STATE OF NEW YORK ________________________________________________________________________ 4036--A 2025-2026 Regular Sessions IN ASSEMBLY January 30, 2025 ___________ Introduced by M. of A. BRONSON -- read once and referred to the Commit- tee on Labor -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the labor law, in relation to prevailing wage require- ment for not-for-profit theaters and payment of their employees on productions funded by the New York state council on the arts or arts agencies of localities; and to amend the arts and cultural affairs law, in relation to requiring that an organization applying for grant funding shall provide to arts agencies a certification that it will enter into a labor peace agreement with at least one bona fide labor organization under certain circumstances The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The labor law is amended by adding a new article 8-B to 2 read as follows: 3 ARTICLE 8-B 4 PREVAILING WAGE REQUIREMENT FOR NOT-FOR-PROFIT THEATERS 5 Section 228. Definitions. 6 228-a. Prevailing wage requirement for not-for-profit theaters 7 and payment of their employees on productions funded by 8 the New York State council on the arts or arts agencies 9 of localities; record keeping. 10 228-b. Powers of the fiscal officer. 11 228-c. Investigation and hearing. 12 228-d. Failure to protest underpayments. 13 228-e. Statements showing amounts due for wages. 14 228-f. Provisions in contracts prohibiting discrimination on 15 account of race, creed, color, national origin, age, 16 sex or disability. 17 228-g. Penalties. 18 228-h. Enforcement of article. 19 § 228. Definitions. As used in this article: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD05274-02-5
A. 4036--A 2 1 1. "Arts agency" means any public agency of New York state or of a 2 locality of New York state that provides grants to productions at not- 3 for-profit theaters. 4 2. "Contract" means any agreement between a production and an arts 5 agency to grant funds to such production. 6 3. "Contractor" or "subcontractor" means a production that is a recip- 7 ient of a grant from an arts agency. 8 4. "Employee" means an employee of a not-for-profit theater that 9 receives a grant award from an arts agency including but not limited to 10 actors, stage managers, production assistants, scenic artists, scenic 11 designers, costume designers, lighting designers, sound designers, 12 projection designers, graphic artists, art and costume department coor- 13 dinators, ushers, ticket takers, line directors, press agents, company 14 managers, theatre managers, engineers, musicians, singers, choreogra- 15 phers, dancers, staging staff, ballet school faculty, directors, fight 16 directors, intimacy directors, dressers, wardrobers, costumers, stitch- 17 ers, tailors, drapers, shoppers, laundry workers, dyers, costume techni- 18 cians, milliners, craftspeople, child actors, guardians, box office 19 treasurers, first assistants, and ticket sellers employed on a 20 production funded by an arts agency. 21 5. "Entity" means a partnership, association, joint venture, company, 22 sole proprietorship, corporation or any other form of doing business. 23 6. "Fiscal officer" means the comptroller of the state of New York or 24 other analogous officer of the governing body of an arts agency. 25 7. "Grant" means any capital and/or operational grant made to 26 productions funded by an arts agency. 27 8. "Locality" means the state, or a town, city, village or other civil 28 division or area of the state as determined by the fiscal officer. The 29 fiscal officer may fix a different geographic area in determining the 30 locality for the prevailing basic hourly cash rate of pay and the local- 31 ity for prevailing supplements. 32 9. "Not-for-profit theater" means a theater operating as a not-for- 33 profit entity pursuant to New York state laws with a seating capacity of 34 at least one hundred. 35 10. "Parent company" means an entity that directly controls the 36 contractor or subcontractor. 37 11. "Prevailing practices in the locality" means the practice of 38 providing supplements by virtue of collective bargaining agreements 39 between bona fide labor organizations that represent employees of not- 40 for-profit theaters including but not limited to actors, stage managers, 41 production assistants, scenic artists, scenic designers, costume design- 42 ers, lighting designers, sound designers, projection designers, graphic 43 artists, art and costume department coordinators, ushers, ticket takers, 44 line directors, press agents, company managers, theatre managers, engi- 45 neers, musicians, singers, choreographers, dancers, staging staff, 46 ballet school faculty, directors, fight directors, intimacy directors, 47 dressers, wardrobers, costumers, stitchers, tailors, drapers, shoppers, 48 laundry workers, dyers, costume technicians, milliners, craftspeople, 49 child actors, guardians, box office treasurers, first assistants, and 50 ticket sellers provided that said employers employ at least thirty per 51 centum of such employees in the locality, as determined by the fiscal 52 officer in accordance with the provisions herein. With respect to each 53 supplement determined to be one of the prevailing practices in the 54 locality, the amount of such supplement shall be determined in the same 55 manner and at the same time as the prevailing rate of wage is determined 56 pursuant to this section.
