S 3037: Requires 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 either where such bona fide labor organization is actively representing employees providing services covered by the organization seeking such grant funding or upon notice by a bona fide labor organization that is attempting to represent employees who will provide services to the organization seeking such grant funding; relates to prevailing wage requirements 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.

  
  STATE OF NEW YORK ________________________________________________________________________ 3037 2025-2026 Regular Sessions  IN SENATE January 23, 2025 ___________ Introduced by Sen. HOYLMAN-SIGAL -- read twice and ordered printed, and when printed to be committed to the Committee on Cultural Affairs, Tourism, Parks and Recreation AN ACT 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; and to amend the labor law, in relation to prevailing wage requirement 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 The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 3.01 of the arts and cultural affairs law is 2 amended to read as follows: 3 § 3.01. Legislative findings and declaration of policy. It is hereby 4 found that many of our citizens lack the opportunity to view, enjoy or 5 participate in living theatrical performances, musical concerts, operas, 6 dance and ballet recitals, art exhibits, examples of fine architecture, 7 and the performing and fine arts generally. It is hereby further found 8 that, with increasing leisure time, the practice and enjoyment of the 9 arts are of increasing importance and that the general welfare of the 10 people of the state will be promoted by giving further recognition to 11 the arts as a vital aspect of our culture and heritage and as a valued 12 means of expanding the scope of our educational programs. 13 It is hereby declared to be the policy of the state to join with 14 private patrons and with institutions and professional organizations 15 concerned with the arts to insure that the role of the arts in the life 16 of our communities will continue to grow and will play an ever more 17 significant part in the welfare and educational experience of our citi- 18 zens and in maintaining the paramount position of this state in the 19 nation and in the world as a cultural center. 20 The legislature further finds that the investment of funds by arts 21 agencies as defined in article eight-B of the labor law can provide a EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06595-01-5 
 S. 3037 2 1 vital economic engine to assist, nurture, develop, and promote regional 2 economic development, the state tourism industry and the growth of jobs 3 in the state. Indeed, attendees of arts programming generate economic 4 activity in New York state far beyond the cost of admission, from food 5 and drink, to parking, transportation, travel, and childcare revenues, 6 among others. 7 The professional performers and related or supporting professionals 8 employed on projects and productions that create the performing and fine 9 arts, and are the basis of the arts economy in New York state and must 10 not be left behind. Therefore, the state legislature finds that arts 11 agencies have a substantial and compelling proprietary interest in any 12 funds awarded in the fine and performing arts. The legislature hereby 13 declares that the mandate of a living wage for projects awarded grants 14 by arts agencies is central to ensuring the continued availability of 15 the fine and performing arts in New York state, and the concomitant 16 economic benefits therewith, and further that the state's proprietary 17 interest with regard to such funds could be adversely affected by 18 labor-management conflict. 19 It is further declared that all activities undertaken by the state in 20 carrying out this policy shall be directed toward encouraging and 21 assisting rather than in any ways limiting the freedom of artistic 22 expression that is essential for the well-being of the arts. 23 § 2. Paragraph (d) of subdivision 1 of section 3.19 of the arts and 24 cultural affairs law, as added by chapter 16 of the laws of 2017, is 25 amended to read as follows: 26 (d) Any organization applying for grant funding from an arts agency as 27 defined by this chapter shall provide to the arts agency a certification 28 that it will enter into a labor peace agreement with at least one bona 29 fide labor organization that represents employees of such organization 30 including but not limited to actors, stage managers, production assist- 31 ants, scenic artists, scenic designers, costume designers, lighting 32 designers, sound designers, projection designers, graphic artists, art 33 and costume department coordinators, ushers, ticket takers, line direc- 34 tors, press agents, company managers, theatre managers, engineers, musi- 35 cians, singers, choreographers, dancers, staging staff, ballet school 36 faculty, directors, fight directors, intimacy directors, dressers, 37 wardrobers, costumers, stitchers, tailors, drapers, shoppers, laundry 38 workers, dyers, costume technicians, milliners, craftspeople, child 39 actors, guardians, box office treasurers, first assistants, and ticket 40 sellers either where such bona fide labor organization is actively 41 representing employees providing services covered by the organization 42 seeking such grant funding or upon notice by a bona fide labor organiza- 43 tion that is attempting to represent employees who will provide services 44 to the organization seeking such grant funding. The maintenance of such 45 a labor peace agreement shall be an ongoing material condition for 46 receipt of grant funding under this article. For purposes of this 47 section, "labor peace agreement" means an agreement between an entity 48 and labor organization that, at a minimum, protects the state's proprie- 49 tary interests by prohibiting labor organizations and members from 50 engaging in picketing, work stoppages, boycotts, and any other economic 51 interference with the entity. 52 (e) Any applicant which fails to demonstrate that grant funds are to 53 be used toward programs in the state shall be deemed ineligible to 54 receive grant funding under this article. Any organization, when apply- 55 ing for grant funding, shall provide in its grant application materials 56 documentation demonstrating compliance with this provision. 
