipated
regulatory  agreement  with  a  local,  state,  or  federal governmental
entity; or
  (iii) any newly created programs for affordable or subsidized  housing
as  determined  by  the  public subsidy board established by section two
hundred twenty-four-c of this article.
  d. Construction work performed on a manufactured home park as  defined
in  paragraph three of subdivision a of section two hundred thirty-three
of the real property law where the manufactured home park is subject  to
a  regulatory  agreement  with  a  local, state, or federal governmental
entity for no less than fifteen years;
  e. Construction work performed under a pre-hire collective  bargaining
agreement  between  an  owner or contractor and a bona fide building and
construction trade labor organization which has  established  itself  as
the  collective  bargaining  representative  for  all  persons  who will
perform work on such a project, and which provides that only contractors
and subcontractors who sign a pre-negotiated agreement  with  the  labor
organization  can  perform  work on such a project, or construction work
performed under a labor peace agreement, project labor agreement, or any
other construction work performed under an enforceable agreement between
an owner or contractor and a bona fide building and  construction  trade
labor organization;
  f. Construction work performed on projects funded by section sixteen-n
of  the urban development corporation act or the downtown revitalization
initiative;
  g. Construction work and engineering and consulting services performed
in connection with  the  installation  of  a  renewable  energy  system,
renewable  heating  or  cooling system, or energy storage system, with a
capacity equal to or under five megawatts alternating current;
  h. Construction work performed on supermarket retail  space  built  or
renovated  with  tax incentives provided under the food retail expansion
to support health (FRESH) program through the New York  city  industrial
development agency;

  i.  Construction work performed for interior fit-outs and improvements
under  ten  thousand  square  feet  through  small  business  incubation
programs operated by the New York city economic development corporation;
  j.  Construction  work  on  space  to  be used as a school under sixty
thousand square feet, pursuant to a lease from a private  owner  to  the
New  York  city  department  of  education  and  the school construction
authority; or
  k. Construction work performed on projects that received tax  benefits
related to historic rehabilitation pursuant to subdivision twenty-six of
section  two  hundred  ten-B  of the tax law, subsection (oo) or (pp) of
section six hundred six of the tax law, or subdivision  (y)  of  section
fifteen hundred eleven of the tax law.
  5.  For  purposes  of this section, "public entity" shall include, but
shall not be limited to, the state, a local development  corporation  as
defined  in  subdivision  eight  of  section eighteen hundred one of the
public authorities  law  or  section  fourteen  hundred  eleven  of  the
not-for-profit  corporation  law,  a municipal corporation as defined in
section  one  hundred  nineteen-n  of  the  general  municipal  law,  an
industrial  development  agency formed pursuant to article eighteen-A of
the general municipal law or industrial development  authorities  formed
pursuant  to article eight of the public authorities law, and any state,
local or interstate or international authorities as defined  in  section
two  of  the public authorities law; and shall include any trust created
by any such entities.
  6. For purposes of this section, "construction" means work which shall
be as defined  by  the  public  subsidy  board  to  require  payment  of
prevailing  wage,  and  which  may  involve  the employment of laborers,
workers, or mechanics.
  7. For purposes of this section and section two hundred  twenty-four-b
of  this  article,  the  "fiscal  officer"  shall  be  deemed  to be the
commissioner.
  8. The enforcement of any construction work deemed  to  be  a  covered
project pursuant to this section, and any additional requirements, shall
be  subject,  in  addition  to this section, only to the requirements of
sections two hundred twenty,  two  hundred  twenty-four-b,  two  hundred
twenty-four-c,  and  two hundred twenty-b of this article and within the
jurisdiction of the fiscal officer; provided, however, nothing contained
in this section shall be deemed  to  construe  any  covered  project  as
otherwise  being  considered  public  work pursuant to this article; and
further provided:
  a. The owner or developer of such covered project shall certify  under
penalty of perjury within five days of commencement of construction work
whether  the  project  at  issue  is  subject  to the provisions of this
section through the use of a  standard  form  developed  by  the  fiscal
officer.
  b.  The  owners  or  developers  of  a  property who are undertaking a
project under private  contract,  may  seek  guidance  from  the  public
subsidy  board  contained  in  section two hundred twenty-four-c of this
article, and such board may render an opinion as to whether or  not  the
project  is  a  covered  project within the meaning of this article. Any
such determination shall not be reviewable by the  fiscal  officer,  nor
shall it be reviewable by the department pursuant to section two hundred
twenty of this article.
  c.  The  owner  or developer of a covered project shall be responsible
for retaining original payroll records in accordance  with  section  two
hundred  twenty  of  this  article  for  a  period of six years from the
conclusion of such work. All payroll records maintained by an  owner  or
developer  pursuant  to  this  section shall be subject to inspection on

