[HISTORY: Adopted by the Legislature of the
County of Putnam 5-6-2008 by L.L. No. 14-2008. Amendments noted
where applicable.]
A.
The Legislature hereby finds that there has been an
ongoing national debate regarding the unfairness and inequalities
between employers that comply with all federal, state, and local laws
and regulations in connection with the hiring of their employees and
employers that fail to comply with such laws and regulations.
B.
The Legislature further finds and determines that
these inequities provide a financial disadvantage to those employers
who comply with all federal, state, and local laws and regulations
in connection with the hiring of their employees while, in turn, providing
an unfair financial advantage to those employers who do not comply
with the law.
C.
The Legislature further finds and determines that,
since there has been a lack of enforcement of a twenty-year old federal
law (Simpson-Mazzoli) that requires businesses to verify that their
employees are legally eligible to be employed in the United States,
Putnam County has the opportunity to lead by example in an effort
to prod the federal government to undertake such enforcement action.
D.
The Legislature also finds and determines that employer
noncompliance with federal, state and local laws and regulations that
regulate the hiring of employees results in diminished protections
of employees from unfair labor practices and fosters the circumvention
of prevailing wage and health insurance coverage requirements.
E.
The Legislature further finds and determines that
Putnam County at present has no jurisdiction to enforce Simpson-Mazzoli,
even against businesses that are one-hundred-percent funded by the
County of Putnam.
F.
This Legislature also finds and determines that the
County of Putnam has a finite amount of scarce taxpayer resources
to expend, which resources shall be spent wisely and prudently.
G.
The Legislature also finds and determines that the
County of Putnam provides grants, loans, contracts, license agreements,
leases and other forms of financial assistance to businesses and persons
that result in the creation and maintenance of a wide variety of employment
opportunities in Putnam County, thereby affording the County the opportunity
to utilize its economic and financial leverage to compel local businesses
to comply with the federal law requiring businesses to verify that
their employees are legally eligible to be employed in the United
States.
As used in this chapter, the following terms
shall have the meaning indicated:
Any person who is not a citizen or national of the United
States.
That subordinate or component entity or person of the County
of Putnam that is responsible for solicitation of proposals or bids
and responsible for the award and administration of contracts, license
agreements, leases and other financial compensation agreements.
Any grant, loan, tax incentive funding, appropriation,
payment, subsidy or other form of financial assistance which is realized
by or provided to a covered employer, or the owners thereof, by or
through the authority or approval of the County of Putnam, including,
but not limited to, Community Development Block Grant (CDBG) loans,
Industrial Development Agency (IDA) financing or leasing, and Empire
Zone activities.
Any contract, subcontract, license agreement,
lease, or other financial compensation agreement let to a person with
or by the County of Putnam for the furnishing of services, goods,
equipment, supplies, materials, public works, or other property to
or for the County of Putnam
A person who contracts to do work for another. The term does
not include wholesalers.
The County of Putnam, any agency, office, position, administration,
department, division, bureau, board, commission, corporation, public
authority or unit of government, the expenses of which are to be paid
in whole or in part by the County of Putnam or over which majority
control is exercised by officers of the County of Putnam or of a County-affiliated
agency or their appointees.
An individual employed on either a full-time, part-time,
temporary or seasonal basis, by a covered employer, to perform work
on or for the project or matter for which the recipient has received
compensation.
A recipient of, or an applicant for, compensation that is
not exempt from this chapter and who has at least one covered employee
working within the County of Putnam, or at least one fifty-percent
or more owner living within the County of Putnam.
One or more of the following or their agents, employees,
representatives and legal representatives: individuals, corporations,
partnerships, joint ventures, associations, labor organizations, educational
institutions, mutual companies, joint-stock companies, all trusts,
unincorporated organizations, trustees, trustees in bankruptcy, receivers,
fiduciaries and other entities recognized at law by this County.
An individual who a) is a citizen or national of the United
States or b) is an alien who is lawfully admitted for permanent residence,
is granted the status of an alien lawfully admitted for temporary
residence under 8 U.S.C. § 1160(a) or § 1255a(a)(1),
is admitted as a refugee under 8 U.S.C. § 1157, or is granted
asylum under 8 U.S.C. § 1158; but does not include i) an
alien who fails to apply for naturalization within six months of the
date the alien first becomes eligible (by virtue of period of lawful
permanent residence) to apply for naturalization or, if later, within
six months after the date of enactment of 8 U.S.C. § 1324b,
and ii) an alien who has applied on a timely basis but has not been
naturalized as a citizen within two years after the date of application,
unless the alien can establish that the alien is actively pursuing
naturalization.
