FILED: NEW YORK COUNTY CLERK 08/28/2020 05:56 PM INDEX NO.

151032/2012
NYSCEF DOC. NO. 310 RECEIVED NYSCEF: 08/28/2020
Ol'l'ICE OF

THE INDUSTRIALCOMMISSIONER
..A.LBANY
DEPAR'MNT OF LABOR June 15, 1971
SENATE: 1943-A Introduced uy: Mr, Laverne
RECOMMENDATlON: Approval.

STATUTEINVOLVED: Labor Law, adding thereto a new article 1 to be Article 9.

EF'FECTIVE DATE: April 1, 1972.

DISCUSSION:

1. Purpose of bill:

To require the payment of prevailing wages and fringe benefits to employees who work
under the building service contracts with State and local governmental agencies.

2. Summary of provisions of bill:

The bill adds a new Article to the Labor Law, Article 9, Prevailing Wage for Building
Service Employees. It would require a contractor who has a building service contract
in excess of $2,500 with the State or with any State or local governmental agency to
pay the prevailing wage in the locality to his service employees. Prevailing wage would
include: (a) the basic hourly cash rate of pay; and (b) supplements or fringe benefits,
as determined by the fiscal officer. Locality is defined as the State, a town, city,
village or other civil division or area of the State, as determined by the fiscal
officer. The fiscal officer is the Industrial Commissioner outside of. cities, and in
cities the Comptroller is thi:! fiscal office::r. A building service employee is defined
as any person working in connection with the care or maintenance of an existing
building and includes, but is not limited to, a window cleaner, watchman, guard, doorman,
building cleaner, porter and handyman, janitor, gardener, groundskeeper, stationary
fireman, and elevator operator and starter, but does not include clerica~ sales,
professional, technician and related occupations.

Every building service contract would have to obligate the contractor to pay prevailing
wages. The fiscal officer is authorized to issue rules and regulations after a public
hearing and such rules could provide for reasonable variations, tolerances and
exemptions. In determining the prevailing wage the fiscal officer could utilize wage
and fringe data from various sources, including data and determi.nations of Fede:r:al,
State or other governmental agencies. (.

The provisions relating to procedures, penalties and discrimination (sex and age
disc.rimination have been added) are based on the provisions in Article 8 of the Labor
Law go~erning prevailing wages on public work projects.

The bill would become effective April 1, 1972.

3. .Prior legislative history:

In 1969 a bill would have extended coverage of the public work prevailing wage law
(Labor Law, Article 8) to all service employees (Laverne, S. 4468). The bill was passed
in the Senate and reached Third Reading in the Assembly.

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FILED: NEW YORK COUNTY CLERK 08/28/2020 05:56 PM INDEX NO. 151032/2012
NYSCEF DOC. NO. 310 RECEIVED NYSCEF: 08/28/2020

DEPAR'Jl1ENT
OF LABOR - 2 - June 15, 1.971
SENATE: 1943-A Introduced by: Mr. Laverne

In 1970 the E69 bill was amended to add a new Art:f.cle 9 to the Labor Law to require
the paym~nt of prevailing wages in the locality to service employees. Procedures for
determining prevailing wages were similar to those now existing for public work
projects (Laverne, S. 4468-B). The bill passed the Senate with a message of necessity
from the Governor, but did not come out of the Rules Committee.

In the current legislative session the 1970 bill has again been introduced and is
now pending (Laverne, S. 1943, same as Bersani: A. 3508).

4. Statements in support of bill:

This bill would extend to building service employees working under governmental
contracts the wage protection now afforded to laborers, workmen and mechanics employed
on public work projects. It would establish in New York State a standard now covered
for Federal governmental contracts by the Federal McNamara-O'Hara Service Contract Act.

Federal laws now require the payment of prevailing wages on contracts for public work
(Davis-Bacon), for purchase of supplies (Walsh-Healey}, and for service work under
public contracts (McNamara-O'Hara). State law requires prevailing wages only on public
work projects (Labor Law, Article 8). However, for the purchase of supplies the general
specifications of the State Office of General Services call for the payment of prevailing
wages. The attached bill would extend the prevailing wage concept to building service
contracts with State and local governmental agencies. It must be noted that gov·ernmental
contracts are awarded to the lowest bidder and that since labor costs are a predominant.
factor in most serv:i.ce contracts th'.? bidder with higher wage standardo is at a competitive
disadvantage.

Patterned afcer the Federal approach, the bill has several advantages over a bill
adopting the prevailing wage procedure in the public work law. First, the provisions t:n 0

the bill that leave to the administrative agency the defining of "prevailing wagelf and<l'lo ..
cality" and that permit the making of variations and ex~mptions as required make it
possible to conform and adjust the application of the law to priority needs and limita-
tions of available data. They avoid the exorbitant and probably prohibitive effort that
.would be required to proceed in accordance with the procedures of Article 8 of the Labor
Law.

Second, having a law an:lprocedural pattern that was similar to that governing Federal
service contracts in New York State would minimize confusion that might otherwise occur
among employer$ and workers and the State and Federal agencies involved.

Third, it would make possible the utilization of a substantial amount of wage and frin.ge
benefit data already available through established surveys of Federal and New York State
agencies.

!t must be noted that the bill :l.s limited to building servke employees, rather than
applying to all service employees working under public contracts.

5. Possible objections to bill:

Opposition to the proposal from financially hard-pressed municipalities may be expected.

Besides the additional expenditures that will be required in awarding building service
contracts municipalities may be confronted with demands from their dir~ct service
employees' for comparable wages. In the light of the burden that this bill would impose

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NYSCEF DOC. NO. 310 RECEIVED NYSCEF: 08/28/2020

DEPARTMENT OF LABOR - 3 -
June 15, 1971

SENATE: 1943-A Introduced by: Mr. Laverne

on municipalities, and in the absence of a clearly established it is questionable

need,
whether this bill is justified.

6. Other State agencies interested in bill:

All State agencies, as well as municipal agencies, and the State Office of General
Services will be interested in this bill. The bill also will affect employers who
provide building service work to governmental agencies.

7. Known position of others respecting bill:

The Building Service Employees Union, AFL-CIO, has strongly urged the adoption of a
prevailing wage for service employees. The State AFL-CIO has endorsed such a proposal.

Budgettimplications•
8.

The bill would not become effective until April 1, 1972 and no appropriation is provided
for fiscal year 1971-72. For subsequent fiscal years, it is estimated that costs under
this hill would probably not exceed $150,000.

The bill gives the Industrial Commissioner wide latitude in determining the contracts
. and. uccupátions within contracts for which determinations will be made (along with
broad discretion as to the use of available data and definition of locality) and if the
Industrial Commissioner cun limit his enforcement to cases of complaint or on some other
highly selective basis, then he can, to some extent, tailor his activities in carrying
out the law to what the budget provides. After a year or so of experience, the
Department would be.in a better position to know what commitments it could make as to
scope of prevailing wage determination, enforcement and budget.

uis L. vi
1 Commissioner .

. .

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