Authorizes the commissioner of labor to calculate proper payment of supplements by an annualization methodology utilized by the US department of labor under the Davis-Bacon Act of 1931; provides for the application of such method to be uniformly applied in every investigation.

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S4018A-2011 Actions

• Jan 4, 2012: REFERRED TO LABOR
• Oct 19, 2011: PRINT NUMBER 4018A
• Oct 19, 2011: AMEND (T) AND RECOMMIT TO LABOR
• Mar 14, 2011: REFERRED TO LABOR

S4018A-2011 Memo

BILL NUMBER:S4018A

TITLE OF BILL:

An act
to amend the labor law and the general municipal law,
in relation to ensuring consistency with the federal Davis
Bacon Act for calculation of payments for supplements and reciprocity
of debarments

PURPOSE:

Directs the Commissioner of Labor to direct that the proper payment of
supplements shall be calculated by employing the annualization
methodology utilized by the U.S.
Department of Labor in such calculations under the Davis Bacon Act.

SUMMARY OF PROVISIONS:

Section 1 -- Adds a new subdivision 3-f to Section 220 of the Labor
Law, dealing with contracts involving public work, to prevent
employers from using public work as a disproportionate or exclusive
source of funding for benefits that are in fact continuous in nature
and are part of the regular compensation for all employee work
whether public or private, the Commissioner shall direct that the
proper payment of supplements be calculated using an annualization
methodology. In order to protect workers and ensure consistency of
application, the Commissioner shall employ the annualization
methodology utilized by the U.S. Department of Labor in calculations
under the Davis Bacon Act of 1931 40 USC 276 et seq.

Section 2 -- Adds a new subdivision 3-f section 220-b of the labor
law that states when a contractor or subcontractor is debarred for
violations of the Davis Bacon Act of 1931 40 USC 3144 and 29 C.F.R
5.12, the contractor or subcontractor and any firm, corporation,
partnership or association in which the person or entity owns or
controls at least fifty-one per centum, shall be ineligible to be
awarded any public works contract with the state, any municipal
corporation, public benefit corporation or public body for a period
not to exceed the period of debarment determined or decided pursuant
to the act. The department must provide written notice to the person
or entity immediately of the ineligibility and provide them the
opportunity to be heard by the department within thirty calendar days
of the written notice.

Section 3 -- Amends section 103 of the general municipal law adding
new subdivision 1-c that states that in determining the lowest
bidder, the officer, board or agency of any political subdivision or
any district charged with awarding of contracts, shall consider
whether or not the bidder is debarred pursuant to paragraph b of
subdivision three of section two hundred twenty-b of the labor law in
making such determination of the award.

Section 4 -- Establishes the effective date.

JUSTIFICATION:


The annualization method currently utilized by the Commissioner of
Labor for calculating supplemental benefits which contractors are
required to provide employees who work on private and public work
projects forces contractors to either switch from providing employees
with supplemental benefits (health insurance, pension, etc.) to cash
payments of supplemental benefits or to pay workers at a higher
overall supplement rate which includes time spent on private
projects. In essence, the methodology currently utilized by the
Commissioner extends the reach of the public work law to partially
cover private work as well. The rate for supplements on private work
projects should be determined through forces of the free market
economy, rather than the rates required for public work projects. The
methodology prescribed by the Commissioner of Labor frustrates the
purpose of the prevailing wage law by extending it beyond public
work. The federal methodology for annualization of benefits under the
Davis Bacon Act is fair and does not penalize employers for doing
both public and private work. As such, this legislation would clarify
that the method utilized by the federal government under the Davis
Bacon Act is the method that will be applied in this State.

LEGISLATIVE HISTORY:

S.4309/A.2143 (2009-10), Held in Labor
A.5704 (2007-08), Held in Labor
A.11455 (2006), Referred to Labor

FISCAL IMPLICATIONS:

No fiscal implications.

EFFECTIVE DATE:

This act shall take effect on the one hundred twentieth day after it
shall have become a law and shall apply to all contracts and
agreements entered into on and after such date.
Effective immediately, the addition, amendment and/or repeal of any
rule or regulation necessary for implementation of this act on its
effective date is authorized and directed to be made and completed on
or before such effective date.