Any person or entity that is a recipient of compensation,
as defined in this chapter, and any contractor or subcontractor of
a recipient producing or providing goods, materials, supplies, public
works, or services to a recipient that are used by that recipient
in the project or matter for which the recipient has received compensation.
A period of time not to exceed 90 consecutive days at any
given time within a six-month period.
A person who takes portions of a contract from a covered
employer, a contractor or another subcontractor. This term does not
include wholesalers.
A person who buys in comparatively large quantities and then
resells, usually in small quantities, to a middleman or retailer,
but never to the ultimate consumer.
A.
Covered employers.
(1)
All covered employers, and the owners thereof, as
the case may be, that are recipients of compensation from the County
through any grant, loan, subsidy, funding, appropriation, payment,
tax incentive, contract, subcontract, license agreement, lease or
other financial compensation agreement issued by the County or an
awarding agency, where such compensation is one-hundred-percent funded
by the County, shall submit a completed sworn affidavit (under penalty
of perjury), the form of which is attached hereto as Exhibit A,[1] certifying that they have complied, in good faith, with
the requirements of Title 8 of the United States Code (U.S.C.) § 1324a
(Aliens and Nationality) with respect to the hiring of covered employees
and with respect to the alien and nationality status of the owners
thereof. The affidavit shall be executed by an authorized representative
of the covered employer or owner, as the case may be; shall be part
of any executed contract, subcontract, license agreement lease or
other financial compensation agreement with the County; and shall
be made available to the public upon demand.
[1]
Editor's Note: Said form is available in the
County offices.
(2)
All such covered employers, and the owners thereof,
as the case may be, shall not discriminate against any covered employee
or applicant for employment with respect to the hiring, or recruitment
or referral for a fee, of such covered employee or applicant for employment,
nor shall such covered employers, and the owners thereof, as the case
may be, discriminate against any covered employee because of race,
creed, color, national origin, sex, age, gender, disability, sexual
orientation, military status, or marital status, or, in the case of
a protected individual, because of such individual's citizenship status.
(3)
All such covered employers, and the owners thereof, as the case may be, shall not intimidate, threaten, coerce or retaliate against any covered employee or applicant for employment for the purpose of interfering with any right or privilege secured under 8 U.S.C. § 1324b. A covered employee or applicant for employment so intimidated, threatened, coerced or retaliated against shall be considered to have been discriminated against for purposes of § 134-3A(2) of this chapter.
B.
Contractors and subcontractors of covered employees.
(1)
All contractors and subcontractors of covered employers,
and the owners thereof, as the case may be, that are assigned to perform
work in connection with a County contract, subcontract, license agreement,
lease or other financial compensation agreement issued by the County
or awarding agency, where such compensation is one-hundred-percent
funded by the County, shall submit to the covered employer a completed
sworn affidavit (under penalty of perjury) the form of which is attached
hereto as Exhibit A,[2] certifying that they have complied, in good faith, with
the requirements of 8 U.S.C. § 1324a with respect to the
hiring of covered employees and with respect to the alien and nationality
status of the owners thereof, as the case may be. The affidavit shall
be executed by an authorized representative of the contractor, subcontractor,
or owner, as the case may be; shall be part of any executed contract,
subcontract, license agreement, lease or other financial compensation
agreement between the covered employer and the County; and shall be
made available to the public upon request.
[2]
Editor's Note: Said form is available in the
County offices.
(2)
All such contractors and subcontractors of covered
employers, and the owners thereof, as the case may be, shall not discriminate
against any employee or applicant for employment with respect to the
hiring, or recruitment or referral for a fee, of such employee or
applicant for employment, nor shall such contractors and subcontractors
of covered employers, and the owners thereof, as the case may be,
discriminate against any employee with respect to the discharge of
any employee, because of race, creed, color, national origin, sex,
age, gender, disability, sexual orientation, military status, or marital
status, or in the case of a protected individual, because of such
individual's citizenship status.
(3)
All such contractors and subcontractors of covered employers, and the owners thereof, as the case may be, shall not intimidate, threaten, coerce, or retaliate against any employee or applicant for employment for the purpose of interfering with any right or privilege secured under 8 U.S.C. § 1324b or because the employee or applicant for employment intends to file or has filed a charge or a complaint, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under 8 U.S.C. § 1324b. An employee or applicant for employment so intimidated, threatened, coerced, or retaliated against shall be considered to have been discriminated against for purposes of § 134-3B(2) of the chapter.
C.