 S. 3037 3 1 § 3. The labor law is amended by adding a new article 8-B to read as 2 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: 20 1. "Arts agency" means any public agency of New York state or of a 21 locality of New York state that provides grants to productions at not- 22 for-profit theaters. 23 2. "Contract" means any agreement between a production and an arts 24 agency to grant funds to such production. 25 3. "Contractor" or "subcontractor" means a production that is a recip- 26 ient of a grant from an arts agency. 27 4. "Employee" means an employee of a not-for-profit theater that 28 receives a grant award from an arts agency including but not limited to 29 actors, stage managers, production assistants, scenic artists, scenic 30 designers, costume designers, lighting designers, sound designers, 31 projection designers, graphic artists, art and costume department coor- 32 dinators, ushers, ticket takers, line directors, press agents, company 33 managers, theatre managers, engineers, musicians, singers, choreogra- 34 phers, dancers, staging staff, ballet school faculty, directors, fight 35 directors, intimacy directors, dressers, wardrobers, costumers, stitch- 36 ers, tailors, drapers, shoppers, laundry workers, dyers, costume techni- 37 cians, milliners, craftspeople, child actors, guardians, box office 38 treasurers, first assistants, and ticket sellers employed on a 39 production funded by an arts agency. 40 5. "Entity" means a partnership, association, joint venture, company, 41 sole proprietorship, corporation or any other form of doing business. 42 6. "Fiscal officer" means the comptroller of the state of New York or 43 other analogous officer of the governing body of an arts agency. 44 7. "Grant" means any capital and/or operational grant made to 45 productions funded by an arts agency. 46 8. "Locality" means the state, or a town, city, village or other civil 47 division or area of the state as determined by the fiscal officer. The 48 fiscal officer may fix a different geographic area in determining the 49 locality for the prevailing basic hourly cash rate of pay and the local- 50 ity for prevailing supplements. 51 9. "Not-for-profit theater" means a theater operating as a not-for- 52 profit entity pursuant to New York state laws with a seating capacity of 53 at least one hundred. 54 10. "Parent company" means an entity that directly controls the 55 contractor or subcontractor. 
 S. 3037 4 1 11. "Prevailing practices in the locality" means the practice of 2 providing supplements by virtue of collective bargaining agreements 3 between bona fide labor organizations that represent employees of not- 4 for-profit theaters including but not limited to actors, stage managers, 5 production assistants, scenic artists, scenic designers, costume design- 6 ers, lighting designers, sound designers, projection designers, graphic 7 artists, art and costume department coordinators, ushers, ticket takers, 8 line directors, press agents, company managers, theatre managers, engi- 9 neers, musicians, singers, choreographers, dancers, staging staff, 10 ballet school faculty, directors, fight directors, intimacy directors, 11 dressers, wardrobers, costumers, stitchers, tailors, drapers, shoppers, 12 laundry workers, dyers, costume technicians, milliners, craftspeople, 13 child actors, guardians, box office treasurers, first assistants, and 14 ticket sellers provided that said employers employ at least thirty per 15 centum of such employees in the locality, as determined by the fiscal 16 officer in accordance with the provisions herein. With respect to each 17 supplement determined to be one of the prevailing practices in the 18 locality, the amount of such supplement shall be determined in the same 19 manner and at the same time as the prevailing rate of wage is determined 20 pursuant to this section. 21 12. "Prevailing wage" means the rate of compensation paid by a 22 production, by virtue of collective bargaining agreements between bona 23 fide labor organizations that represent employees of not-for-profit 24 theaters including but not limited to actors, stage managers, production 25 assistants, scenic artists, scenic designers, costume designers, light- 26 ing designers, sound designers, projection designers, graphic artists, 27 art and costume department coordinators, ushers, ticket takers, line 28 directors, press agents, company managers, theatre managers, and employ- 29 ers of such employees performing work on a production funded by an arts 30 agency where such labor organization represents at least thirty per 31 centum of employees in the locality where such work is being performed. 