S4018A-2011 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                   4018--A

                         2011-2012 Regular Sessions

                              I N  SENATE

                               March 14, 2011
                                 ___________

  Introduced  by  Sens. DeFRANCISCO, RANZENHOFER, SEWARD -- read twice and
    ordered printed, and when printed to be committed to the Committee  on
    Labor  --  committee  discharged,  bill  amended, ordered reprinted as
    amended and recommitted to said committee

  AN ACT to amend the labor law and the general municipal law, in relation
    to ensuring consistency with the federal Davis Bacon  Act  for  calcu-
    lation of payments for supplements and reciprocity of debarments

    THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section 1. Section 220 of the labor law is amended  by  adding  a  new
  subdivision 3-f to read as follows:

    3-F.  IN ORDER TO PREVENT EMPLOYERS FROM USING PUBLIC WORK, AS DEFINED
  IN THIS ARTICLE, AS A DISPROPORTIONATE OR EXCLUSIVE  SOURCE  OF  FUNDING
  FOR  BENEFITS  THAT ARE IN FACT CONTINUOUS IN NATURE AND ARE PART OF THE
  REGULAR COMPENSATION FOR ALL EMPLOYEE WORK WHETHER  PUBLIC  OR  PRIVATE,
  THE  COMMISSIONER  SHALL  DIRECT  THAT THE PROPER PAYMENT OF SUPPLEMENTS
  SHALL BE CALCULATED BY EMPLOYING THE ANNUALIZATION METHODOLOGY  UTILIZED
  BY THE UNITED STATES DEPARTMENT OF LABOR IN CALCULATIONS UNDER THE DAVIS
  BACON ACT OF 1931, AS AMENDED, 40 USC. S 276(A)-276-A-7.
    S 2. Paragraph b of subdivision 3 of section 220-b of the labor law is
  amended by adding a new subparagraph 3 to read as follows:

    (3) WHEN ANY CONTRACTOR OR SUBCONTRACTOR IS DEBARRED FOR VIOLATIONS OF
  THE  DAVIS BACON ACT PURSUANT TO 40 U.S.C. 3144 AND 29 C.F.R. 5.12, SUCH
  CONTRACTOR OR SUBCONTRACTOR, AND ANY FIRM, CORPORATION,  PARTNERSHIP  OR
  ASSOCIATION  IN  WHICH  THE  PERSON  OR ENTITY OWNS OR CONTROLS AT LEAST
  FIFTY-ONE PER CENTUM, SHALL BE INELIGIBLE TO BE AWARDED ANY PUBLIC WORKS
  CONTRACT WITH THE  STATE,  ANY  MUNICIPAL  CORPORATION,  PUBLIC  BENEFIT
  CORPORATION  OR  PUBLIC  BODY  FOR  A PERIOD NOT TO EXCEED THE PERIOD OF
  DEBARMENT DETERMINED OR DECIDED PURSUANT TO  SUCH  ACT.  THE  DEPARTMENT
  SHALL PROVIDE WRITTEN NOTICE TO THE PERSON OR ENTITY IMMEDIATELY OF SUCH
  INELIGIBILITY  PURSUANT  TO  THIS SUBPARAGRAPH AND SUCH PERSON OR ENTITY

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD05141-02-1

 S. 4018--A                          2

  SHALL BE AFFORDED THE OPPORTUNITY TO BE HEARD BY THE  DEPARTMENT  WITHIN
  THIRTY CALENDAR DAYS OF THE DEPARTMENT'S WRITTEN NOTICE.
    S  3.  Section 103 of the general municipal law is amended by adding a
  new subdivision 1-c to read as follows:

    1-C. IN DETERMINING THE LOWEST RESPONSIBLE BIDDER, THE OFFICER,  BOARD
  OR  AGENCY  OF  ANY  POLITICAL  SUBDIVISION  OR  OF ANY DISTRICT THEREIN
  CHARGED WITH AWARDING OF CONTRACTS, SHALL CONSIDER WHETHER  OR  NOT  THE
  BIDDER, OR A PERSON OR ENTITY WITH AN INTEREST OF AT LEAST FIFTY-ONE PER
  CENTUM IN THE BIDDER, IS DEBARRED PURSUANT TO PARAGRAPH B OF SUBDIVISION
  THREE  OF  SECTION TWO HUNDRED TWENTY-B OF THE LABOR LAW, IN MAKING SUCH
  DETERMINATION OF AWARD.
    S 4. This act shall take effect on the one hundred twentieth day after
  it shall have become a law and shall apply to all contracts  and  agree-
  ments  entered  into  on and after such date. Effective immediately, the
  addition, amendment and/or repeal of any rule  or  regulation  necessary
  for  the  implementation of this act on its effective date is authorized
  and directed to be made and completed on or before such effective date.