[Adopted 8-14-2007 by L.L. No. 17-2007, effective 8-20-2007]
A.
The Town Board hereby finds that there has been unfairness
and inequities between employers that comply with the requirements
of Article 8 and Article 9 of the New York State Labor Law regarding
the payment of prevailing wage laws in connection with 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
New York State Labor Law (prevailing wages) and Workers' Compensation
Law in connection with their employees while, in turn, providing an
unfair financial advantage to those employers who do not comply with
the applicable laws.
B.
The Town Board finds and determines that employer
noncompliance with applicable New York State law results in diminished
protections of employees from unfair labor practices and fosters the
circumvention of not only prevailing wages, but further circumvents
providing employees protection in the form of workers' compensation
and unemployment insurance.
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, prudently and in compliance with
existing New York State law. The Town Board 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 placing upon the Town the responsibility to ensure
that businesses and contractors doing business with the Town demonstrate
compliance with the New York State Labor Law by properly classifying
workers as employees rather than as independent contractors, ensuring
that workers receive prevailing wages, workers' compensation insurance,
unemployment insurance, and by verifying that their employees are
being paid prevailing wages and further requiring that employers have
the required workers' compensation insurance and unemployment insurance.
D.
Therefore, the purpose of this article is to provide
a means of demonstrating compliance with the New York State Labor
Law by requiring businesses to verify that their employees are paid
prevailing wages, that businesses maintain workers' compensation insurance
and unemployment insurance, and this article further provides an enforcement
mechanism at the Town level against noncompliant businesses, thereby:
(1)
Helping to promote employees receipt of equitable
wages, prevailing wages, workers' compensation and unemployment insurance;
(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 have the following meanings as set forth herein:
The Town Board or authorized department or authorized person
of the Town that is responsible for solicitation of bids, quotes or
proposals and responsible for the award and administration of applicable
contracts.
The payment of monies to any person, including but not limited
to a contractor or subcontractor, for any Town public work project.
Any contract, agreement, requisition, purchase order or work
order that involves the employment of laborers, workmen or mechanics
for public work, as defined under New York State Labor Law, Article
8 (and any amendments thereto); and any contract, agreement, requisition,
purchase order or work order involving work performed by building
service employees, as defined under New York State Labor Law Article
9 (and any amendments thereto).
Any person awarded a contract by the Town awarding agency
subject to the requirements of Article 8 or Article 9 of the New York
State Labor Law, and the requirements of the Workers' Compensation
Law (and any amendments thereto).
The employment of any laborer, worker or mechanic covered
under Article 8 or building service employees covered under Article
9 of the New York State Labor Law, and any amendments thereto, which
requires the payment of prevailing wages as applicable.
Any owner-operated business having a direct contract with
a contractor to perform work in connection with a Town contract, as
authorized by the Town in writing.
One or more of the following: any individual, owner, entity,
corporation, agent, company, parent company, subsidiary, limited-liability
company, substantially owned affiliated entity, successor, partnership,
joint venture, association, legal representative or any other form
of doing business.
A person, as approved by the Town in writing, having a direct
contract with the contractor involving any part of a Town contract.
The requirements under this article shall apply
as follows:
A.
All Town contracts for the construction, replacement,
maintenance and repair of public works, as defined under New York
State Labor Law, Article 8 (and any amendments thereto), and any Town
contract performed by building service employees, as defined under
New York State Labor Law Article 9 (and any amendments thereto), which
said contracts are entered into, renewed or amended after the effective
date of this article.
B.
All contracts, subcontracts or contracts with independent
contractors, as authorized by the Town, which involve any portion
of the Town contract work, entered into, renewed or amended after
the effective date of this article.
C.
All awarded Town contracts shall set forth the obligations
as enumerated in this article.
A.
All contractors and subcontractors, as authorized
herein, that commence work pursuant to a Town contract issued by a
Town awarding agency where such compensation is funded, in whole or
in part, by the Town, shall comply with the following provisions herein
and shall complete a sworn affidavit (under penalty of perjury), the
form of which shall be established by the Town Attorney's office,
certifying compliance with the following:
(1)
The contractor has the ability, to the Town's satisfaction,
to substantially complete the subject contract work;
(2)
The contractor complies with the requirements of New
York State Labor Law, and any amendments thereto, with respect to
the payment of prevailing wages;
(3)
Subcontractors.
(a)
Prior to any contractor hiring or retaining
any subcontractor to perform any portion of the contract work, the
contractor must submit to the commissioner of the authorizing Town
department or to the Town-retained engineer the name of the subcontractor
and the work to be performed. The contractor shall be required to
and shall have obtained the written approval of the commissioner of
the authorizing Town department prior to the hiring or retaining of
any subcontractor in connection with the Town contract;
(b)
The subcontractor shall submit an affidavit,
under penalty of perjury, that it has sufficient employees to perform
the authorized work and that the subcontractor has complied with the
requirements of New York State Labor Law, and any amendments thereto,
with respect to the payment of prevailing wages; and
(c)
The authorized subcontractor shall be prohibited
from and has not hired or retained another subcontractor or any independent
contractor. The authorized subcontractor must have sufficient employees
for the contract work.
B.
In the event that the contractor or authorized subcontractor
does not have any employees, the contractor or subcontractor 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 said contractor or authorized subcontractor does not
have any employees as defined under applicable law, including New
York State Law Labor, Article 8 and Article 9, and New York State
Workers' Compensation Law, and that said contractor or authorized
subcontractor performs the contract work alone.