32 The prevailing rate of wage shall be annually determined in accordance 33 herewith by the fiscal officer no later than thirty days prior to July 34 first of each year, and the prevailing rate of wage for the period 35 commencing July first of such year through June thirtieth, inclusive, of 36 the following year shall be the rate of wage set forth in such collec- 37 tive bargaining agreements for the period commencing July first through 38 June thirtieth, including those increases for such period which are 39 directly ascertainable from such collective bargaining agreements by the 40 fiscal officer in such officer's annual determination. In the event 41 that it is determined after a contest, as provided in section two 42 hundred twenty-eight-c of this article, that less than thirty percent of 43 the employees in the locality where the work is being performed receive 44 a collectively bargained rate of wage, then the average wage paid to 45 such employees in the locality for the twelve-month period preceding the 46 fiscal officer's annual determination shall be the prevailing rate of 47 wage. Employees for whom a prevailing rate of wage is to be determined 48 shall not be considered in determining such prevailing wage. 49 13. "Production" means a corporation, partnership, limited partner- 50 ship, or other entity or individual that provides compensation to an 51 employee. 52 14. "Substantially-owned affiliated entity" means the parent company 53 of the contractor or subcontractor, any subsidiary of the contractor or 54 subcontractor, or any entity in which the parent of the contractor or 55 subcontractor owns more than fifty percent of the voting stock, or an 56 entity in which one or more of the top five shareholders of the contrac- 
 S. 3037 5 1 tor or subcontractor individually or collectively also owns a control- 2 ling share of the voting stock, or an entity which exhibits any other 3 indicia of control over the contractor or subcontractor or over which 4 the contractor or subcontractor exhibits control, regardless of whether 5 or not the controlling party or parties have any identifiable or docu- 6 mented ownership interest. Such indicia shall include power or responsi- 7 bility over employment decisions, access to and/or use of the relevant 8 entity's assets or equipment, power or responsibility over contracts of 9 the entity, responsibility for maintenance or submission of certified 10 payroll records, and influence over the business decisions of the rele- 11 vant entity. 12 15. "Subsidiary" means an entity that is controlled directly, or indi- 13 rectly through one or more intermediaries, by a contractor or subcon- 14 tractor or the contractor's parent company. 15 16. "Successor" means an entity engaged in work substantially similar 16 to that of the predecessor, where there is substantial continuity of 17 operation with that of the predecessor. 18 17. "Supplements" means all remuneration for employment paid in any 19 medium other than cash, or reimbursement for expenses, or any payments 20 which are not "wages" within the meaning of the law, including, but not 21 limited to, health, welfare, non-occupational disability, retirement and 22 vacation benefits, holiday pay, life insurance, and apprenticeship 23 training. 24 18. "Wage" includes: (a) basic hourly cash rate of pay; and (b) fringe 25 benefits including medical or hospital care, pensions on retirement or 26 death, compensation for injuries or illness resulting from occupational 27 activity, or insurance to provide any of the foregoing, unemployment 28 benefits, life insurance, disability and sickness insurance, accident 29 insurance, vacation and holiday pay, costs of apprenticeship or other 30 similar programs and other bona fide fringe benefits not otherwise 31 required by federal, state or local law to be provided by the contractor 32 or subcontractor. 33 § 228-a. Prevailing wage requirement for not-for-profit theaters and 34 payment of their employees on productions funded by the New York state 35 council on the arts or arts agencies of localities; record keeping. 1. 36 In all cases where work is being performed pursuant to a collective 37 bargaining agreement the contractor or subcontractor shall keep original 38 payrolls or transcripts thereof, subscribed and confirmed by the 39 contractor or subcontractor as true, under penalty of perjury, showing 40 the hours and days worked by each employee, the craft, trade or occupa- 41 tion at which the employee was employed, and the wages paid. 42 2. Where the wages paid include sums which are not paid directly to 43 the employees weekly and which are expended for supplements, the records 44 required to be maintained shall include a record of such hourly payment 45 on behalf of such employees, the supplement for which such payment has 46 been made, and the name and address of the person to whom such payment 47 has been made. In all such cases, the contractor shall keep a true and 48 inscribed copy of the agreement under which such payments are made, a 49 record of all net payments made thereunder, and a list of all persons 50 for whom such payments are made. 51 3. The records required to be maintained shall be kept on the site of 52 the work during all of the time that work under the contract is being 53 performed. 54 4. All records required to be maintained shall be preserved for a 55 period of three years after the completion of work. 