A. 4036--A 3 1 12. "Prevailing wage" means the rate of compensation paid by a 2 production, by virtue of collective bargaining agreements between bona 3 fide labor organizations that represent employees of not-for-profit 4 theaters including but not limited to actors, stage managers, production 5 assistants, scenic artists, scenic designers, costume designers, light- 6 ing designers, sound designers, projection designers, graphic artists, 7 art and costume department coordinators, ushers, ticket takers, line 8 directors, press agents, company managers, theatre managers, and employ- 9 ers of such employees performing work on a production funded by an arts 10 agency where such labor organization represents at least thirty per 11 centum of employees in the locality where such work is being performed. 12 The prevailing rate of wage shall be annually determined in accordance 13 herewith by the fiscal officer no later than thirty days prior to July 14 first of each year, and the prevailing rate of wage for the period 15 commencing July first of such year through June thirtieth, inclusive, of 16 the following year shall be the rate of wage set forth in such collec- 17 tive bargaining agreements for the period commencing July first through 18 June thirtieth, including those increases for such period which are 19 directly ascertainable from such collective bargaining agreements by the 20 fiscal officer in such officer's annual determination. In the event 21 that it is determined after a contest, as provided in section two 22 hundred twenty-eight-c of this article, that less than thirty percent of 23 the employees in the locality where the work is being performed receive 24 a collectively bargained rate of wage, then the average wage paid to 25 such employees in the locality for the twelve-month period preceding the 26 fiscal officer's annual determination shall be the prevailing rate of 27 wage. Employees for whom a prevailing rate of wage is to be determined 28 shall not be considered in determining such prevailing wage. 29 13. "Production" means a corporation, partnership, limited partner- 30 ship, or other entity or individual that provides compensation to an 31 employee. 32 14. "Substantially-owned affiliated entity" means the parent company 33 of the contractor or subcontractor, any subsidiary of the contractor or 34 subcontractor, or any entity in which the parent of the contractor or 35 subcontractor owns more than fifty percent of the voting stock, or an 36 entity in which one or more of the top five shareholders of the contrac- 37 tor or subcontractor individually or collectively also owns a control- 38 ling share of the voting stock, or an entity which exhibits any other 39 indicia of control over the contractor or subcontractor or over which 40 the contractor or subcontractor exhibits control, regardless of whether 41 or not the controlling party or parties have any identifiable or docu- 42 mented ownership interest. Such indicia shall include power or responsi- 43 bility over employment decisions, access to and/or use of the relevant 44 entity's assets or equipment, power or responsibility over contracts of 45 the entity, responsibility for maintenance or submission of certified 46 payroll records, and influence over the business decisions of the rele- 47 vant entity. 48 15. "Subsidiary" means an entity that is controlled directly, or indi- 49 rectly through one or more intermediaries, by a contractor or subcon- 50 tractor or the contractor's parent company. 51 16. "Successor" means an entity engaged in work substantially similar 52 to that of the predecessor, where there is substantial continuity of 53 operation with that of the predecessor. 54 17. "Supplements" means all remuneration for employment paid in any 55 medium other than cash, or reimbursement for expenses, or any payments 56 which are not "wages" within the meaning of the law, including, but not
A. 4036--A 4 1 limited to, health, welfare, non-occupational disability, retirement and 2 vacation benefits, holiday pay, life insurance, and apprenticeship 3 training. 4 18. "Wage" includes: (a) basic hourly cash rate of pay; and (b) fringe 5 benefits including medical or hospital care, pensions on retirement or 6 death, compensation for injuries or illness resulting from occupational 7 activity, or insurance to provide any of the foregoing, unemployment 8 benefits, life insurance, disability and sickness insurance, accident 9 insurance, vacation and holiday pay, costs of apprenticeship or other 10 similar programs and other bona fide fringe benefits not otherwise 11 required by federal, state or local law to be provided by the contractor 12 or subcontractor. 13 § 228-a. Prevailing wage requirement for not-for-profit theaters and 14 payment of their employees on productions funded by the New York state 15 council on the arts or arts agencies of localities; record keeping. 1. 16 In all cases where work is being performed pursuant to a collective 17 bargaining agreement the contractor or subcontractor shall keep original 18 payrolls or transcripts thereof, subscribed and confirmed by the 19 contractor or subcontractor as true, under penalty of perjury, showing 20 the hours and days worked by each employee, the craft, trade or occupa- 21 tion at which the employee was employed, and the wages paid. 22 2. Where the wages paid include sums which are not paid directly to 23 the employees weekly and which are expended for supplements, the records 24 required to be maintained shall include a record of such hourly payment 25 on behalf of such employees, the supplement for which such payment has 26 been made, and the name and address of the person to whom such payment 27 has been made. In all such cases, the contractor shall keep a true and 28 inscribed copy of the agreement under which such payments are made, a 29 record of all net payments made thereunder, and a list of all persons 30 for whom such payments are made. 31 3. The records required to be maintained shall be kept on the site of 32 the work during all of the time that work under the contract is being 33 performed. 