request of the fiscal officer. Such owner or developer may authorize the
prime contractor of the construction project to take responsibility  for
retaining  and maintaining payroll records, but will be held jointly and
severally  liable  for  any  violations  of such contractor. All records
obtained by the fiscal officer  shall  be  subject  to  the  Freedom  of
Information Law.
  d.  Each  public  entity  providing  any of the public funds listed in
subdivision two of this section to an owner,  developer,  contractor  or
subcontractor of a project shall identify the nature and dollar value of
such  funds  and  whether  any such funds are excluded under subdivision
three of this section and shall so notify the recipient of such funds of
such determination and of their obligations under paragraph  a  of  this
subdivision.
  e.  The  fiscal  officer may issue rules and regulations governing the
provisions of this section. Violations of this section shall be  grounds
for  determinations  and orders pursuant to section two hundred twenty-b
of this article.
  9. Each owner and  developer  subject  to  the  requirements  of  this
section  shall  comply  with  the  objectives  and goals of minority and
women-owned business enterprises pursuant to article  fifteen-A  of  the
executive  law and service-disabled veteran-owned businesses pursuant to
article seventeen-B of the executive law. The department in consultation
with the directors of the division  of  minority  and  women's  business
development  and  of the division of service-disabled veterans' business
development shall  make  training  and  resources  available  to  assist
minority  and  women-owned  business  enterprises  and  service-disabled
veteran-owned business  enterprises  on  covered  projects  achieve  and
maintain  compliance  with  prevailing wage requirements. The department
shall make such training and resources available online and shall afford
minority  and  women-owned  business  enterprises  and  service-disabled
veteran-owned  business enterprises an opportunity to submit comments on
such training.
  10. a. The fiscal officer shall report to the governor, the  temporary
president  of the senate, and the speaker of the assembly by July first,
two thousand twenty-two, and annually thereafter, on  the  participation
of  minority and women-owned business enterprises in relation to covered
projects and contracts for public work subject to the provisions of this
section and section two hundred twenty of this article  respectively  as
well  as  the  diversity  practices  of  contractors  and subcontractors
employing laborers, workers, and mechanics on such projects.
  b. Such reports shall include aggregated data on the  utilization  and
participation  of  minority  and  women-owned  business enterprises, the
employment of minorities and women in construction-related jobs on  such
projects,  and  the commitment of contractors and subcontractors on such
projects to adopting  practices  and  policies  that  promote  diversity
within  the  workforce. The reports shall also examine the compliance of
contractors and subcontractors with other equal  employment  opportunity
requirements  and  anti-discrimination  laws,  in  addition to any other
employment practices deemed pertinent by the commissioner.
  c. The fiscal officer may require any owner or developer  to  disclose
information  on  the  participation of minority and women-owned business
enterprises   and   the   diversity   practices   of   contractors   and
subcontractors  involved  in  the performance of any covered project. It
shall be the duty of the fiscal officer to consult  and  to  share  such
information in order to effectuate the requirements of this section.
  11.  If  construction  work  is  not  deemed  to be a covered project,
whether by virtue of an exclusion of such project under subdivision four
of this section, or by virtue or not receiving sufficient  public  money

to  be  deemed  "paid for in whole or in part out of public funds", such
project shall not be subject to the requirements of sections two hundred
twenty and two hundred twenty-b of this article.
  * NB Effective January 1, 2022