 S. 3037 6 1 § 228-b. Powers of the fiscal officer. 1. In addition to the powers 2 enumerated elsewhere in this article, the fiscal officer shall have the 3 power to: 4 (a) cause an investigation to be made to determine the wages prevail- 5 ing in any locality for work performed by employees covered by this 6 article and in making such investigation, the fiscal officer may utilize 7 wage and fringe benefit data from various sources including, but not 8 limited to, data and determinations of federal, state or other govern- 9 mental agencies; 10 (b) institute and conduct inspections at the site of the work or else- 11 where in aid of the effective administration and enforcement of the 12 provisions of this article; 13 (c) examine the books, documents and records pertaining to the wages 14 paid to, and the hours of work performed by, such employees; 15 (d) hold the hearings provided for in this article, and in connection 16 therewith, to issue subpoenas, administer oaths and examine witnesses. 17 The enforcement of a subpoena issued under this section shall be regu- 18 lated by the civil practice law and rules; 19 (e) make a classification by craft, trade or other generally recog- 20 nized occupational category of the employees involved and to determine 21 whether such work has been performed by the employees in such classi- 22 fication; 23 (f) require a contractor or subcontractor to file with the fiscal 24 officer a record of the wages actually paid by such contractor or 25 subcontractor to the employees and of their hours of work; 26 (g) delegate any of the foregoing powers to the fiscal officer's depu- 27 ty or other authorized representative; 28 (h) provide such reasonable limitations from any or all provisions of 29 this article as the fiscal officer may find necessary and proper in the 30 public interest or to avoid serious impairment of the conduct of govern- 31 ment business; and 32 (i) propose, and after public hearing held before the fiscal officer 33 or the fiscal officer's designee, promulgate such rules as the fiscal 34 officer shall consider necessary for the proper execution of the duties, 35 responsibilities and powers conferred upon the fiscal officer by the 36 provisions of this article. Such rules may allow such reasonable vari- 37 ations, tolerances and exemptions to and from any or all provisions of 38 this article as the fiscal officer may find necessary and proper in the 39 public interest, or to avoid serious impairment of the conduct of 40 government business. 41 2. For all work for which the commissioner is the fiscal officer, the 42 commissioner shall additionally have all the powers granted to the 43 commissioner elsewhere in this chapter. 44 § 228-c. Investigation and hearing. 1. Whenever the fiscal officer has 45 reason to believe that an employee has been paid less than the wages 46 stipulated in the contract, or if such contract has no wage schedule 47 attached thereto and the fiscal officer has reason to believe that an 48 employee has been paid less than the wages prevailing for the employee's 49 craft, trade or occupation, the fiscal officer may, and upon receipt of 50 a written complaint from an employee employed thereon, conduct a special 51 investigation to determine the facts relating thereto. 52 2. (a) At the start of such investigation the fiscal officer may noti- 53 fy the financial officer of the arts agency interested who shall, at the 54 direction of the fiscal officer, forthwith withhold from any payment due 55 to the contractor or subcontractor executing the contract sufficient 56 money to safeguard the rights of the employees and to cover the civil 
 S. 3037 7 1 penalty that may be assessed as provided herein, or, if there are insuf- 2 ficient moneys still due to be disbursed to the contractor or subcon- 3 tractor to safeguard the rights of the employees and to cover the civil 4 penalty that may be assessed as provided herein, the financial officer 5 of another arts agency which has entered or subsequently enters into a 6 contract with the contractor or subcontractor, shall withhold from any 7 such payment to the contractor or subcontractor executing any work, 8 sufficient moneys to safeguard the rights of the employees and to cover 9 the civil penalty that may be assessed as provided herein. 10 (b) If there are still insufficient moneys still due to be disbursed 11 to the contractor or subcontractor to safeguard the rights of the 12 employees and to cover the civil penalty that may be assessed as 13 provided herein, the financial officer shall immediately so notify the 14 fiscal officer, who may issue a notice of withholding to any of the 15 following: any substantially-owned affiliated entity or successor or 16 subsidiary of the contractor or subcontractor, an officer of the 17 contractor or subcontractor who knowingly participated in the violation 18 of this article, any of the partners, if the contractor or subcontractor 19 is a partnership, or any of the five largest shareholders of the 20 contractor or subcontractor, as determined by the fiscal officer. 21 (c) The notice of withholding shall provide that the fiscal officer 22 intends to instruct the financial officer, not less than ten days 23 following of the notice by mail, to withhold sufficient moneys to safe- 24 guard the rights of the employees and to cover the civil penalty that 25 may be assessed as provided herein, from any payment due the notified 26 party under any contract pending final determination. The notice of 27 withholding shall provide that within thirty days following the date of 28 the notice of withholding the notified party may contest the withholding 29 on the basis that the notified party is not a partner or one of the five 30 largest shareholders of the subcontractor or contractor, an officer of 31 the contractor or subcontractor who knowingly participated in the 32 violation of this article, or a substantially-owned affiliated entity or 33 successor. If the notified party fails to contest the notice of with- 34 holding, or if the fiscal officer, after reviewing the information 35 provided by the notified party in such contest, determines that the 36 notified party is a partner or one of the five largest shareholders, a 37 substantially-owned affiliated entity, an officer of the contractor or 38 subcontractor who knowingly participated in the violation of this arti- 39 cle, or a successor, the fiscal officer may instruct the financial offi- 40 cer to immediately withhold sufficient moneys to safeguard the rights of 41 the employees and to cover the civil penalty that may be assessed as 42 provided herein from funds still to be disbursed to the notified party 43 under any contract pending the final determination. 44 (d) The financial officer shall immediately implement the notice of 45 withholding and confirm in writing to the fiscal officer the amount of 46 money withheld. 47 (e) If the notified party contests the withholding after a withholding 48 has been effected, and if the fiscal officer determines that the noti- 49 fied party is not a partner or one of the five largest shareholders, a 50 substantially-owned affiliated entity or successor, or an officer of the 51 contractor or subcontractor who knowingly participated in the violation 52 of this article, the fiscal officer shall immediately notify the finan- 53 cial officer to release all funds being withheld from the notified 54 party. 55 (f) The money shall be held in trust pending completion of the inves- 56 tigation. 