Covered employer and owner sworn affidavits shall
be submitted to the awarding agency at the following times:
(1)
Upon application made to the County for any grant,
loan, subsidy, tax incentive funding, appropriation, payment or other
form of financial assistance;
(2)
Upon submission to the County of any response to a
County bid, request for proposals (RFP), request for qualifications
(RFQ), request for expression of interest (RFEI), or similar contract
letting process, including but not limited to letting for license
agreements, leases and other financial compensation agreements;
(3)
On January 1 of each year for the duration of the
County contract, subcontract, license agreement, lease or other financial
compensation agreement; and
(4)
Upon renewal and amendment of any County contract,
subcontract, license agreement, lease or other financial compensation
agreement.
D.
Contractor and subcontractor sworn affidavits shall
be submitted by the covered employer to the awarding agency at the
following times:
(1)
Within one week after the contractor or subcontractor
is hired by the covered employer to perform the work in connection
with the County contract, subcontract, license agreement, lease or
other financial compensation agreement;
(2)
In the event of a County contract, subcontract, license
agreement, lease or other financial compensation agreement that is
being renewed or amended where a contractor or subcontractor was previously
hired by a covered employer to perform work in connection with such
contract, subcontract, license agreement, lease or other financial
compensation agreement, upon such renewal or amendment; and
(3)
On January 1 of each year for the duration of the
County contract, subcontract, license agreement, lease or other financial
compensation agreement, provided that the contractor or subcontractor
was previously hired by the covered employer to perform work in connection
with such contract, subcontract, license agreement, lease or other
financial compensation agreement and is continuing to perform such
work.
A.
Any covered employer and the owners thereof, as the case may be, that establish that they have complied in good faith with the requirements of 8 U.S.C. § 1324a with respect to the hiring of covered employees and with respect to the alien and nationality status of the owners thereof, as the case may be, have established an affirmative defense that such covered employer and the owners thereof, as the case may be, have not violated § 134-3A(1) of this chapter with respect to such hiring and alien and nationality status of the owners thereof.
B.
Any contractor and subcontractor of a covered employer and the owners thereof, as the case may be, that establish that they have complied in good faith with the requirements of 8 U.S.C. § 1324a with respect to the hiring of covered employees and with respect to the alien and nationality status of the owners thereof, as the case may be, have established an affirmative defense that such contractor and subcontractor of the covered employer and the owners thereof, as the case may be, have not violated § 134-3B(1) of this chapter with respect to such hiring and alien and nationality status of the owners thereof.
A.
All covered employers and the owners thereof, as the case may be, shall verify that they have complied with the requirements of § 134-3 of this chapter based upon the categories of records, set forth below, copies of which shall be maintained by the covered employer to evidence compliance with this chapter:
(1)
United States passport; or
(2)
Resident alien card or alien registration card; or
(4)
Employment authorization documents, such as an H-1B
visa, H-2B visa, and L-1 visa or such other work visa as may be authorized
by the United States government at the time the County contract is
awarded for all covered employees; or
(5)
Birth certificate indicating that the person was born
in the United States.
B.
The documents reviewed and relied upon by the covered
employer, or the owners thereof, as the case may be, must appear on
their face to be genuine. Copies of such documents relied upon by
the covered employer, or the owners thereof, as the case may be, shall
be maintained by the covered employer for all covered employees for
the periods set forth below.
C.
Such records shall be maintained by the covered employer,
or the owners thereof, for the following minimum periods of time:
(1)
One year for a tax incentive;
(2)
Two years for a County grant, subsidy, or other financial
assistance;
(3)
Until such time the County loan is paid back in full;
and
(4)
Six years after the County contract, subcontract,
license agreement, lease or other financial compensation agreement
expires or is terminated.
D.
Authorized County employees shall be entitled to review
such records on a periodic basis as requested by the County or awarding
agency.
A.
No grant, loan, subsidy, tax incentive, funding, appropriation, payment, other financial assistance, contract, subcontract, license agreement, lease or other financial compensation agreement shall be awarded to a covered employer, or to the owners thereof, as the case may be, that does not certify that it has complied with 8 U.S.C. § 1324a and §§ 134-3 and 134-5 of this chapter, with respect to covered employees or with respect to alien and nationality status of the owners thereof, as the case may be. All county contracts, subcontracts, license agreements, leases and other financial compensation agreements awarded shall set forth the obligations of the covered employer and owners as enumerated in this chapter.
B.
All covered employers, or the owners thereof, as the
case may be, shall inform their contractors and subcontractors to
comply with the provisions of this chapter for as long as the covered
employer or owner, as the case may be, is in receipt of compensation.
Language indicating the contractor's and subcontractor's requirement
to comply shall be included in any contract or agreement between a
covered employer and its contractors and subcontractors. A copy of
such subcontracts or other agreements shall be submitted to the County
and made available to the public upon request.