34 4. All records required to be maintained shall be preserved for a 35 period of three years after the completion of work. 36 § 228-b. Powers of the fiscal officer. 1. In addition to the powers 37 enumerated elsewhere in this article, the fiscal officer shall have the 38 power to: 39 (a) cause an investigation to be made to determine the wages prevail- 40 ing in any locality for work performed by employees covered by this 41 article and in making such investigation, the fiscal officer may utilize 42 wage and fringe benefit data from various sources including, but not 43 limited to, data and determinations of federal, state or other govern- 44 mental agencies; 45 (b) institute and conduct inspections at the site of the work or else- 46 where in aid of the effective administration and enforcement of the 47 provisions of this article; 48 (c) examine the books, documents and records pertaining to the wages 49 paid to, and the hours of work performed by, such employees; 50 (d) hold the hearings provided for in this article, and in connection 51 therewith, to issue subpoenas, administer oaths and examine witnesses. 52 The enforcement of a subpoena issued under this section shall be regu- 53 lated by the civil practice law and rules; 54 (e) make a classification by craft, trade or other generally recog- 55 nized occupational category of the employees involved and to determine
A. 4036--A 5 1 whether such work has been performed by the employees in such classi- 2 fication; 3 (f) require a contractor or subcontractor to file with the fiscal 4 officer a record of the wages actually paid by such contractor or 5 subcontractor to the employees and of their hours of work; 6 (g) delegate any of the foregoing powers to the fiscal officer's depu- 7 ty or other authorized representative; 8 (h) provide such reasonable limitations from any or all provisions of 9 this article as the fiscal officer may find necessary and proper in the 10 public interest or to avoid serious impairment of the conduct of govern- 11 ment business; and 12 (i) propose, and after public hearing held before the fiscal officer 13 or the fiscal officer's designee, promulgate such rules as the fiscal 14 officer shall consider necessary for the proper execution of the duties, 15 responsibilities and powers conferred upon the fiscal officer by the 16 provisions of this article. Such rules may allow such reasonable vari- 17 ations, tolerances and exemptions to and from any or all provisions of 18 this article as the fiscal officer may find necessary and proper in the 19 public interest, or to avoid serious impairment of the conduct of 20 government business. 21 2. For all work for which the commissioner is the fiscal officer, the 22 commissioner shall additionally have all the powers granted to the 23 commissioner elsewhere in this chapter. 24 § 228-c. Investigation and hearing. 1. Whenever the fiscal officer has 25 reason to believe that an employee has been paid less than the wages 26 stipulated in the contract, or if such contract has no wage schedule 27 attached thereto and the fiscal officer has reason to believe that an 28 employee has been paid less than the wages prevailing for the employee's 29 craft, trade or occupation, the fiscal officer may, and upon receipt of 30 a written complaint from an employee employed thereon, conduct a special 31 investigation to determine the facts relating thereto. 32 2. (a) At the start of such investigation the fiscal officer may noti- 33 fy the financial officer of the arts agency interested who shall, at the 34 direction of the fiscal officer, forthwith withhold from any payment due 35 to the contractor or subcontractor executing the contract sufficient 36 money to safeguard the rights of the employees and to cover the civil 37 penalty that may be assessed as provided herein, or, if there are insuf- 38 ficient moneys still due to be disbursed to the contractor or subcon- 39 tractor to safeguard the rights of the employees and to cover the civil 40 penalty that may be assessed as provided herein, the financial officer 41 of another arts agency which has entered or subsequently enters into a 42 contract with the contractor or subcontractor, shall withhold from any 43 such payment to the contractor or subcontractor executing any work, 44 sufficient moneys to safeguard the rights of the employees and to cover 45 the civil penalty that may be assessed as provided herein. 46 (b) If there are still insufficient moneys still due to be disbursed 47 to the contractor or subcontractor to safeguard the rights of the 48 employees and to cover the civil penalty that may be assessed as 49 provided herein, the financial officer shall immediately so notify the 50 fiscal officer, who may issue a notice of withholding to any of the 51 following: any substantially-owned affiliated entity or successor or 52 subsidiary of the contractor or subcontractor, an officer of the 53 contractor or subcontractor who knowingly participated in the violation 54 of this article, any of the partners, if the contractor or subcontractor 55 is a partnership, or any of the five largest shareholders of the 56 contractor or subcontractor, as determined by the fiscal officer.