 S. 3037 8 1 3. If, despite the requirements of law, the contract for the work has 2 been awarded without the annexation thereto of the schedule of wages 3 provided for in this article, the fiscal officer shall determine in the 4 proceeding before such fiscal officer the wages prevailing at the time 5 the work was performed for the crafts, trades or occupations of the 6 employees involved. 7 4. In an investigation conducted under the provisions of this section, 8 the inquiry of the fiscal officer shall not extend to work performed 9 more than two years prior to: 10 (a) the filing of the complaint; or 11 (b) the commencement of the investigation upon the fiscal officer's 12 own volition, whichever is earlier in point of time. 13 5. (a) The investigation and hearing shall be expeditiously conducted 14 and upon the completion thereof the fiscal officer shall determine the 15 issues raised and shall make and file an order in the fiscal officer's 16 office stating such determination and forthwith serve personally or by 17 mail a copy of such order and determination together with a notice of 18 filing upon all parties to the proceeding and upon the financial officer 19 of the arts agency involved. 20 (b) In addition to directing payment of wages found to be due, such 21 order of the fiscal officer may direct payment of a further sum as a 22 civil penalty in an amount not exceeding twenty-five percent of the 23 total amount found to be due. In assessing the amount of the penalty, 24 due consideration shall be given to the size of the employer's business, 25 the good faith of the employer, the gravity of the violation, the histo- 26 ry of previous violations of the employer, successor or substantially- 27 owned affiliated entity or any successor of the contractor or subcon- 28 tractor, any officer of the contractor or subcontractor who knowingly 29 participated in the violation of this article, and any of the partners 30 if the contractor or subcontractor is a partnership or any of the five 31 largest shareholders of the contractor or subcontractor, as determined 32 by the fiscal officer, of such underpayment of wages or supplements, and 33 any officer of the contractor or subcontractor who knowingly partic- 34 ipated in the violation of this article, and the failure to comply with 35 record keeping or other non-wage requirements. Where the fiscal officer 36 is the commissioner, the penalty shall be paid to the commissioner for 37 deposit in the state treasury. Where the fiscal officer is a city comp- 38 troller or other analogous officer, the penalty shall be paid to said 39 officer for deposit in the city treasury. 40 (c) If the order directs the payment to specified employees of wages 41 found to be due and unpaid, including interest at a rate not less than 42 six per centum per year and not more than the rate of interest then in 43 effect as prescribed by the superintendent of financial services pursu- 44 ant to section fourteen-a of the banking law per annum from the time 45 such wages should have been paid, the financial officer of such arts 46 agency shall, upon the service to the financial officer of such order, 47 pay to such employees from the trust money withheld the amounts speci- 48 fied in such order and shall pay the civil penalty as provided herein, 49 provided no review proceeding pursuant to the provisions of article 50 seventy-eight of the civil practice law and rules is commenced within 51 thirty days of the date said order was filed in the office of the fiscal 52 officer. If such review is timely commenced, the money withheld shall 53 remain in trust pending final disposition of the review proceeding. In 54 determining the rate of interest to be imposed the fiscal officer shall 55 consider the size of the employer's business, the good faith of the 56 employer, the gravity of the violation, the history of previous 
 S. 3037 9 1 violations of the employer, successor or substantially-owned affiliated 2 entity or any successor of the contractor or subcontractor, any officer 3 of the contractor or subcontractor who knowingly participated in the 4 violation of this article, and any of the partners if the contractor or 5 subcontractor is a partnership or any of the five largest shareholders 6 of the contractor or subcontractor, as determined by the fiscal officer, 7 and the failure to comply with record keeping or other non-wage require- 8 ments. 9 6. When a final determination has been made and such determination is 10 in favor of an employee, such employee may, in addition to any other 11 remedy provided by this article, institute an action in any court of 12 appropriate jurisdiction against the person or corporation found to have 13 violated this article, any substantially-owned affiliated entity or any 14 successor of the contractor or subcontractor, any officer of the 15 contractor or subcontractor who knowingly participated in the violation 16 of this article, and any of the partners if the contractor or subcon- 17 tractor is a partnership or any of the five largest shareholders of the 18 contractor or subcontractor, as determined by the fiscal officer, for 19 the recovery of the difference between the sum, if any, actually paid to 20 the employee by the aforesaid financial officer pursuant to said order 21 and the amount found to be due the employee as determined by said order. 22 Such action must be commenced within three years from the date of the 23 filing of said order, or if the said order is reviewed in a proceeding 24 pursuant to article seventy-eight of the civil practice law and rules, 25 within three years after the termination of such review proceeding. 