A.
This chapter shall apply to all actions occurring
on or after January 1, 2009, and shall apply to:
(1)
All County contracts, subcontracts, license agreements,
leases and other financial compensation agreements entered into or
renewed after the applicability date of this chapter;
(2)
Amendments to all County contracts, subcontracts,
license agreements, leases and other financial compensation agreements
entered into after the applicability date of this chapter;
(3)
All loans, subsidies, tax incentive funding, appropriations,
payments, and other financial assistance provided by the County after
the applicability date of this chapter; and
(4)
A covered employer, or the owners thereof, as the
case may be, who is constructing public works for the County of Putnam
under a loan agreement and pursuant to County plans and specifications,
even though the project may not be one-hundred-percent County funded
due to federal and/or state aid that may be available.
A.
Notwithstanding any provision of law to the contrary, any covered employer, or the owners thereof, as the case may be, which submits a false, fictitious or fraudulent affidavit to the County or awarding agency in connection with § 134-3 or 134-6 of this chapter shall, upon conviction, be guilty of a Class A misdemeanor, punishable by a fine of not less than $250 nor more than $2,000, or up to six months imprisonment, or both. Each such violation shall constitute a separate and distinct offense.
B.
Notwithstanding any provision of law to the contrary, any covered employer, or the owners thereof, as the case may be, which violates any of the provisions of § 134-3 or 134-6 of this chapter, upon a first violation shall be subject to a civil penalty in an amount of not less than $250 nor more than $1,000, for each day such covered employee remains employed by the covered employer, or the owners thereof, as the case may be. Any covered employer, or the owners thereof, as the case may be, who violates any provisions of § 134-3 or 134-6 of this chapter as set forth herein within the period of one year immediately subsequent to the first violation shall result in a second violation, the civil penalty for which shall be in an amount of not less than $2,000 nor more than $5,000 for each day such covered employee remains employed by the covered employer or for each day the owners thereof shall remain an owner, as the case may be. Each such subsequent violation shall constitute a separate and distinct offense.
C.
Notwithstanding any provision of law to the contrary, any covered employer, or the owners thereof, as the case may be, which violates the provisions of § 134-5 of this chapter shall be subject to a civil penalty, in an amount not less than $250 nor more than $2,000.
D.
Any covered employer, or the owners thereof, as the case may be, which violates the provisions of § 134-3, 134-5 or 134-6 of this chapter, more than two times, shall have its contract, subcontract, license agreement, lease or other financial compensation agreement terminated immediately; and in the case of a County loan, subsidy or other form of financial assistance, same shall be declared in default for purposes of the County collecting on the full amount of the loan, subsidy or other form of financial assistance. In addition, such covered employers shall be barred from bidding on future County contracts and shall be ineligible to receive any future loans, subsidies or other financial assistance from the County.
E.
Any determination made hereunder by the County of
Putnam shall be reviewable pursuant to Article 78 of the Civil Practice
Law and Rules.
The Putnam County Department of Law shall promulgate rules and regulations as it deems necessary and appropriate for the implementation and enforcement of any provisions of this chapter. Such rules shall govern the conduct of adjudicatory proceedings and appeals taken pursuant to a proceeding commenced under Article 78 of the Civil Practice Law and Rules relating to the assessment of civil penalties herein authorized and such other penalties authorized under § 134-8D of this chapter. Such rules shall further provide for due process procedural mechanisms and any other mechanisms deemed necessary by the Putnam County Department of Law.
If any clause, sentence, paragraph, subdivision,
section, or part of this chapter or the application thereof to any
person, individual, corporation, firm, partnership, entity, or circumstance
shall be adjudged by any court of competent jurisdiction to be invalid
or unconstitutional, such order or judgment shall not affect, impair,
or invalidate the remainder thereof but shall be confined in its operation
to the clause, sentence, paragraph, subdivision, section, or part
of this chapter or in its application to the person, individual, corporation,
firm, partnership, entity or circumstance directly involved in the
controversy in which such order or judgment shall be rendered.
This Legislature, being the State Environmental
Quality Review Act (SEQRA) lead agency, hereby finds and determines
that this chapter constitutes a Type II action pursuant to Section
617.5(c)(20), (21), and/or (27) of Title 6 of the New York Code of
Rules and Regulations (6 NYCRR) and within the meaning of Subdivision
2, 8-01092, of the New York Environmental Conservation Law as a promulgation
of regulations, rules, policies, procedures, and legislative decisions
in connection with continuing agency administration, management and
information collection.