A. 4036--A 6 1 (c) The notice of withholding shall provide that the fiscal officer 2 intends to instruct the financial officer, not less than ten days 3 following of the notice by mail, to withhold sufficient moneys to safe- 4 guard the rights of the employees and to cover the civil penalty that 5 may be assessed as provided herein, from any payment due the notified 6 party under any contract pending final determination. The notice of 7 withholding shall provide that within thirty days following the date of 8 the notice of withholding the notified party may contest the withholding 9 on the basis that the notified party is not a partner or one of the five 10 largest shareholders of the subcontractor or contractor, an officer of 11 the contractor or subcontractor who knowingly participated in the 12 violation of this article, or a substantially-owned affiliated entity or 13 successor. If the notified party fails to contest the notice of with- 14 holding, or if the fiscal officer, after reviewing the information 15 provided by the notified party in such contest, determines that the 16 notified party is a partner or one of the five largest shareholders, a 17 substantially-owned affiliated entity, an officer of the contractor or 18 subcontractor who knowingly participated in the violation of this arti- 19 cle, or a successor, the fiscal officer may instruct the financial offi- 20 cer to immediately withhold sufficient moneys to safeguard the rights of 21 the employees and to cover the civil penalty that may be assessed as 22 provided herein from funds still to be disbursed to the notified party 23 under any contract pending the final determination. 24 (d) The financial officer shall immediately implement the notice of 25 withholding and confirm in writing to the fiscal officer the amount of 26 money withheld. 27 (e) If the notified party contests the withholding after a withholding 28 has been effected, and if the fiscal officer determines that the noti- 29 fied party is not a partner or one of the five largest shareholders, a 30 substantially-owned affiliated entity or successor, or an officer of the 31 contractor or subcontractor who knowingly participated in the violation 32 of this article, the fiscal officer shall immediately notify the finan- 33 cial officer to release all funds being withheld from the notified 34 party. 35 (f) The money shall be held in trust pending completion of the inves- 36 tigation. 37 3. If, despite the requirements of law, the contract for the work has 38 been awarded without the annexation thereto of the schedule of wages 39 provided for in this article, the fiscal officer shall determine in the 40 proceeding before such fiscal officer the wages prevailing at the time 41 the work was performed for the crafts, trades or occupations of the 42 employees involved. 43 4. In an investigation conducted under the provisions of this section, 44 the inquiry of the fiscal officer shall not extend to work performed 45 more than two years prior to: 46 (a) the filing of the complaint; or 47 (b) the commencement of the investigation upon the fiscal officer's 48 own volition, whichever is earlier in point of time. 49 5. (a) The investigation and hearing shall be expeditiously conducted 50 and upon the completion thereof the fiscal officer shall determine the 51 issues raised and shall make and file an order in the fiscal officer's 52 office stating such determination and forthwith serve personally or by 53 mail a copy of such order and determination together with a notice of 54 filing upon all parties to the proceeding and upon the financial officer 55 of the arts agency involved.
A. 4036--A 7 1 (b) In addition to directing payment of wages found to be due, such 2 order of the fiscal officer may direct payment of a further sum as a 3 civil penalty in an amount not exceeding twenty-five percent of the 4 total amount found to be due. In assessing the amount of the penalty, 5 due consideration shall be given to the size of the employer's business, 6 the good faith of the employer, the gravity of the violation, the histo- 7 ry of previous violations of the employer, successor or substantially- 8 owned affiliated entity or any successor of the contractor or subcon- 9 tractor, any officer of the contractor or subcontractor who knowingly 10 participated in the violation of this article, and any of the partners 11 if the contractor or subcontractor is a partnership or any of the five 12 largest shareholders of the contractor or subcontractor, as determined 13 by the fiscal officer, of such underpayment of wages or supplements, and 14 any officer of the contractor or subcontractor who knowingly partic- 15 ipated in the violation of this article, and the failure to comply with 16 record keeping or other non-wage requirements. Where the fiscal officer 17 is the commissioner, the penalty shall be paid to the commissioner for 18 deposit in the state treasury. Where the fiscal officer is a city comp- 19 troller or other analogous officer, the penalty shall be paid to said 20 officer for deposit in the city treasury. 