Town of Southeast, NY
Putnam County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Southeast as indicated in article histories. Amendments noted where applicable.]
[Adopted 7-24-2008 by L.L. No. 3-2008]

§ 59-1 Legislative intent.

A. 
This Town Board hereby finds that there has been an ongoing national debate regarding the unfairness and inequities 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. 
This Town Board 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. 
This Town Board 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, the Town of Southeast has an opportunity to lead by example in an effort to prod the federal government to undertake such enforcement action.
D. 
This Town Board 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. 
This Town Board further finds and determines that the Town of Southeast at present has no jurisdiction to enforce Simpson-Mazzoli.
F. 
This Town Board also finds and determines that the Town of Southeast has a finite amount of scarce taxpayer resources to expend, which resources shall be spent wisely and prudently.
G. 
This Town Board further finds that the Town of Southeast provides contracts, license agreements, leases and other forms of financial assistance to businesses that result in the creation and maintenance of a wide variety of employment opportunities in Southeast, thereby affording the Town 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.
H. 
Therefore, the purpose of this article is to provide a means of assisting the enforcement of the federal law requiring businesses to verify that their employees are legally eligible to be employed in the United States, by providing an enforcement mechanism at the Town level against noncompliant businesses that do business with the Town of Southeast, by:
(1) 
Helping to promote the federal policy of requiring employers to verify the employment status of potential employees;
(2) 
Helping to eliminate unfair competitive advantages between businesses;
(3) 
Helping to eliminate unfair labor practices and worker exploitation; and
(4) 
Helping to assure taxpayers that employers and employees are paying their fair share of taxes by complying with tax laws.

§ 59-2 Definitions.

As used in this article, the following terms shall have the meaning indicated:
ALIEN
Any person who is not a citizen or national of the United States.
AWARDING AGENCY
The Town Board or the subordinate or component entity or person of the Town of Southeast 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.
A. 
Any 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 Town of Southeast including, but not limited to, Industrial Development Agency (IDA) loans; and
B. 
Any contract, subcontract, license agreement, lease or other financial compensation agreement let to a person with or by the Town of Southeast for the furnishing of services, goods, equipment, supplies, materials, public works, or other property to or for the Town of Southeast.
CONTRACTOR
A person who contracts to do work for another. This term does not include wholesalers.
COVERED EMPLOYEE
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.
COVERED EMPLOYER
A recipient of, or an applicant for, compensation that is not exempt from this article, and who has at least one covered employee working within the Town of Southeast.
PERSON
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, trusts, unincorporated organizations, trustees, trustees in bankruptcy, receivers, fiduciaries and other entities recognized at law by this Town.
PROTECTED INDIVIDUAL
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 Title 8 U.S.C. § 1160(a) or § 1255a(a)(1), is admitted as a refugee under Title 8 U.S.C. § 1157, or is granted asylum under Title 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 the enactment of Title 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 the application, unless the alien can establish that the Alien is actively pursuing naturalization.
RECIPIENT
Any person or entity that is a recipient of compensation, as defined in this article, 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.
SEASONAL
A period of time not to exceed 90 consecutive days at any given time within a six-month period.
SUBCONTRACTOR
A person who takes portions of a contract from a covered employer, a contractor or another subcontractor. This term does not include wholesalers.
TOWN
The Town of Southeast, any agency, office, position, administration, department, division, bureau, board, commission, corporation, public authority, special district or unit of government, the expenses of which are paid in whole or in part by the Town of Southeast or over which majority control is exercised by officers of the Town of Southeast or of a Town-affiliated agency or their appointees.
WHOLESALER
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.

§ 59-3 Requirements.

A. 
Covered employees.
(1) 
All covered employers, and the owners thereof, as the case may be, that are recipients of compensation from the Town through any grant, loan, subsidy, funding, appropriation, payment, tax incentive, contract, subcontract, license agreement, lease or other financial compensation agreement issued by the Town or an awarding agency, where such compensation is 100% funded by the Town, shall submit a completed sworn affidavit (under penalty of perjury), the form of which is annexed hereto as Appendix A,[1] certifying that they have complied, in good faith, with the requirements of Title 8 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 Town; and shall be made available to the public upon request.
[1]
Editor's Note: Appendix A is attached to L.L. No. 3-2008 and on file in the office of the Town Clerk.
(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 with respect to the discharge of such 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 Title 8 U.S.C. § 1324b or because the covered employee or applicant for employment intends to file or has filed a charge or a complaint, testified, assisted, or participated in a manner in an investigation, proceeding, or hearing under Title 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 § 59-3A(2) of this article.
B. 
Contractors and subcontractors.
(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 Town contract, subcontract, license agreement, lease or other financial compensation agreement issued by the Town or awarding agency, where such compensation is 100% funded by the Town, shall submit to the covered employer a completed sworn affidavit (under penalty of perjury), the form of which is annexed hereto as Appendix A,[2] certifying that they have complied, in good faith, with the requirements of Title 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 Town; and shall be made available to the public upon request.
[2]
Editor's Note: Appendix A is attached to L.L. No. 3-2008 and on file in the office of the Town Clerk.
(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 such 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 Title 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 a manner in an investigation, proceeding, or hearing under Title 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 § 59-3B(2) of this article.
C. 
Covered employer and owner sworn affidavits shall be submitted to the awarding agency at the following times:
(1) 
Upon application made to the Town for any grant, loan, subsidy, tax incentive funding, appropriation, payment, or other form of financial assistance;
(2) 
Upon submission to the Town of any response to a Town bid, request for proposals (RFP), request for qualifications (RFQ), request for expressions of interest (RFEI), or similar contract letting process, including but limited to letting for license agreements, leases and other financial compensation agreements;
(3) 
On January 1 of each year for the duration of the Town contract, subcontract, license agreement, lease or other financial compensation agreement; and
(4) 
Upon renewal and amendment of any Town 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 Town contract, subcontract, license agreement, lease or other financial compensation agreement;
(2) 
In the event of a Town 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 Town 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.