26 Provided that no proceeding for judicial review as provided in this 27 section shall then be pending and the time for initiation of such 28 proceeding shall have expired, the fiscal officer may file with the 29 county clerk of the county where the employer resides or has a place of 30 business the order of the fiscal officer containing the amount found to 31 be due. The filing of such order shall have the full force and effect of 32 a judgment duly docketed in the office of such clerk. The order may be 33 enforced by and in the name of the fiscal officer in the same manner, 34 and with like effect, as that prescribed by the civil practice law and 35 rules for the enforcement of a money judgment. 36 7. When, pursuant to the provisions of this section, two final orders 37 have been entered against a contractor, subcontractor, successor, or any 38 substantially-owned affiliated entity of the contractor or subcontrac- 39 tor, any of the partners if the contractor or subcontractor is a part- 40 nership, any of the five largest shareholders of the contractor or 41 subcontractor, any officer of the contractor or subcontractor who know- 42 ingly participated in the violation of this article within any consec- 43 utive six-year period determining that such contractor or subcontractor 44 and/or its successor, substantially-owned affiliated entity of the 45 contractor or subcontractor, any of the partners or any of the five 46 largest shareholders of the contractor or subcontractor, any officer of 47 the contractor or subcontractor who knowingly participated in the 48 violation of this article has willfully failed to pay the prevailing 49 wages in accordance with the provisions of this article, whether such 50 failures were concurrent or consecutive and whether or not such final 51 determinations concerning separate public contracts are rendered simul- 52 taneously, such contractor, subcontractor, successor, and if the 53 contractor, subcontractor, successor, or any substantially-owned affil- 54 iated entity of the contractor or subcontractor, any of the partners if 55 the contractor or subcontractor is a partnership, or any of the five 56 largest shareholders of the contractor or subcontractor, any officer of 
 S. 3037 10 1 the contractor or subcontractor who knowingly participated in the 2 violation of this article, or any successor is a corporation, any offi- 3 cer of such corporation who knowingly participated in such failure, 4 shall be ineligible to submit a grant application or be awarded a grant 5 by an arts agency covered by this article for a period of five years 6 from the date of the second order, provided, however, that where any 7 such final order involves the falsification of payroll records or the 8 kickback of wages, the contractor, subcontractor, successor, substan- 9 tially-owned affiliated entity of the contractor or subcontractor, any 10 partner if the contractor or subcontractor is a partnership or any of 11 the five largest shareholders of the contractor or subcontractor, any 12 officer of the contractor or subcontractor who knowingly participated in 13 the violation of this article shall be ineligible to submit a grant 14 application or be awarded a grant, contract or subcontract with the 15 state, or any municipal corporation or public body for a period of five 16 years from the date of the first final order. Nothing in this subdivi- 17 sion shall be construed as affecting any provision of any other law or 18 regulation relating to the awarding of public contracts or grants. 19 8. (a) When a final determination has been made in favor of a 20 complainant and the contractor or subcontractor found violating this 21 article has failed to make payment as required by the order of the 22 fiscal officer, and provided that no relevant proceeding for judicial 23 review shall then be pending and the time for initiation of such 24 proceeding shall have expired, the fiscal officer may file a copy of the 25 order of the fiscal officer containing the amount found to be due with 26 the county clerk of the county of residence or place of business of any 27 of the following: 28 (i) any substantially-owned affiliated entity or any successor of the 29 contractor or subcontractor; 30 (ii) any of the partners if the contractor or subcontractor is a part- 31 nership or any of the five largest shareholders of the contractor or 32 subcontractor, as determined by the fiscal officer; or 33 (iii) any officer of the contractor or subcontractor who knowingly 34 participated in the violation of this article; provided, however, that 35 the fiscal officer shall within five days of the filing of the order 36 provide notice thereof to the partner or a top five shareholder or 37 successor or substantially-owned affiliated entity. The notified party 38 may contest the filing on the basis that it is not a partner or a top 39 five shareholder, an officer of the contractor or subcontractor who 40 knowingly participated in the violation of this article, successor or 41 substantially-owned affiliated entity. If, after reviewing the informa- 42 tion provided by the notified party in support of such contest, the 43 fiscal officer determines that the notified party is not within the 44 definitions described herein, the fiscal officer shall immediately with- 45 draw the filing of the order. 46 (b) The filing of such order shall have the full force and effect of a 47 judgment duly docketed in the office of such clerk. The order may be 48 enforced by and in the name of the fiscal officer in the same manner, 49 and with like effect, as that prescribed by the civil practice law and 50 rules for the enforcement of a money judgment. 51 9. When a final determination has been made against a subcontractor in 52 favor of a complainant and the contractor has made payment to the 53 complainant of any wages and interest due the complainant and any civil 54 penalty, and providing that no relevant proceeding for judicial review 55 shall then be pending and the time for initiation of such proceeding 56 shall have expired, the contractor may file a copy of the order of the 