21 (c) If the order directs the payment to specified employees of wages 22 found to be due and unpaid, including interest at a rate not less than 23 six per centum per year and not more than the rate of interest then in 24 effect as prescribed by the superintendent of financial services pursu- 25 ant to section fourteen-a of the banking law per annum from the time 26 such wages should have been paid, the financial officer of such arts 27 agency shall, upon the service to the financial officer of such order, 28 pay to such employees from the trust money withheld the amounts speci- 29 fied in such order and shall pay the civil penalty as provided herein, 30 provided no review proceeding pursuant to the provisions of article 31 seventy-eight of the civil practice law and rules is commenced within 32 thirty days of the date said order was filed in the office of the fiscal 33 officer. If such review is timely commenced, the money withheld shall 34 remain in trust pending final disposition of the review proceeding. In 35 determining the rate of interest to be imposed the fiscal officer shall 36 consider the size of the employer's business, the good faith of the 37 employer, the gravity of the violation, the history of previous 38 violations of the employer, successor or substantially-owned affiliated 39 entity or any successor of the contractor or subcontractor, any officer 40 of the contractor or subcontractor who knowingly participated in the 41 violation of this article, and any of the partners if the contractor or 42 subcontractor is a partnership or any of the five largest shareholders 43 of the contractor or subcontractor, as determined by the fiscal officer, 44 and the failure to comply with record keeping or other non-wage require- 45 ments. 46 6. When a final determination has been made and such determination is 47 in favor of an employee, such employee may, in addition to any other 48 remedy provided by this article, institute an action in any court of 49 appropriate jurisdiction against the person or corporation found to have 50 violated this article, any substantially-owned affiliated entity or any 51 successor of the contractor or subcontractor, any officer of the 52 contractor or subcontractor who knowingly participated in the violation 53 of this article, and any of the partners if the contractor or subcon- 54 tractor is a partnership or any of the five largest shareholders of the 55 contractor or subcontractor, as determined by the fiscal officer, for 56 the recovery of the difference between the sum, if any, actually paid to
A. 4036--A 8 1 the employee by the aforesaid financial officer pursuant to said order 2 and the amount found to be due the employee as determined by said order. 3 Such action must be commenced within three years from the date of the 4 filing of said order, or if the said order is reviewed in a proceeding 5 pursuant to article seventy-eight of the civil practice law and rules, 6 within three years after the termination of such review proceeding. 7 Provided that no proceeding for judicial review as provided in this 8 section shall then be pending and the time for initiation of such 9 proceeding shall have expired, the fiscal officer may file with the 10 county clerk of the county where the employer resides or has a place of 11 business the order of the fiscal officer containing the amount found to 12 be due. The filing of such order shall have the full force and effect of 13 a judgment duly docketed in the office of such clerk. The order may be 14 enforced by and in the name of the fiscal officer in the same manner, 15 and with like effect, as that prescribed by the civil practice law and 16 rules for the enforcement of a money judgment. 17 7. When, pursuant to the provisions of this section, two final orders 18 have been entered against a contractor, subcontractor, successor, or any 19 substantially-owned affiliated entity of the contractor or subcontrac- 20 tor, any of the partners if the contractor or subcontractor is a part- 21 nership, any of the five largest shareholders of the contractor or 22 subcontractor, any officer of the contractor or subcontractor who know- 23 ingly participated in the violation of this article within any consec- 24 utive six-year period determining that such contractor or subcontractor 25 and/or its successor, substantially-owned affiliated entity of the 26 contractor or subcontractor, any of the partners or any of the five 27 largest shareholders of the contractor or subcontractor, any officer of 28 the contractor or subcontractor who knowingly participated in the 29 violation of this article has willfully failed to pay the prevailing 30 wages in accordance with the provisions of this article, whether such 31 failures were concurrent or consecutive and whether or not such final 32 determinations concerning separate public contracts are rendered simul- 33 taneously, such contractor, subcontractor, successor, and if the 34 contractor, subcontractor, successor, or any substantially-owned affil- 35 iated entity of the contractor or subcontractor, any of the partners if 36 the contractor or subcontractor is a partnership, or any of the five 37 largest shareholders of the contractor or subcontractor, any officer of 38 the contractor or subcontractor who knowingly participated in the 39 violation of this article, or any successor is a corporation, any offi- 40 cer of such corporation who knowingly participated in such failure, 41 shall be ineligible to submit a grant application or be awarded a grant 42 by an arts agency covered by this article for a period of five years 43 from the date of the second order, provided, however, that where any 44 such final order involves the falsification of payroll records or the 45 kickback of wages, the contractor, subcontractor, successor, substan- 46 tially-owned affiliated entity of the contractor or subcontractor, any 47 partner if the contractor or subcontractor is a partnership or any of 48 the five largest shareholders of the contractor or subcontractor, any 49 officer of the contractor or subcontractor who knowingly participated in 50 the violation of this article shall be ineligible to submit a grant 51 application or be awarded a grant, contract or subcontract with the 52 state, or any municipal corporation or public body for a period of five 53 years from the date of the first final order. Nothing in this subdivi- 54 sion shall be construed as affecting any provision of any other law or 55 regulation relating to the awarding of public contracts or grants.