§ 59-4 Affirmative defense.

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 Title 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 § 59-3A(1) of this article 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 Title 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 § 59-3B(1) of this article with respect to such hiring and alien and nationality status of the owners thereof.

§ 59-5 Maintenance of records.

A. 
All covered employers and the owners thereof, as the case may be, shall verify that they have complied with the requirements of § 59-3 of this article based upon the categories of records, set forth below, copies of which shall be maintained by the covered employer to evidence compliance with this article:
(1) 
United States passport;
(2) 
Resident alien card or alien registration card;
(3) 
Driver's license, if it contains a photograph of the individual; and a social security account number card (other than such a card which specifies on its face that the issuance of the card does not authorize employment in the United States);
(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 Town contract is awarded for all covered employees; or
(5) 
Birth certificate indicating that 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 owners thereof, for the following minimum periods of time:
(1) 
One year for a tax incentive;
(2) 
Two years for a Town grant, subsidy or other financial assistance;
(3) 
Until such time the IDA loan is paid back in full; and
(4) 
Six years after the Town contract, subcontract, license agreement, lease or other financial compensation agreement either expires or is terminated.
D. 
Authorized Town employees shall be entitled to review such records on a periodic basis as requested by the Town or awarding agency.
E. 
The Town shall ensure that employees reviewing such records are briefed by Town Counsel in order to ensure that such audits are done in compliance with all applicable law. Procedures should be adopted by the Town to ensure that such audits are not discriminatory and to ensure that sensitive personal information is not released unlawfully.

§ 59-6 Town contracts; subcontractor contracts.

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 the owners thereof, as the case may be, that does not certify that it has complied with Title 8 U.S.C. § 1324a and §§ 59-3 and 59-5 of this article, with respect to its covered employees or with respect to the alien and nationality status of the owners thereof, as the case may be. All Town 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 article.
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 article 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 Town and made available to the public upon request.

§ 59-7 Applicability.

A. 
This article shall apply to all actions occurring on or after June 1, 2008, and shall apply to:
(1) 
All Town contracts, subcontracts, license agreements, leases and other financial compensation agreements entered into or renewed after the applicability date of this article;
(2) 
Amendments to all Town contracts, subcontracts, license agreements, leases and other financial compensation agreements entered into after the applicability date of this article;
(3) 
All loans, subsidies, tax incentives funding, appropriations, payments, and other financial assistance provided by the Town after the applicability date of this article; and
(4) 
A covered employer, or the owners thereof, as the case may be, who is constructing public works for the Town under a loan agreement and pursuant to Town plans and specifications, even though the project may not be 100% County funded due to federal and/or state aid that may be available.
B. 
This article shall not apply as follows:
(1) 
Section 59-3B of this article shall not apply to the subcontractors of not-for-profit corporations or the subcontractors or the owners thereof, as the case may be, as that term is defined in the New York State Not-For-Profit Corporation Law.

§ 59-8 Enforcement; penalties for offenses.

A. 
Notwithstanding any provision of law to the contrary, any covered employer, or the owners thereof, as the case may be, who submits a false, fictitious or fraudulent affidavit to the Town or awarding agency in connection with § 59-3 or 59-6 of this article 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, who violates any of the provisions of § 59-3 or 59-6 of this article, upon a first violation shall be subject to a civil penalty, in an amount not less than $250.00 nor more than $1,000.00, 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. Any covered employer, or the owners thereof, as the case may be, who violates any of the provisions of § 59-3 or 59-6 of this article 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 of which shall be in an amount not less than $1,000 nor more than $2,500 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 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, who violates the provisions of § 59-5 of this article 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, who violates the provisions of § 59-3, 59-5, or 59-6 of this article, 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 Town IDA loan, subsidy or other form of financial assistance, same shall be declared in default for purposes of the Town 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 Town contracts and shall be ineligible to receive any future loans, subsidies or other financial assistance from the Town.
E. 
Any determination made hereunder by the Town shall be reviewable pursuant to Article 78 of the Civil Practice Law and Rules.