C.
The executed affidavit by the contractor and authorized
subcontractor shall be part of any approved contract with the Town;
and shall be made available to the public upon request.
D.
All contractors and/or authorized subcontractors shall
submit certified payroll records to the Town Department of Finance
as required by law.
A.
All contractors and their independent contractors,
as authorized herein, that commence work pursuant to a Town contract
issued by a Town awarding agency where such compensation is funded,
in whole or in part, by the Town shall comply with the following provisions
herein and shall complete a sworn affidavit (under penalty of perjury),
the form of which shall be established by the Town Attorney's office,
certifying compliance with the following:
(1)
Prior to any contractor hiring or retaining an independent
contractor to perform any portion of the contract work, the contractor
must submit to the commissioner of the authorizing Town department
or to the Town-retained engineer the name of the independent contractor,
and the work to be performed.
(2)
The contractor shall be required to and shall have
obtained the written approval of the Commissioner of the authorizing
Town department prior to the hiring or retaining of any independent
contractor in connection with the Town contract;
B.
The independent contractor shall be prohibited from
hiring or retaining any other independent contractor or subcontractor
to perform the work. The independent contractor shall submit a completed
sworn affidavit, under penalty of perjury, the form of which shall
established by the Town Attorney's office, certifying that said independent
contractor does not have any employees as defined under applicable
law, including New York State Labor Law, Article 8 and Article 9,
and New York State Workers' Compensation Law, and that said independent
contractor performs the contract work alone.
A.
Sworn affidavits, in compliance with §§ 7A-15 and 7A-16 above, in addition to any other requirements, shall be submitted to the Town by any contractor, authorized subcontractor and/or authorized independent contractor as applicable, at the following times:
(1)
Upon submission to the Town of any response to a Town
bid, request for proposals (RFP), request for qualifications (RFQ),
or similar Town procurement process;
(2)
The contractor shall submit the subcontractor's and
independent contractor's affidavit of compliance at the time of bid
submission or response to any Town procurement request,
(3)
Upon submission of any invoice or application made
to the Town for compensation in connection with a contract, subcontract
or contract with an independent contractor covered under this article;
and
(4)
Prior to execution, renewal and/or amendment of any
Town contract.
B.
All contractors shall inform their authorized subcontractors or authorized independent contractors to comply with the provisions of this article. Any contract or agreement between a contractor and its authorized subcontractors or authorized independent contractor shall include language indicating the compliance requirements. A copy of such contracts or subcontracts or other agreements shall be submitted to the Town at the times set forth in Subsection A and made available to the public upon request.
C.
The contractor's failure to submit the required affidavits
and proof in accordance with this article may result in the contract
being suspended and/or terminated.
D.
The contractor shall comply with and shall be responsible
to ensure that all subcontractors and independent contractors comply
with applicable law, and the failure to comply with applicable law
shall be reported to the necessary authorities, including but not
limited to the New York State Department of Labor and the Internal
Revenue Service, and may further result in the termination of the
contract for noncompliance with applicable laws.
A.
No payment of funds for any contract, subcontract
or contract with an independent contractor shall be paid without submission
of the required documents, including but not limited to an affidavit(s)
certifying compliance with this article, and any amendments thereto,
and a copy of the Commissioner of the authorizing Town department's
written approval for the hiring or retaining of the subcontractor
or independent contractor, as required.
B.
A copy of the signed contract between the contractor
and approved subcontractor and/or approved independent contractor
shall be submitted to the Town Department of Finance with its submission
for payment and retained on file.
C.
Failure to submit the requirement documents to the
Department of Finance shall result in the denial of payment.
A.
Notwithstanding any provision of law to the contrary, any contractor or subcontractor who submits a false, fictitious or fraudulent affidavit to the Town or awarding agency in connection with § 7A-15, § 7A-16 and/or § 7A-17, or any independent contractor who submits a false, fictitious or fraudulent affidavit in connection with § 7A-16, shall be subject to a civil penalty, in amount not less than $1,000 nor more than $5,000. Each such violation shall constitute a separate and distinct offense. Any false, fictitious or fraudulent affidavit shall be referred to the appropriate authorities, including but not limited to the Suffolk County District Attorney's Office.
B.
Notwithstanding any provision of law to the contrary, any contractor or subcontractor, who fails to comply with any of the provisions of § 7A-15, § 7A-16 and/or § 7A-17, or independent contractor who fails to comply with any provisions of § 7A-16, upon a first violation shall be subject to a civil penalty, in an amount not less than $1,000 nor more than $5,000, for each day such covered employee remains on the Town job site employed by the contractor or subcontractor or independent contractor. Any contractor or subcontractor who fails to comply with any of the provisions of § 7A-15, § 7A-16 and/or § 7A-17, or independent contractor who fails to comply with any provision of § 7A-16, of this article as set forth herein within the period of six months 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 $5,000 nor more than $8,000 for each day such covered employee remains on the Town job site employed by the contractor or subcontractor or independent contractor. Each such violation shall constitute a separate and distinct offense.
C.
Any contractor that violates the provisions § 7A-15, § 7A-16 and/or § 7A-17 of this article, more than two times, shall have its contract terminated immediately; and, in the case of a Town form of compensation, it shall be declared in default for purposes of the Town collecting on the full amount of compensation.
D.
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, 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.