A. 4036--A 9 1 8. (a) When a final determination has been made in favor of a 2 complainant and the contractor or subcontractor found violating this 3 article has failed to make payment as required by the order of the 4 fiscal officer, and provided that no relevant proceeding for judicial 5 review shall then be pending and the time for initiation of such 6 proceeding shall have expired, the fiscal officer may file a copy of the 7 order of the fiscal officer containing the amount found to be due with 8 the county clerk of the county of residence or place of business of any 9 of the following: 10 (i) any substantially-owned affiliated entity or any successor of the 11 contractor or subcontractor; 12 (ii) any of the partners if the contractor or subcontractor is a part- 13 nership or any of the five largest shareholders of the contractor or 14 subcontractor, as determined by the fiscal officer; or 15 (iii) any officer of the contractor or subcontractor who knowingly 16 participated in the violation of this article; provided, however, that 17 the fiscal officer shall within five days of the filing of the order 18 provide notice thereof to the partner or a top five shareholder or 19 successor or substantially-owned affiliated entity. The notified party 20 may contest the filing on the basis that it is not a partner or a top 21 five shareholder, an officer of the contractor or subcontractor who 22 knowingly participated in the violation of this article, successor or 23 substantially-owned affiliated entity. If, after reviewing the informa- 24 tion provided by the notified party in support of such contest, the 25 fiscal officer determines that the notified party is not within the 26 definitions described herein, the fiscal officer shall immediately with- 27 draw the filing of the order. 28 (b) The filing of such order shall have the full force and effect of a 29 judgment duly docketed in the office of such clerk. The order may be 30 enforced by and in the name of the fiscal officer in the same manner, 31 and with like effect, as that prescribed by the civil practice law and 32 rules for the enforcement of a money judgment. 33 9. When a final determination has been made against a subcontractor in 34 favor of a complainant and the contractor has made payment to the 35 complainant of any wages and interest due the complainant and any civil 36 penalty, and providing that no relevant proceeding for judicial review 37 shall then be pending and the time for initiation of such proceeding 38 shall have expired, the contractor may file a copy of the order of the 39 fiscal officer containing the amount found to be due with the county 40 clerk of the county of residence or place of business of the subcontrac- 41 tor. The filing of such order shall have the full force and effect of a 42 judgment duly docketed in the office of such clerk. The judgment may be 43 docketed in favor of the contractor who may proceed as a judgment credi- 44 tor against the subcontractor for the recovery of all monies paid by the 45 contractor under such order. 46 § 228-d. Failure to protest underpayments. Notwithstanding any incon- 47 sistent provision of this chapter or of any other general, special or 48 local law, ordinance, charter or administrative code, an employee shall 49 not be barred from the right to recover the difference between the 50 amount actually paid to the employee and the amount which should have 51 been paid to the employee pursuant to an order entered under the 52 provisions of this article because of the prior receipt by the employee 53 without protest of wages paid or on account of the employee's failure to 54 state orally or in writing upon any payroll or receipt which the employ- 55 ee is required to sign that the wages received by the employee are 56 received under protest, or on account of the employee's failure to indi-
A. 4036--A 10 1 cate the employee's protest against the amount, or that the amount so 2 paid does not constitute payment in full of wages due the employee for 3 the period covered by such payment. 4 § 228-e. Statements showing amounts due for wages. 1. Subcontractors 5 engaged for work by a contractor or its subcontractor shall, upon 6 receipt from the contractor or its subcontractor of the schedule of 7 wages and supplements specified in the contract, provide to the contrac- 8 tor or its subcontractor a verified statement attesting that the subcon- 9 tractor has received and reviewed such schedule of wages and supple- 10 ments, and agrees that it will pay the applicable prevailing wages and 11 will pay or provide the supplements specified therein. Such verified 12 statement shall be filed in the manner described in subdivision three of 13 this section. It shall be a violation of this article for any contractor 14 or its subcontractor to fail to provide for its subcontractor a copy of 15 the schedule of wages and supplements specified in the contract. 16 2. Before grant funds are released by an arts agency it shall be the 17 duty of the comptroller or the financial officer of such arts agency or 18 other officer or person charged with the custody and disbursement of the 19 grant funds pursuant to the contract and under which payment is made, to 20 require the contractor to file a statement in writing in form satisfac- 21 tory to such officer certifying to the amounts then due and owing from 22 such contractor filing such statement to or on behalf of any and all 23 employees for daily or weekly wages on account of labor performed upon 24 the work under the contract, setting forth therein the names of the 25 persons whose wages are unpaid and the amount due to or on behalf of 26 each respectively, which statement so to be filed shall be verified by 27 the oath of the contractor that the contractor has read such statement 28 subscribed by the contractor and knows the contents thereof, and that 29 the same is true of the contractor's own knowledge. 