[Adopted 12-19-2006 by L.L. No. 32-2006, effective 12-27-2006]
A.
The 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. The 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. The Town Board
further finds and determines that there has been a lack of enforcement
of a twenty-year old federal law (Immigration Reform and Control Act
of 1986) that requires businesses to verify that their employees are
legally eligible to be employed in the United States.
B.
The 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. The
Town Board further finds and determines that the Town at present has
no jurisdiction to enforce the federal law, even against businesses
that are one-hundred-percent funded by the Town.
C.
The Town Board also finds and determines that the
Town has a finite amount of scarce taxpayer resources to expend, which
resources shall be spent wisely and prudently. The Town further finds
that the Town provides contracts and agreements with businesses that
result in the creation and maintenance of a wide variety of employment
opportunities in the Town, thereby affording the Town the opportunity
to utilize its economic and financial leverage to compel businesses
to comply with the federal law requiring businesses to verify that
their employees are legally eligible to be employed in the United
States.
D.
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 are one-hundred-percent
funded by the Town, thereby:
(1)
Helping to promote the federal policy of requiring
employers to verify 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.
For purposes of this article, the following
definitions shall apply:
Any person who is not a citizen or national of the United
States.
The Town Board or authorized department or entity or authorized
person of the Town that is responsible for solicitation of proposals
or bids and responsible for the award and administration of contracts
and agreements.
Payment of monies or funds, including but not
limited to Community Development Block Grants, to a covered employer,
the owners thereof, or contractor or subcontractor by or through the
authority or approval of the Town of Brookhaven.
Any contract, subcontract or agreement with
or by the Town of Brookhaven for the furnishing of services, goods,
equipment, supplies, materials or public works.
A person who contracts to do work for another. This term
shall not include wholesalers.
An individual employed on either a full-time, part-time,
temporary or seasonal basis by a covered employer to perform work
for the project or matter for which the recipient has received compensation.
A recipient of compensation, including any contractor or
subcontractor that receives compensation from the Town, that is not
exempt from this chapter and who has at least one covered employee
working within the Town, or at least one 50% or more owner living
within the Town. This term shall include the officers, board of directors,
members or partners of a covered employer.
One or more of the following: agents, employees, representatives
and legal representatives, individuals, corporations, partnerships,
joint ventures, associations, labor organizations or firms.
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. Section 1160(a), and any amendments
thereto, or Section 1255a(a)(1), and any amendments thereto, is admitted
as a refugee under Title 8 U.S.C. Section 1157, and any amendments
thereto, or is granted asylum under Title 8 U.S.C. Section 1158, and
any amendments thereto; 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. Section 1324b, and any
amendments thereto; 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.
Any person, entity, owner, employer, contractor and/or subcontractor
that receives 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 in connection with
a Town contract or agreement.
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 shall include
independent contractors, but shall not include wholesalers.
A person who buys in comparatively large quantities, and
resells, usually in small quantities, to a middleman or retailer,
but not to the ultimate consumer.
A.
The requirements under this article shall apply, commencing
on or after January 1, 2007, as follows:
(1)
All Town contracts, subcontracts, agreements, entered
into or renewed after the applicability date of this article;
(2)
Amendments to all Town contracts, subcontracts, agreements,
entered into after the applicability date of this article;
(3)
A covered employer, owner, contractor and/or subcontractor,
as the case may be, constructing public works for the Town pursuant
to Town plans and specifications, even though the project may not
be one-hundred-percent Town funded due to any federal and/or state
aid that may be available. For the purposes of this article, projects
receiving federal and/or state aid/grants shall be deemed one-hundred-percent
Town-funded projects.
B.
The provisions of this article, shall not apply to
not-for-profit corporations or the contractors or subcontractors of
the not-for-profit corporations as that term is defined under New
York Not-For-Profit Corporation Law, and any amendments thereto.
A.
The following certification requirements shall be
complied with:
(1)
All covered employers, owners, contractors and/or
subcontractors thereof, as the case may be, that are recipients of
compensation from the Town through any contract, subcontract or agreement
issued by the Town or an awarding agency, authorized department or
authorized person, where such compensation is one-hundred-percent
funded by the Town, shall submit a completed sworn affidavit (under
penalty of perjury), the form of which shall be established by the
Town Attorney's Office, certifying that they have complied, in good
faith, with the requirements of Title 8 of the United States Code
(U.S.C.) Section 1324a, and any amendments thereto, with respect to
the hiring of covered employees and further certify with respect to
the lawful alien status of the covered employer(s) and owner(s) thereof.
The affidavit shall be executed by an authorized representative of
the covered employer, owner or contractor or subcontractor, as the
case may be; shall be part of any executed contract, subcontract,
agreement with the Town; and shall be made available to the public
upon request.
B.
