1. When is the prevailing wage rate used?
2. What is the definition of a public works or related projects?
3. Are there project monetary thresholds?
4. Are any types of projects specifically exempted?
5. What is included in the calculation of wage rates?
6. Who calculates the prevailing wage rates?
7. Enforcement: what are the penalties for violations? Criminal or fines?
8. Can contractors be debarred?
9. Are there posting requirements?
10. Does the agency retain any fines for enforcement (i.e. an enforcement fund)?
11. Record Maintenance?
12. Are there any provisions which discuss apprentices?
When is the prevailing wage rate used?
Information not available at this time.
What is the definition of a public works or related projects?
A) All construction projects that are funded with state and local government agency taxpayer money are considered a public works project. (New York State Center for Fair Contracting)
B) "SUCH PUBLIC WORKS" SHALL INCLUDE ANY PROGRAM OR PROJECT THE FINANCING OF WHICH IS PROVIDED, IN WHOLE OR IN PART, BY ANY PUBLIC BENEFIT CORPORATION, PUBLIC AUTHORITY, INDUSTRIAL DEVELOPMENT AGENCY, OR ANY SUBSIDIARY THEREOF. (476) (There are no definitions given for the terms in this paragraph.)
Are there project monetary thresholds?
There are no project monetary thresholds for prevailing wage in New York.
Are any types of projects specifically exempted?
There are no projects which are specifically exempted under the New York Prevailing Wage Law.
What is included in the calculation of wage rates?
Wages, overtime wages, contributions to approved pension, health and welfare or supplemental unemployment funds can be included in the wage rates.
Who calculates the prevailing wage rates?
The state determines the prevailing wages annually on a public works job by craft, classification, worker and region within the state (usually by county)
Enforcement: what are the penalties for violations? Criminal or fines?
A) Failure to provide the requested information (information on payroll records) within the allotted ten days will result in the withholding of up to 25% of the contract, not to exceed one hundred thousand dollars. (New York State Department of Labor)
B) A failure to provide a schedule (Prevailing Rate Schedule) by a contractor or subcontractor is a violation of Article 8 of the Labor Law. (New York State Department of Labor)
C) When a complaint is filed with the Commissioner of Labor alleging the failure of a contractor or subcontractor to pay or provide the prevailing wages or supplements, or when the Commissioner of Labor believes that unpaid wages or supplements may be due, payments on the public work contract shall be withheld from the prime contractor in a sufficient amount to satisfy the alleged unpaid wages and supplements, including interest and civil penalty, pending a final determination. (New York State Department of Labor)
D) When the Bureau of Public Work finds that a contractor or subcontractor on a public work project failed to pay or provide the requisite prevailing wages or supplements, the Bureau is authorized by Sections 220-b and 235.2 of the Labor Law to so notify the financial officer of the Department of Jurisdiction (Contracting Agency) that awarded the public work contract. Such officer MUST then withhold or cause to be withheld from any payment due the prime contractor on account of such contract the amount indicated by the Bureau as sufficient to satisfy the unpaid wages and supplements, including interest and any civil penalty that may be assessed by the Commissioner of Labor. The withholding continues until there is a final determination of the underpayment by the Commissioner of Labor or by the court in the event a legal proceeding is instituted for review of the determination of the Commissioner of Labor. (New York State Department of Labor)
E) Willful violations of the Prevailing Wage Law (Article 8 of the Labor Law) constitute a misdemeanor punishable by fine or imprisonment, or both. (New York State Department of Labor)
Can contractors be debarred?
Any contractor or subcontractor and/or its successor shall be ineligible to submit a bid on or be awarded any public work contract or subcontract with any state, municipal corporation or public body for a period of five years when:
Are there posting requirements?
A) The law requires that the prevailing wage rates be posted in a visible place on all public construction sites. (New York State Center for Fair Contracting)
B) The current Prevailing Rate Schedule must be posted in a prominent and accessible place on the site of the public work project. The prevailing wage schedule must be encased in, or constructed of, materials capable of withstanding adverse weather conditions and be titled "PREVAILING RATE OF WAGES" in letters no smaller than two (2) inches by two (2) inches. (New York State Department of Labor)
C) Every employer providing workers= compensation insurance and disability benefits must post notices of such coverage in the format prescribed by the Workers' Compensation Board in a conspicuous place on the job-site. (New York State Department of Labor)
D) Every employer subject to the New York State Human Rights Law must conspicuously post at its offices, places of employment, or employment training centers notices furnished by the State Division of Human Rights. (New York State Department of Labor)
E) Employers liable for contributions under the Unemployment Insurance Law must conspicuously post on the job-site notices furnished by the New York State Department of Labor. (New York State Department of Labor)
Does the agency retain any fines for enforcement (i.e. an enforcement fund)?
A) Chapter 511 of the Laws of 1995, as amended by Chapter 376 of the Laws of 2003, establishes the Public Work Enforcement Fund (PWEF) which is utilized by the Department of Labor (DOL) for the purposes of Labor Law enforcement.
B) This fund is supported by transfers and deposits based on assessments of public work contracts entered into by state agencies and public benefit corporations for construction, reconstruction, renovation, repair, maintenance or other improvement, as defined in Subdivision 2 of Section 220 B 6f of the Labor Law. The amount required to be provided to this fund, as stipulated in Chapter 376 of the Laws of 2003, is .07 of one-percent of the total cost of such contract.
Record Maintenance?
A) All contractors and subcontractors are required to file certified payroll records on a monthly basis with the appropriate awarding agency.
B) Certified payroll records must be certified and contain accurate information detailing each employee's name, address, and occupational classification, hours worked and wages paid.
Are there any provisions which discuss apprentices?
A) No employee shall be deemed an apprentice unless he is as herein defined.
B) Serving laborers, helpers, assistants and apprentices shall not be classified as common labor and shall be provided supplements in accordance with the prevailing 13 practices as hereinafter defined.
C) 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.
D) 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, work- man 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.
E) Employees cannot be paid apprentice rates unless they are individually registered in a program registered with the New York State Commissioner of Labor. The allowable ratio of apprentices to journey-workers in any craft classification can be no greater than the statewide building trade ratios promulgated by the Department of Labor and included with the Prevailing Rate Schedule. An employee listed on a payroll as an apprentice who is not registered as above or is performing work outside the classification of work for which the apprentice is indentured, must be paid the prevailing journey-worker's wage rate for the classification of work the employee is actually performing.
F) Article 8 of the New York State Labor Law requires that only apprentices individually registered with the New York State Department of Labor may be paid apprenticeship rates on a public work project. No other Federal or State Agency or office registers apprentices in New York State.
G) All requests for verification must include the name and social security number of the person for whom the information is requested.
H) The only conclusive proof of individual apprentice registration is written verification from the Albany Apprenticeship Training Central Office. Neither Federal nor State Apprenticeship Training offices outside Albany can provide conclusive registration information.
I) It should be noted that the existence of a registered apprenticeship program is not conclusive proof that any person is registered in that program. Furthermore, the existence or possession of wallet cards, identification cards or copies of state forms is not conclusive proof of the registration of any person as an apprentice.
References
1.) The New York State Center for Fair Contracting
* This is a Q&A format web-site.
2.) The New York State Assembly
* http://assembly.state.ny.us/leg/?bn=A00476&sh=t
3.) New York State Department of Labor
* General Provisions of Laws Covering Workerson Public Work Contracts
4.) New York State Department of Labor
* IMPORTANT NOTICE REGARDING PUBLIC WORK ENFORCEMENT FUND