30 3. Before payment is made by or on behalf of an arts agency of any 31 sums due on account of a contract and representing the final portion of 32 twenty percent of the total amount payable under the contract, it shall 33 be the duty of the comptroller or the financial officer of such arts 34 agency or other officer or person charged with the custody and disburse- 35 ment of the grant funds applicable to the contract under and pursuant to 36 which payment is made to require the contractor to file every verified 37 statement required to be obtained by the contractor from its subcontrac- 38 tors pursuant to subdivision one of this section and to file a statement 39 in writing in form satisfactory to such officer setting forth the 40 amounts known by the contractor to be then due and owing from a subcon- 41 tractor, or from a subcontractor of such subcontractor, for such wages 42 and supplements, or certifying that the contractor has no knowledge of 43 such amounts owing to or on behalf of any employees of its subcontrac- 44 tors, and that in the event it is determined by the commissioner that 45 the wages or supplements or both of any employees of such subcontractors 46 have not been paid or provided pursuant to the appropriate schedule of 47 wages and supplements, the contractor shall be responsible for payment 48 of such wages or supplements pursuant to the provisions of section two 49 hundred twenty-eight-a of this article. Before final payment is made of 50 any sums due on account of such contract, the contractor shall be 51 required to file a supplemental statement setting forth any additional 52 amounts known by the contractor to be then due and owing by each subcon- 53 tractor for such wages or supplements, or that the contractor has no 54 knowledge of such amounts owing to or on behalf of any employee of its 55 subcontractors. Such statements so to be filed shall be verified by the 56 oath of the contractor that the contractor has read such statements
A. 4036--A 11 1 subscribed by the contractor and knows the contents thereof, and that 2 the same is true of the contractor's own knowledge, except with respect 3 to wages and supplements owing by subcontractors which may be certified 4 upon information and belief. 5 4. If any interested person shall have previously filed a protest in 6 writing objecting to the release of grant funds to any contractor or 7 subcontractor to the extent of the amount or amounts due or to become 8 due to such person for daily or weekly wages for labor performed on the 9 work which was funded by such grant, or if for any other reason it may 10 be deemed advisable, the comptroller or the financial officer of the 11 arts agency or other officer or person charged with the custody and 12 disbursement of the grant funds applicable to the contract for such 13 work, may deduct from the whole amount of any payment on account thereof 14 the sum or sums admitted by any contractor or subcontractor in such 15 statement or statements as filed to be due and owing by the contractor 16 or subcontractor on account of labor performed on such work before 17 disbursing such grant funds, and may withhold the amount so deducted for 18 the benefit of the employees whose wages are unpaid as shown by the 19 verified statements filed by any contractor or subcontractor, and may 20 pay directly to any person the amount or amounts shown by the statements 21 filed as hereinbefore required to be due to such person or such person's 22 duly authorized collective bargaining labor organization receiving such 23 payment to the extent of the amount thereof. 24 § 228-f. Provisions in contracts prohibiting discrimination on account 25 of race, creed, color, national origin, age, sex or disability. Every 26 contract for work shall contain provisions by which the contractor 27 agrees: 28 1. that in the hiring of employees for the performance of work under 29 the contract or any subcontract thereunder within the territorial limits 30 of this state, no contractor or subcontractor, nor any person acting on 31 behalf of such contractor or subcontractor, shall by reason of race, 32 creed, color, national origin, age, sex or disability, discriminate 33 against any citizen of the state of New York who is qualified and avail- 34 able to perform the work to which the employment relates; 35 2. that no contractor or subcontractor, nor any person acting on such 36 entity's behalf shall, in any manner, discriminate against or intimidate 37 any employee hired for the performance of work under the contract on 38 account of race, creed, color, national origin, age, sex or disability; 39 3. that there may be deducted from the amount payable to the contrac- 40 tor by the arts agency under the contract a penalty of fifty dollars for 41 each person for each day during which such person was discriminated 42 against or intimidated in violation of the provisions of the contract; 43 and 44 4. that the contract may be cancelled or terminated by the arts agen- 45 cy, and all moneys otherwise to be disbursed pursuant to such contract 46 may be forfeited for a second or any subsequent violation of the terms 47 or conditions of this section of the contract. 48 § 228-g. Penalties. 1. Any contractor or subcontractor who shall upon 49 such entity's oath verify any statement required to be filed under this 50 article which is known by such entity to be false shall be guilty of 51 perjury and punishable as provided by the penal law. 52 2. When a contract contains as part thereof a schedule of wages as 53 provided for in this article, any contractor who, after entering into 54 such contract, and any subcontractor of such contractor fails to pay to 55 any employee the wages stipulated in such wage schedule is guilty of a 56 misdemeanor and upon conviction shall be punished for a first offense by
A. 4036--A 12 1 a fine of five hundred dollars or by imprisonment for not more than 2 thirty days or by both such fine and imprisonment; for a second offense 3 by a fine of one thousand dollars, and in addition thereto the contract 4 on which the violation has occurred shall be forfeited; and no such 5 contractor shall be entitled to receive any sum, nor shall any officer, 6 agent or employee of the contracting arts agency pay any such sum or 7 authorize its payment from the funds under such entity's charge or 8 control to such contractor for work done upon the contract on which the 9 contractor has been convicted of a second offense. If the contractor or 10 subcontractor is a corporation, any officer of such corporation who 11 knowingly permits the corporation to fail to make such payment shall 12 also be guilty of a misdemeanor and the criminal and civil penalties 13 herein shall attach to such officer upon conviction. 