Covered employer, owner, contractor or subcontractor
sworn affidavits shall be submitted to the Town at the following times:
(1)
Upon application made to the Town for any payment,
funds, in connection with a contract, subcontract or agreement covered
under this article;
(2)
Upon submission to the Town of any response to a Town
bid, request for proposals (RFP), request for qualifications (RFQ),
or similar contract letting process;
(3)
On January 1 of each year for the duration of the
Town contract, subcontract or agreement; and
(4)
Prior to execution or renewal and/or amendment of
any Town contract, subcontract or agreement with the Town; and
(5)
Within one week after the subcontractor is hired by
the covered employer to perform the work in connection with the Town
contract, subcontract or agreement;
(6)
In the event of a Town contract, subcontract, or 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 or agreement, upon such renewal or
amendment; and
(7)
On January 1 of each year for the duration of the
Town contract, subcontract or agreement, provided that the contractor
or subcontractor was previously hired by the covered employer to perform
work in connection with such contract, subcontract, agreement, and
is continuing to perform such work.
A.
All such covered employers, owners, contractors or
subcontractors 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,
the owners thereof, contractors or subcontractors, 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.
B.
All such covered employers, owners thereof, contractors or subcontractors, 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. Section 1324b, and any amendments thereto, 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. Section 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 Subsection A above.
Any covered employer, contractor or subcontractor or 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. Section 1324a, and any amendments thereto, with respect to the hiring of covered employees and with respect to the alien and nationality status of the covered employees, as the case may be, have established an affirmative defense that such covered employer, owners thereof, contractor or subcontractor, as the case may be, have not violated § 7A-4 of this article with respect to such covered employer, owner, contractor or subcontractor hiring an unauthorized alien.
A.
All covered employers, owners thereof, contractors or subcontractors, as the case may be, shall verify that they have complied with the requirements of § 7A-4 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; or
(2)
Resident alien card or alien registration card; or
(3)
A 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); or
(4)
Employment authorization documents, such as an H-1
B 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 the person was born
in the United States.
B.
The documents reviewed and relied upon by the covered
employer, or the owners thereof, contractor or subcontractor, as the
case may be, must appear on their face to be genuine. Copies of such
documents relied upon by the covered employer, the owners thereof,
contractor or subcontractor, 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, contractor or subcontractor thereof, for the following
minimum periods of time:
(1)
Six years after the Town contract, subcontract or
agreement, or other 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.
A.
No payment of funds for any contract, subcontract,
or agreement shall be awarded to a covered employer, the owners thereof,
contractor or subcontractor, as the case may be, that does not certify
that it has complied with Title 8 U.S.C. Section 1324a, and any amendments
thereto, and this article, with respect to its covered employees.
All Town contracts, subcontracts, or agreements awarded shall set
forth the obligations as enumerated in this article.
B.
All covered employers, the owners thereof, contractor
or subcontractor, 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, owner, contractor or subcontractor,
as the case may be, is in receipt of compensation. Language indicating
compliance requirements shall be included in any contract or agreement
between a covered employer and its contractors and subcontractors.
A copy of such contracts, subcontracts or other agreements shall be
submitted to the Town and made available to the public upon request.
A.
Notwithstanding any provision of law to the contrary, any covered employer, owners thereof, contractor or subcontractor, as the case may be, who submits a false, fictitious or fraudulent affidavit to the Town or awarding agency, authorized department or authorized person in connection with § 7A-4 and § 7A-8 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, owners thereof, contractor or subcontractor, as the case may be, who violates any of the provisions of § 7A-4 and § 7A-8, upon a first violation shall be subject to a civil penalty, in an amount not less than $250 nor more than $1,000, for each day such covered employee remains employed by the covered employer, contractor or subcontractor, or for each day the owners thereof shall remain an owner, as the case may be. Any covered employer, contractor or subcontractor, or the owners thereof, as the case may be, who violates any of the provisions of § 7A-4 and § 7A-8 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 $2,000 nor more than $5,000 for each day such covered employee remains employed by the covered employer, contractor or subcontractor, 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, the owners thereof, contractor or subcontractor, as the case may be, who violates the provisions of § 7A-7 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, contractor or subcontractor, as the case may be, who violates the provisions § 7A-4, § 7A-7 and § 7A-8 of this article, more than two times, shall have its contract, subcontract, or agreement terminated immediately; and, in the case of a Town form of compensation, same shall be declared in default for purposes of the Town collecting on the full amount of compensation. In addition, such covered employers or contractors shall be barred from entering into any future agreement or contract with the Town or bidding on future Town contracts for five years. Any subcontractor that violates the provisions § 7A-4, § 7A-7 and § 7A-8 shall not be approved as a subcontractor on future Town contracts or agreements.
E.
Any determination made hereunder by the Town shall
be reviewable pursuant to Article 78 of the Civil Practice Law and
Rules.
The Commissioner of Finance, Director of Purchasing,
together with the Town Attorney, shall promulgate such rules and regulations,
as it deems necessary and appropriate, for the implementation and
enforcement of any provisions of this article.
If any clause, sentence, paragraph, subdivision,
section, or part of this article 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 article, 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.