 S. 3037 11 1 fiscal officer containing the amount found to be due with the county 2 clerk of the county of residence or place of business of the subcontrac- 3 tor. The filing of such order shall have the full force and effect of a 4 judgment duly docketed in the office of such clerk. The judgment may be 5 docketed in favor of the contractor who may proceed as a judgment credi- 6 tor against the subcontractor for the recovery of all monies paid by the 7 contractor under such order. 8 § 228-d. Failure to protest underpayments. Notwithstanding any incon- 9 sistent provision of this chapter or of any other general, special or 10 local law, ordinance, charter or administrative code, an employee shall 11 not be barred from the right to recover the difference between the 12 amount actually paid to the employee and the amount which should have 13 been paid to the employee pursuant to an order entered under the 14 provisions of this article because of the prior receipt by the employee 15 without protest of wages paid or on account of the employee's failure to 16 state orally or in writing upon any payroll or receipt which the employ- 17 ee is required to sign that the wages received by the employee are 18 received under protest, or on account of the employee's failure to indi- 19 cate the employee's protest against the amount, or that the amount so 20 paid does not constitute payment in full of wages due the employee for 21 the period covered by such payment. 22 § 228-e. Statements showing amounts due for wages. 1. Subcontractors 23 engaged for work by a contractor or its subcontractor shall, upon 24 receipt from the contractor or its subcontractor of the schedule of 25 wages and supplements specified in the contract, provide to the contrac- 26 tor or its subcontractor a verified statement attesting that the subcon- 27 tractor has received and reviewed such schedule of wages and supple- 28 ments, and agrees that it will pay the applicable prevailing wages and 29 will pay or provide the supplements specified therein. Such verified 30 statement shall be filed in the manner described in subdivision three of 31 this section. It shall be a violation of this article for any contractor 32 or its subcontractor to fail to provide for its subcontractor a copy of 33 the schedule of wages and supplements specified in the contract. 34 2. Before grant funds are released by an arts agency it shall be the 35 duty of the comptroller or the financial officer of such arts agency or 36 other officer or person charged with the custody and disbursement of the 37 grant funds pursuant to the contract and under which payment is made, to 38 require the contractor to file a statement in writing in form satisfac- 39 tory to such officer certifying to the amounts then due and owing from 40 such contractor filing such statement to or on behalf of any and all 41 employees for daily or weekly wages on account of labor performed upon 42 the work under the contract, setting forth therein the names of the 43 persons whose wages are unpaid and the amount due to or on behalf of 44 each respectively, which statement so to be filed shall be verified by 45 the oath of the contractor that the contractor has read such statement 46 subscribed by the contractor and knows the contents thereof, and that 47 the same is true of the contractor's own knowledge. 48 3. Before payment is made by or on behalf of an arts agency of any 49 sums due on account of a contract and representing the final portion of 50 twenty percent of the total amount payable under the contract, it shall 51 be the duty of the comptroller or the financial officer of such arts 52 agency or other officer or person charged with the custody and disburse- 53 ment of the grant funds applicable to the contract under and pursuant to 54 which payment is made to require the contractor to file every verified 55 statement required to be obtained by the contractor from its subcontrac- 56 tors pursuant to subdivision one of this section and to file a statement 
 S. 3037 12 1 in writing in form satisfactory to such officer setting forth the 2 amounts known by the contractor to be then due and owing from a subcon- 3 tractor, or from a subcontractor of such subcontractor, for such wages 4 and supplements, or certifying that the contractor has no knowledge of 5 such amounts owing to or on behalf of any employees of its subcontrac- 6 tors, and that in the event it is determined by the commissioner that 7 the wages or supplements or both of any employees of such subcontractors 8 have not been paid or provided pursuant to the appropriate schedule of 9 wages and supplements, the contractor shall be responsible for payment 10 of such wages or supplements pursuant to the provisions of section two 11 hundred twenty-eight-a of this article. Before final payment is made of 12 any sums due on account of such contract, the contractor shall be 13 required to file a supplemental statement setting forth any additional 14 amounts known by the contractor to be then due and owing by each subcon- 15 tractor for such wages or supplements, or that the contractor has no 16 knowledge of such amounts owing to or on behalf of any employee of its 17 subcontractors. Such statements so to be filed shall be verified by the 18 oath of the contractor that the contractor has read such statements 19 subscribed by the contractor and knows the contents thereof, and that 20 the same is true of the contractor's own knowledge, except with respect 21 to wages and supplements owing by subcontractors which may be certified 22 upon information and belief. 