14 § 228-h. Enforcement of article. If the fiscal officer, as defined 15 herein, finds that any contractor fails to comply with or evades the 16 provisions of this article, the fiscal officer shall present evidence of 17 such noncompliance or evasion to the arts agency having charge of such 18 contract for enforcement. Where such evidence indicates noncompliance or 19 evasion on the part of a subcontractor, the contractor shall be respon- 20 sible for such noncompliance or evasion. It shall be the duty of the 21 arts agency in charge of such contract to enforce the provisions of this 22 article. 23 § 2. Section 3.01 of the arts and cultural affairs law is amended to 24 read as follows: 25 § 3.01. Legislative findings and declaration of policy. It is hereby 26 found that many of our citizens lack the opportunity to view, enjoy or 27 participate in living theatrical performances, musical concerts, operas, 28 dance and ballet recitals, art exhibits, examples of fine architecture, 29 and the performing and fine arts generally. It is hereby further found 30 that, with increasing leisure time, the practice and enjoyment of the 31 arts are of increasing importance and that the general welfare of the 32 people of the state will be promoted by giving further recognition to 33 the arts as a vital aspect of our culture and heritage and as a valued 34 means of expanding the scope of our educational programs. 35 It is hereby declared to be the policy of the state to join with 36 private patrons and with institutions and professional organizations 37 concerned with the arts to insure that the role of the arts in the life 38 of our communities will continue to grow and will play an ever more 39 significant part in the welfare and educational experience of our citi- 40 zens and in maintaining the paramount position of this state in the 41 nation and in the world as a cultural center. 42 The legislature further finds that the investment of funds by arts 43 agencies as defined in article eight-B of the labor law can provide a 44 vital economic engine to assist, nurture, develop, and promote regional 45 economic development, the state tourism industry and the growth of jobs 46 in the state. Indeed, attendees of arts programming generate economic 47 activity in New York state far beyond the cost of admission, from food 48 and drink, to parking, transportation, travel, and childcare revenues, 49 among others. 50 The professional performers and related or supporting professionals 51 employed on projects and productions that create the performing and fine 52 arts, and are the basis of the arts economy in New York state and must 53 not be left behind. Therefore, the state legislature finds that arts 54 agencies have a substantial and compelling proprietary interest in any 55 funds awarded in the fine and performing arts. The legislature hereby 56 declares that the mandate of a living wage for projects awarded grants
A. 4036--A 13 1 by arts agencies is central to ensuring the continued availability of 2 the fine and performing arts in New York state, and the concomitant 3 economic benefits therewith, and further that the state's proprietary 4 interest with regard to such funds could be adversely affected by 5 labor-management conflict. 6 It is further declared that all activities undertaken by the state in 7 carrying out this policy shall be directed toward encouraging and 8 assisting rather than in any ways limiting the freedom of artistic 9 expression that is essential for the well-being of the arts. 10 § 3. Paragraph (d) of subdivision 1 of section 3.19 of the arts and 11 cultural affairs law, as added by chapter 16 of the laws of 2017, is 12 amended to read as follows: 13 (d) Any organization applying for grant funding from an arts agency as 14 defined by this chapter shall provide to the arts agency a certification 15 that it will enter into a labor peace agreement with at least one bona 16 fide labor organization that represents employees of such organization 17 including but not limited to actors, stage managers, production assist- 18 ants, scenic artists, scenic designers, costume designers, lighting 19 designers, sound designers, projection designers, graphic artists, art 20 and costume department coordinators, ushers, ticket takers, line direc- 21 tors, press agents, company managers, theatre managers, engineers, musi- 22 cians, singers, choreographers, dancers, staging staff, ballet school 23 faculty, directors, fight directors, intimacy directors, dressers, 24 wardrobers, costumers, stitchers, tailors, drapers, shoppers, laundry 25 workers, dyers, costume technicians, milliners, craftspeople, child 26 actors, guardians, box office treasurers, first assistants, and ticket 27 sellers either where such bona fide labor organization is actively 28 representing employees providing services covered by the organization 29 seeking such grant funding or upon notice by a bona fide labor organiza- 30 tion that is attempting to represent employees who will provide services 31 to the organization seeking such grant funding. The maintenance of such 32 a labor peace agreement shall be an ongoing material condition for 33 receipt of grant funding under this article. For purposes of this 34 section, "labor peace agreement" means an agreement between an entity 35 and labor organization that, at a minimum, protects the state's proprie- 36 tary interests by prohibiting labor organizations and members from 37 engaging in picketing, work stoppages, boycotts, and any other economic 38 interference with the entity. 39 (e) Any applicant which fails to demonstrate that grant funds are to 40 be used toward programs in the state shall be deemed ineligible to 41 receive grant funding under this article. Any organization, when apply- 42 ing for grant funding, shall provide in its grant application materials 43 documentation demonstrating compliance with this provision. 44 § 4. Severability. If any clause, sentence, paragraph, subdivision, 45 section or part of this act shall be adjudged by any court of competent 46 jurisdiction to be invalid, such judgment shall not affect, impair, or 47 invalidate the remainder thereof, but shall be confined in its operation 48 to the clause, sentence, paragraph, subdivision, section or part thereof 49 directly involved in the controversy in which such judgment shall have 50 been rendered. It is hereby declared to be the intent of the legislature 51 that this act would have been enacted even if such invalid provisions 52 had not been included herein. 53 § 5. This act shall take effect on the ninetieth day after it shall 54 have become a law and shall apply to any grant award made subsequent to 55 such effective date.