23 4. If any interested person shall have previously filed a protest in 24 writing objecting to the release of grant funds to any contractor or 25 subcontractor to the extent of the amount or amounts due or to become 26 due to such person for daily or weekly wages for labor performed on the 27 work which was funded by such grant, or if for any other reason it may 28 be deemed advisable, the comptroller or the financial officer of the 29 arts agency or other officer or person charged with the custody and 30 disbursement of the grant funds applicable to the contract for such 31 work, may deduct from the whole amount of any payment on account thereof 32 the sum or sums admitted by any contractor or subcontractor in such 33 statement or statements as filed to be due and owing by the contractor 34 or subcontractor on account of labor performed on such work before 35 disbursing such grant funds, and may withhold the amount so deducted for 36 the benefit of the employees whose wages are unpaid as shown by the 37 verified statements filed by any contractor or subcontractor, and may 38 pay directly to any person the amount or amounts shown by the statements 39 filed as hereinbefore required to be due to such person or such person's 40 duly authorized collective bargaining labor organization receiving such 41 payment to the extent of the amount thereof. 42 § 228-f. Provisions in contracts prohibiting discrimination on account 43 of race, creed, color, national origin, age, sex or disability. Every 44 contract for work shall contain provisions by which the contractor 45 agrees: 46 1. that in the hiring of employees for the performance of work under 47 the contract or any subcontract thereunder within the territorial limits 48 of this state, no contractor or subcontractor, nor any person acting on 49 behalf of such contractor or subcontractor, shall by reason of race, 50 creed, color, national origin, age, sex or disability, discriminate 51 against any citizen of the state of New York who is qualified and avail- 52 able to perform the work to which the employment relates; 53 2. that no contractor or subcontractor, nor any person acting on such 54 entity's behalf shall, in any manner, discriminate against or intimidate 55 any employee hired for the performance of work under the contract on 56 account of race, creed, color, national origin, age, sex or disability; 
 S. 3037 13 1 3. that there may be deducted from the amount payable to the contrac- 2 tor by the arts agency under the contract a penalty of fifty dollars for 3 each person for each day during which such person was discriminated 4 against or intimidated in violation of the provisions of the contract; 5 and 6 4. that the contract may be cancelled or terminated by the arts agen- 7 cy, and all moneys otherwise to be disbursed pursuant to such contract 8 may be forfeited for a second or any subsequent violation of the terms 9 or conditions of this section of the contract. 10 § 228-g. Penalties. 1. Any contractor or subcontractor who shall upon 11 such entity's oath verify any statement required to be filed under this 12 article which is known by such entity to be false shall be guilty of 13 perjury and punishable as provided by the penal law. 14 2. When a contract contains as part thereof a schedule of wages as 15 provided for in this article, any contractor who, after entering into 16 such contract, and any subcontractor of such contractor fails to pay to 17 any employee the wages stipulated in such wage schedule is guilty of a 18 misdemeanor and upon conviction shall be punished for a first offense by 19 a fine of five hundred dollars or by imprisonment for not more than 20 thirty days or by both such fine and imprisonment; for a second offense 21 by a fine of one thousand dollars, and in addition thereto the contract 22 on which the violation has occurred shall be forfeited; and no such 23 contractor shall be entitled to receive any sum, nor shall any officer, 24 agent or employee of the contracting arts agency pay any such sum or 25 authorize its payment from the funds under such entity's charge or 26 control to such contractor for work done upon the contract on which the 27 contractor has been convicted of a second offense. If the contractor or 28 subcontractor is a corporation, any officer of such corporation who 29 knowingly permits the corporation to fail to make such payment shall 30 also be guilty of a misdemeanor and the criminal and civil penalties 31 herein shall attach to such officer upon conviction. 32 § 228-h. Enforcement of article. If the fiscal officer, as defined 33 herein, finds that any contractor fails to comply with or evades the 34 provisions of this article, the fiscal officer shall present evidence of 35 such noncompliance or evasion to the arts agency having charge of such 36 contract for enforcement. Where such evidence indicates noncompliance or 37 evasion on the part of a subcontractor, the contractor shall be respon- 38 sible for such noncompliance or evasion. It shall be the duty of the 39 arts agency in charge of such contract to enforce the provisions of this 40 article. 41 § 4. Severability. If any clause, sentence, paragraph, subdivision, 42 section or part of this act shall be adjudged by any court of competent 43 jurisdiction to be invalid, such judgment shall not affect, impair, or 44 invalidate the remainder thereof, but shall be confined in its operation 45 to the clause, sentence, paragraph, subdivision, section or part thereof 46 directly involved in the controversy in which such judgment shall have 47 been rendered. It is hereby declared to be the intent of the legislature 48 that this act would have been enacted even if such invalid provisions 49 had not been included herein. 50 § 5. This act shall take effect on the ninetieth day after it shall 51 have become a law and shall apply to any grant award made subsequent to 52 such effective date.